I’m away from my desk so I briefly hijacked another computer to make this post, just so you’ll have a thread in which to talk about it. I’ve been listening to NPR in my car for the last couple hours, and from what Nina Totenberg says, John Roberts is very smart, very well liked, and very conservative. And according to Nina, barring some type of unexpected revelation, his nomination is likely to sail through the Senate.
Of course, one of the interesting things about today’s announcement is how unexpected it was to have a nominee named so quickly. Hmmm… you don’t suppose Karl Rove was trying to distract media attention away from another story, do you?
Goldy,
I want to see if you & everyone else — liberal AND conservative — on this blog is up to a challenge… How long, both in time and in message count, can we go without devolving into partisan politics and extremist and/or alarmist talking points on this subject? This applies to BOTH sides of the aisle. Wondering (with a rational basis) how the guy feels about abortion is valid, but arguing that this is a prelude to Bush’s personal Wannsee Conference is not.
He probably is not extreme enought to balance out Ruth but will take him if he is religous.
And if he’s not religious? If he decides legal cases according to the Constitution and laws, instead of the Bible, does that disqualify him Rufus?
Roger @ 3
What if, as a legal scholar (and with his personal feelings aside), he believes abortion issues don’t follow a strict constructionist view of the Constitution? Would you oppose his confirmation on those grounds alone?
Reply to 1
Well Mark, since you put it that way, Roberts has good credentials. Harvard Law, was a clerk for Rehnquist, has worked in several high-level government jobs and has private practice experience, and took the Dale Carnegie course on winning friends and influencing people. Pretty good resume. Smart politics, too — if you wanna get a hard-right nominee through the Senate, of course you pick a smart and likeable guy with a killer resume. Republicans may be bastards, but they didn’t get where they are by being dumb.
Right now the vote in favor of Roe v. Wade is 6-3, so even if Roberts is an anti-Roe vote, Roe will still have a majority. I suspect the Democrats will let this one go through and save their heavy artillery for the next one. That would be smart politics. There might not be a next one; Bush may be out of office before there’s another vacancy. The Democrats also will be thinking about the historical experience demonstrating that Supreme Court appointments are unpredictable and presidents don’t always get what they thought they were. More than one Supreme Court appointee has unpleasantly surprised the president who appointed him.
What it all adds up to is that Roe v. Wade is not in immediate danger from this appointment, and I think Democrats will be looking at other issues as well, such as Roberts’ track record on civil liberties and Bill of Rights issues, and they’ll also be thinking that it could have been worse — they didn’t get Gonzales or some congressman with a law degree who’s never seen the inside of a courtroom.
3
Explain please?
RR @3 Neo-Cons do not care about the constitution, hell they don’t even care about the 10 commandments. But as long as they can get in a ultra conservative into the SCOTUS by playing to the mushy brains of people like RUFUS with religion… Hey, they win, and RUFUS and the rest of us lose. Difference is RUFUS will not understand that he has been screwed.
Hey I just want to see diversity on the bench. You donks dont care about the constitutions.. come on give me a break. As long as we have extremist on the bench like Ruth then we have enough room for an ultra religous right wing conservative.
7
I meant 4. I’m not sure I understand Mark’s question. I do have a definite sense that he is asking a serious question that deserves a sober reply. But I want to make sure I understand what he’s asking before I attempt to answer it.
Thumbnail reviews of appellate judges often to do with how often their decisions have
(1) overruled the legislated law (= “activist judge”) and
(2) been overruled by higher courts (= not necessarily all that competent).
So I want to know Roberts’ score on those, and I want to know what sorts of cases he stuck his neck out on — “business”, “values”, or what.
I’m also interested in whether Roberts appears to be a tool of the religious “base”, or the business “base”, or a regular conservative judge. I don’t have all that many worries about conservative judges (Bridges, for example!). And my earlier prediction has been that Bush (in his second term, and with a non-candidate veep, and a party ever more distancing itself from him because of Rove et al) has no need to play to the desires of the right-wing religious base (not even on Roe v. Wade). In fact, they’re only going to be more motivated to mobilize for the next Repub candidate if they’re still mad at the SCOTUS. But the business base, that’s where Bush returns in 3-1/2 years, if not sooner. He’ll be wanting grateful friends there.
Comment on 7
I don’t know much about Roberts, but from what little I do know about him, he doesn’t strike me as a Neocon or someone who would operate completely outside the Constitution. Having graduated from Harvard Law, he’s been pretty well indoctrinated with the notion that a judge has to operate within the law. But even so, Supreme Court Justices have a lot of wiggle room, and it would definitely be out of character of Bush to compromise or go with anyone but the most hard-core conservative he could find. Nothing moderate about this president and he doesn’t know the meaning of compromise. With Bush, everything is all or nothing.
Reply to 10
Roberts has been a judge for only 2 years, so he doesn’t have a track record or baggage, and it will be very hard to try to read his mind. Smart … very smart.
