First, I think the case will galvanize public-use litigation even though New London won. Kelo was expected to lose 7-2 or 8-1, but the decision was 5-4, and with really strong dissents by Justices Thomas and O’Connor, and a concurring opinion by Kennedy that gives litigants some useful pointers how to win the next case. I think most land-use lawyers and most state courts will see the closeness of the case as a sign to reconsider public-use law seriously.
Second, in his dissent, Justice Thomas made it respectable to go back to the original meaning of "public use" -- government property like courthouses and roads, or property owned by utilities with a duty of access to the public. Thomas also said that the Founders regarded property as a "fundamental, natural right."
Third, and most important, Kelo made it crystal-clear that it’s a risky business to expect federal-court judges to defend property rights. It’s not enough to armchair-criticize a court opinion; citizens who want to protect their rights need to organize locally. Ironically, by losing, Kelo may end up doing property rights more of a favor -- by galvanizing ordinary citizens to support efforts to redraft state state "blight," "economic development," and "TIF" laws. These are the laws that give local governments to condemn land and assign it to businesses or local developers. These laws usually are quite open-ended, and they usually signal to state courts that the courts ought to defer to local findings that condemnations are necessary. Practically, I don’t think public-use law will ever be able to fix the abuse; what is needed is state legislation that (a) sets clear and agreed-on criteria saying when it is appropriate to use eminent domain, (b) requires courts to review local determinations independently, and (c) requires local governments to consider what impact proposed condemnations will have on property rights.
Anyone who’s interested should consult the Claremont Institute’s Center for Local Government, which is active in these things.]]>
First, anyone whos outraged by the result needs to understand that the law went south more than 50 years ago. In a 1954 case called Berman v. Parker, the Supreme Court gave local governments broad power to use "blight" as a rationale to redistribute private property, and suggested in the process that the Public Use Clause was a dead letter. My sense is that, by the 1970s and 1980s, local governments had gotten so accustomed to deference that they stopped using blight and started citing economic development by itself. Kelo just ratified that development.
To be sure, its a little more egregious when the city kicks an owner out purely to generate more revenue than when it does so on the pretext that the owners land is blighted because it doesnt have a 2-car garage. But anyone whos mad about Kelo should have been mad about Berman. I guess Kelos different because its a new decision, because condemnation is more prevalent now than it was in 1954, because pro-property groups are better organized now than then, and -- most of all -- because in Kelo the Supreme Court issued a holding that everyone can understand without complicating issues like "blight."]]>
This presidential campaign has taken some strange turns -- who’d have thunk we’d need to know about the design of 1970s-vintage typewriters to decide how to vote -- but when it’s all said and done the most important issue in the election is how well the Bush Administration is prosecuting the war on terror. From that perspective, I think the most useful document to read before the election is an article to which Peter directed everyone’s attention a few weeks ago -- this article by Norman Podhoretz. Podhoretz’s article, though long, is probably the best justification of and apology for the Bush approach available in article-length form.
As of now, it doesn’t seem as if the Democrats are going to propose a serious response to the "Bush doctrine." So, I want to ask here whether the Bush doctrine can be outflanked on the right. In my judgment, the most serious rival has been set forth in a series of articles by Angelo Codevilla in the Claremont Review of Books -- particularly the first in the series, "Victory: What It Will Take to Win." Let me spell out some of the differences.
Podhoretz and Codevilla diagnose the same symptoms. Tyrants in the Arab world started using terror against the West as a standard tool of policy in the 1970s. The West didn’t respond for 3 decades, in part because it was focused on the Soviet Union, and in part because foreign-policy elites in Western countries are ideologically blinded to the fact that Islamicists really do hate the West and want to kill Westerners. That said, Podhoretz & Codevilla differ about the cure. Podhoretz takes a more Wilsonian approach -- use the promise of liberal democracy as an ideological weapon to take the fight into the heart of Islamism. Codevilla takes a more Machiavellian approach -- the best way to win the war on terror is not to democratize, but rather to kill the tyrants and regimes that support anti-US terrorism and make it clear to their replacements that they will receive the same treatment if they resort to terror themselves.
