L. Neil Smith's
THE LIBERTARIAN ENTERPRISE
Number 327, July 10, 2005
The Silver Linings in Socialist Leanings
Special to TLE
On June 23, the US Supreme Court released its decision on a Connecticut property rights case. Much to the dismay of millions, the court ruled 5-4 that cities can seize homes or businesses via eminent domain and give the land to other private developers. Within the official ruling, those justices on the one side of the decision claimed that the "public use" required by the Fifth Amendment could conceivably be met when cities seek to increase their tax base, adding "the necessity and wisdom of using eminent domain to promote economic development are certainly matters of legitimate public debate." The dissenting opinions were stronger, including Justice Sandra Day O'Connor's contention that, "Any property may now be taken for the benefit of another private party," and referring to those whose property is taken as "victims."
In reporting on the resolution of Kelo v. City of New London, Defenders of Property Rights said that the "Supreme Court chooses tax revenues over homeowners." Though the majority decision made it sound a bit more complicated than that, the bottom line is that DPR is exactly right. As such, and as Justice O'Connor pointed out, "The beneficiaries are likely to be those citizens with disproportionate influence and power in the political process..." which translates to (in the words of Justice Clarence Thomas), "extending the concept of public purpose to encompass any economically beneficial goal guarantees that these losses will fall disproportionately on poor communities."
Although liberal Democrats seem all too often to be in favor of government control and largesse through taxation, the same group isn't thrilled with this particular ruling for the precise reasons cited by Justices Thomas and O'Connor. At the same time, at least some conservatives worry that small businesses will be taken so that larger enterprises (that pay higher property taxes) can take their place. Libertarians and constitutionalists are, of course, opposed to the ruling for the simple reason that such taking of private property is (to put it bluntly) unconstitutional as hell. For once, disparate political factions seem largely united in their anger against this single decision. And that's why I'm personally looking at this ruling as good news.
Yes, you heard me: I'm glad the Supreme Court ruled the way it did in Kelo v. City of New London. Oh, I agree that the High Court has essentially eviscerated the Fifth Amendment. The day the decision came down, I literally became nauseous at the betrayal of liberty by a bare majority of Justices as story after story arrived in my emailbox. But the same thing that made me sick is the very thing that's making me happy, and that is this: the decision is so bad and with such widespread repercussions that finally a significant majority is beginning to look askance at just what's going on in Washington and the Supreme Court these days.
Just a few weeks ago, the High Court determined that federal law concerning marijuana superceded state law permitting the use of marijuana for medical reasons. The majority opinion indicated the court's contention that "Congress's constitutional authority to regulate the interstate market in drugs, licit or illicit, extends to small, homegrown quantities of doctor-recommended marijuana" even if the small homegrown quantities never make it out of state. Aside from the complete and utter lack of compassion represented by their decision, it was also a substantial blow to the notion of state's rights under the Tenth Amendment.
Obviously, those people who are helped by the use of medical marijuana weren't happy with the decision, nor were those who are working to reform marijuana laws all together. Doctors who appreciate the efficacy of the drug are doubtless disappointed as well, and so are the majority of voters in each of the ten states that have approved the use of marijuana for medical reasons. But in the main, while liberals and Libertarians decried the decision, many conservatives applauded it. Along with the Bush administration, those people seem to consider marijuana to be unmitigated evil (heaven forbid a sick person might feel even a little better, or worse, somebody somewhere might actually be having a little fun). The Tenth Amendment be damned (not to mention the Fourth, Fifth, and Ninth Amendments which also have some bearing here); it's more important that marijuana stay off limits.
In late 2003, the Supreme Court released its decision on Campaign Finance Reform. Many advocacy groups, representing such disparate opposites of the political spectrum as the ACLU and the NRA, opposed CFR because they believed it was written in such a way as to abridge free speech (for the record, I agree). The High Court, on the other hand, affirmed the constitutionality of what appeared to many to be an overtly unconstitutional law. Though the Justices each agreed and disagreed with varying parts of the legislation, the overall effect was that the law was upheld. In his minority dissent, Justice Clarence Thomas wrote, "the Court today upholds what can only be described as the most significant abridgments of the freedom of speech and association since the Civil War."
After the decision, bevies of lawyers began working to determine just what each of the many affirmations and dissents really meant. The NRA announced it would attempt to establish a radio network so that it could continue advocating without disobeying the new and convoluted political speech curtailments and prohibitions. But a majority of Americans were either silent or happy to see that there would finally be some much needed clean-up in the finances surrounding every political campaign (never mind that almost everybody immediately found ways around the restrictions). After all, since most agree that campaign finance reform was needed, any reform would have to be good, even if it does infringe a little (or a lot) of the First Amendment, right?
In 2004, the case of Nevada resident Dudley Hiibel made its way to the Supreme Court. Mr. Hiibel was arrested when he refused to show ID to a sheriff's deputy who requested it. Hiibel fought his arrest on Fourth and Fifth Amendment grounds; the state fought back claiming that Hiibel's refusal to show ID equated to probable cause which, in turn, provides adequate reason for arrest. Unfortunately for Mr. Hiibel, the Supreme Court decided with the state, stating in part that there wasn't anything incriminating "in this case" in merely providing your name to law enforcement (the court didn't suggest any resolution for cases when the provision of a name could prove incriminating).
In the Hiibel case, the High Court essentially decided that you don't, despite the Fifth Amendment, have the right to remain silent. And yet, outside of privacy advocacy groups, few people even knew about the Hiibel case let alone lamented the ruling. I suspect that's in large part because most people are perfectly willing to hand their ID to the police because they have nothing to hide. I'm personally of the opinion that having nothing to hide has absolutely nothing to do with your civil rights, and I'd be disinclined to provide my ID as well purely on matters of general principle. Unfortunately, thanks to the Hiibel decision, that general principle could land me in the general population of my local jail.
Many states engage in drunk driving checkpoints today (only 11 do not). In 1990, though, the notion was still a relatively new one, and when the Michigan State Police decided to try it out, they were sued by motorists who said the checkpoints were violations of their Fourth Amendment rights. After making its way through the lower courts, the matter finally ended up on the Supreme Court docket. Once reviewed, the high court released a ruling that should have scared every American. In its opinion affirming the constitutionality of sobriety checkpoints, the Justices said that the Fourth Amendment intrusion was "minimal" and thus okay.
Let's try that one more time: Since the Fourth Amendment is only being defied a little bit, we're going to let it slide. The problem with that kind of ruling is obvious. What's a "little" bit? How much can we expect that definition to change? And why are we tolerating any amount of infringement in the first place? Well, because most of us don't much like drunk drivers being on the road where they can kill our mothers, fathers, brothers, sisters, kids, or best friends. Since you and I don't drive drunk because we know better, and since drunk drivers do represent a real danger on the road, too many Americans have decided it's okay if the Fourth Amendment is ignored a "little" because, after all, it's for our own good.
Meanwhile, just to keep things as confusing as possible, the High Court has ruled that roadblocks to check for witnesses of crimes are not acceptable, and at least one state Supreme Court (Indiana) has ruled roadblocks to check for illegal drugs are unconstitutional. But since these, too, represent relatively "minimal" intrusions and "little" infringements, I can't imagine it will be long before they're okay as well. Given that most Americans are happy to help prevent crime and are opposed to illegal drug sales and use, I suspect the decisions permitting such will be fine with them, too.
But the Kelo v. City of New London decision just might change some of the attitudes we've seen concerning other decisions. You may not have cancer or AIDS, so you don't smoke marijuana. It's possible you believe that, since you have nothing to hide, you should freely show and tell the police anything they'd like to see and know on demand. You could be willing to permit your free speech to be curtailed because you, after all, would never say or do certain things nor do you approve of those who would. And you might even be happy to stop and chat with the police at a roadblock because you have nothing to hide, and those who do deserve what they get. But you do have something vested in property ownership.
If you own a home, your house is at risk. If you rent, your landlord's property could be taken and you'd be forced to move without even the insult of "just compensation." If you run a business, your facilities are at risk unless you're very big and very rich. The poor will suffer when their property is given to the rich and richer. The economy will suffer when investments in property slow due to fears that ownership will never be quite safe. Any economic turndown will have an effect on all of us whether we own property or not. And we've reached this point largely because we didn't jump up and down and demand something better when other decisionsmore popular, but just as unconstitutional were made.
There's no appeal of Supreme Court decisions. The decisions can, however, be overturned, and they can be superceded. Congress can make laws that circumvent court rulings. New justices who are more inclined to adhere to the Constitution rather than expedience and "interpretation" can be appointed, hear similar cases, and issue rulings actually compliant with the Bill of Rights. State laws and constitutions can (in some instances, at least) counter the effects of Supreme Court rulings (the citizens in Georgia, for example, are protected from Kelo v. the City of New London by a State Constitution that stringently limits eminent domain proceedings there). But to effect these changes and institute these protections, we've all got work to do. And for the first time, enough Americans are seeing just what bad Supreme Court rulings mean for the liberties of all.
For far too long, too many Americans haven't been inclined to do anything to protect their rights. These are people who won't lift a finger until they, themselves become victims of the government. But the good news is buried deep within the bad news yet again when you consider just how many potential victims there are thanks to Kelo v. The City of New London. Freedom fighters have just gained a host of allies who, although they didn't want to fight, have now been drafted and are under fire. I don't know whether or not there are atheists in foxholes, but you can bet there are a bunch of soon-to-be activists in there with the rest of us now.