I think it’s really worthwhile to read both articles and ask which is right. Too bad we’re not having a campaign in which the following questions are being asked: First, how much of America is opposed to prosecuting the war on terror vigorously? Podhoretz paints a really vivid picture showing that the radical left has mobilized against the Iraq war much faster than it mobilized against Vietnam. For Codevilla, though, the "left" --the segment of America that is unreliable -- is far broader. It includes CIA and State Department types and university talking heads who subscribe to Wilsonian internationalist commitments. Those commitments, Codevilla believes, virtually guarantee that the U.S. will bungle occupations like the Iraq occupation.
Second, how much is American warmaking tied down by domestic disagreements? Podhoretz seems to say that the Republicans must win in 2004 to guarantee that we will see Iraq through. Codevilla would probably say, however, that the Bush approach is bad military strategy. It is easy to maintain public support while fighting an army in battle, much harder to sustain support for an occupation. Better to follow a strategy that frees the military to hit and run -- to focus on tyrant killing and not nation building.
Finally, how much can the US do to create a liberal democracy in the Middle East by active intervention? Podhoretz thinks it likely enough to make the risks worth taking. Codevilla is more pessimistic. For instance, he wonders with what right and on what basis America would presume to remake Iraq as one single country. After all, the country is less than 80 years old. That’s as old as the US was as of the Civil War, and our differences then weren’t nearly as intractable as the Kurds, Sunnis, and Shiites’ are now.
]]>Given McConnell, I cannot be confident that my
colleagues are wrong in thinking that five Justices will go
along. But I also do not understand how that position can be
reconciled with established principles of constitutional law.
(Thanks to Stuart Bucks The Buck Stops Here.)]]>
The short of it--really good movie directors appreciate that the way to impress a movie audience is not to show the violence on the screen, but instead to suggest it off-screen in a way that makes the audiences imagination do more of the work. This rule of thumb stems from a classical understanding of art, and in particular a classical understanding of the objects and limitations of visual art. If Warren (and the classics) are right, The Passion may suffer on an artistic level. But well have to go see the movie to judge for ourselves.]]>
I have a strange interest in complicated insults. Like in The Iliad, when Achilles tells all the Greeks that King Agamemnon has the eyes of a dog and the heart of a deer. At first, it makes no sense, then you realize that Agamemnon must be pretty ugly, because it would be better to have the eyes of a deer than a dog, then you realize that Agamemnon must be pretty craven, because it would be better to have the heart of a dog than a deer, and so forth . . . . Anyway, Henninger’s insight about O’Neill’s phrase is just devastating. O’Neill heaped a complicated insult on himself.]]>
In my own deep-oil fryer
Angioplasty . . .
More important, the extended version adds scenes that flesh out the moral tension in the movie. Steve Hayward has expressed some good pet peeves about the movies, but I have one too. Mine is that the movies have eliminated dialogue from the books showing how evil corrupts judgment. Sauron, the most powerful being in Middle Earth, is so consumed by the lust for domination that he cannot possibly imagine that his adversaries might wish to destroy the Ring, the one object they might use to dominate him. In the books, the wisest leaders of the free peoples show they understand that Saurons corruption gives them an advantage over an otherwise overpowering enemy. Ive grumbled through the 2 movies because this dialogue never made it on to screen, but it has now in the extended version. Worth my $30.]]>
Tricky question. On one hand, McClintock did conservatives a favor by forcing Arnold to mind his right flank until the end of the race. And McClintock kept conservatives from having any responsibility if Arnold & Pete Wilsons advisers try to raise taxes, or if the Sacramento Dems flay Arnold once hes in office. On the other hand, Arnolds margin of victory and McClintocks low showing will tempt Arnold and Wilsons advisers to think that the conservatives are irrelevant. And if Arnold blows it, I bet the California Republican Party will get blamed no matter what McClintock & the conservatives say or do.]]>
Wesley Smiths take is to say that McClintock is positioning himself for statewide office, e.g. like running against Barbara Boxer in 2004. He knows hes not going to win the recall, but hes using his message and the free media to build toward next year or thereafter. Even though he is not conceding to or endorsing Arnold, Smith argues, McClintock has taken the high road by not speaking ill of Arnold. This is not an unreasonable interpretation of events. The obvious questions are: Could McClintock earn more gratitude -- and reciprocity for 2004 -- from nonconservative Republicans by conceding to Arnold to cement a victory now? On the other hand, how much does McClintock protect his fortunes and those of Californias conservatives against Arnolds being a disaster of a governor by not endorsing Arnold?
]]>McClintock should do this especially if he wants to run for office two or four years from now. This reminds me of one of my favorite lessons from Abe Lincoln, who had to bow out once for the good of the cause. In 1854, to get a railroad bill through, Stephen Douglas acceded to the wishes of fire-eaters in the Senate and repealed enough of the Missouri Compromise to reopen the question whether Kansas and Nebraska should be free- or slave-soil states. That move fractured party alignments in Illinois, as it did throughout the North.
Lincoln did more than anyone else on the hustings in Illinois to explain why Douglas bill was disastrous. In the 1854 elections, Whigs and free-soil Democrats made huge gains in Illinois and elsewhere. The Illinois legislature needed to vote that winter to elect a U.S. Senator. I forget the exact numbers, but party-line Democrats had a plurality, but a free-soil Senator could win if six free-soil Democrats sided with the Whigs. There was a deadlock after many ballots, Lincoln got the Whig votes, Lyman Trumbull got the free-soil D. votes, but neither could get a majority. Eventually, Lincoln told the Whigs to throw their votes to Trumbull. It was more important to elect a free-soil Senator than for the Whigs to win.
Im not sure we can imagine the sacrifice Lincoln was making at the time. Lincoln was an incredibly ambitious man. But in 1854, he had 0 political prospects. Hed been out of Congress for 4 years and he was languishing in private practice. By all rights, he deserved that Senate seat; hed done more than anyone else in Illinois to explain the case against Douglas. By throwing in the towel, he was throwing away the chance to get back in the game, at a time when the country was hurtling toward the greatest political test any country can experience, a civil war about the nature of the regime. But Lincoln let Trumbull get the office and the honors, because the cause was more important than the man.
In the end, Lincolns sacrifice helped the cause -- and himself -- tremendously. Lincolns generosity taught free-soil Democrats and Whigs throughout the midwest that they had more in common with each other than they did with party-line Democrats, who took their orders from the fireeaters. That lesson helped the Republican party form. Also, Lincoln had a better chance than other Republicans of winning Democrat votes because Democrats thought fondly of him from 1854 forward. Good lessons for McClintock in 2004.
]]>This is a very important phenomenon. Ever since the 1970s -- read, ever since the federal government grew massively during the Great Society and the Nixon Administration -- no member of Congress has ever won the Presidency. Walter Mondale and Bob Dole probably got the closest simply by winning the presidential nomination. John Marini likes to cite this fact as proof that the national administrative state is out of whack. To be sure, voters vote reflexively to protect the administrative state when conservatives try to cut it, as the Gingrich Congress found out the hard way. But every 4 years, when primary voters try to nominate a presidential candidate, the nominee who runs against Washington, D.C. has a huge edge over all the others: Carter, Reagan, Dukakis, Clinton, Bush II, and now its looking like Dean. (Bush I doesnt count because he was Reagan III.) The pattern is so strong it makes you wonder why Senators like Kerry and Lieberman could be so obtuse to miss it.
I remember thinking of this phenomenon when the Democratic field settled together. I looked at Dean and said, "Nah, theres no way it will work this time." Instead, Dean may turn out to be the best confirmation of the Beltway phenomenon yet.]]>