RR @ 11, I hope you are correct, but from what I have heard tonight, Roberts has stated that R v W was a mistake and can be overridden.
Additionally he is VERY corporate vs people.
It wil be interesting to see what more comes out avout him. We will have another fight concerning the SCOTUS coming before Shrub leaves. And I would rather not have this distract from the Traitorous acts of Rove and Libby.
Rufus, I’m pretty sure you don’t know a damn thing about law, or how to size up a judge. I don’t want diversity; I want knowledge of the law, clear thinking, logic, and a strong dose of common sense. Picking judges is one place where I don’t want affirmative action; I want merit to be the only criterion.
14
Too bad you and the collective donks were not able to block Clinton from appointing that poor excuse for a judge Ruth.
Wow, this is scary – I agree with RR @14! I’m just curious if you think that it is possible to find RvW unconstitutional, but not be a right-wing nut. I personally am in favor of abortion, but think RvW is finding substance in the constitution that isn’t there. I am willing to risk leaving it up to the states to pass laws keeping it legal. I am also tired of abortion being the defining issue of this age.
It is also fun to see who lived up to the original challenge of keeping this on an intellectual level, and not sink to moronic comments.
You know that is an interesting question. Can you extend the constitution to unborn cell masses and still be considered a “constitutionalist”?
RE: Me @ 1
1 hour, 7 minutes. 7 comments. [sigh]
Reply to 13
Well you could do both of those within the framework of the Constitution and the law; as I said above, Supreme Court justices have wiggle room. They are, after all, the folks who have the final say in deciding what the law is.
It’s been a while since the last time I read Roe v. Wade. It’s a lengthy, complex, and intellectually demanding opinion. The most important thing to remember about Roe is that the majority found an implied privacy right in the Constitution, then proceeded to conclude that abortion is a medical procedure, and the privacy right protects a woman’s right to make medical decisions about her own body free of legislative intrusion.
There are people who read both the Bible and the Constitution at face value and reject the notion of interpretation. These folks will tell you there’s no constitutional right to either privacy or abortion, because they don’t see any language in the Constitution that expressly confers these rights.
Nearly all judges and legal scholars reject this rigid approach to interpreting law, for several reasons. One, language by its nature is arbitrary and ambiguous, and given words mean various things to different people. Two, deriving meaning from the intent of those who wrote the law not only solves the language problem but is sensible. This school of thought holds that the words of the law are simply clues to the intent of those who wrote the law, and does not put the words themselves on a pedestal or give them a life of their own.
The most important Supreme Court case of all time is Marbury v. Madison. Nowhere does the Constitution say the Supreme Court has the power to declare laws enacted by Congress unconstitutional, yet that power is fundamental to the functioning of the Constitution’s checks and balances. Chief Justice Marshall, the author of the Marbury opinion, found this power to be necessarily implied by the powers that were expressly granted to the Court — it could not carry out its express powers if certain implied powers did not exist.
This is also the heart of the reasoning process followed by the Roe v. Wade court. My recollection from reading it is that I was unable to find a logical flaw in the flow of the Court’s reasoning by which it got from Point A to Point B.
Most people think of Roe v. Wade as an abortion case. However, it is even more important as a privacy case. Roe v. Wade is THE leading case for the argument there is a constitutional right of privacy. It is logically possible to reverse the abortion part of the case without reversing the privacy part of the case, and that’s probably the route the Court would take if the constitutional right of abortion is ever overturned, as I believe it will be someday. (I have always regarded the abortion ruling to be a Plessy v. Ferguson type of case … one that fulfills a practical societal need during a certain period of the nation’s history that a changing society eventually will render moot or counterproductive. Plessy v. Ferguson, which held that segregation did not violate the Constitution, probably was necessary to get America through the period of its history when society was not yet ready for, and could not peacefully accept, forced integration. The nation eventually outgrew Plessy as the earlier generations died off, and Brown v. Board of Education reflected the changed societal values and belief systems that evolved between 1896 an 1954. In the same fashion, I think the Roe abortion ruling fulfills a temporary need of American society that future generations will find out of sync with their evolving values and belief systems.) However, the link between privacy and abortion is very close; to overrule Roe while preserving the constitutional privacy right defined by the case, the Court will have to say the fetus has legal rights that are in conflict with the mother’s privacy rights, and in balancing these rights, the fetus’s right to life overrides the mother’s right to medical privacy. It will be tough to get there, but I think it can be done.
At this point in history, it would be extremely unwise, though. The law on abortion needs to be uniform throughout the U.S. If it isn’t, you will get an abortion traffic across state lines, and a great deal of legal confusion. For example, if an Alabama teenager goes to Illinois to get an abortion and then returns to Alabama, can she be prosecuted under Alabama law for doing something in Illinois that is legal in that state? Even worse, if legalizing abortion is left up to the states, you’ll have the abortion battle being fought in every state legislature in every session, distracting legislators’ attention from other important issues such as education, health care, transportation, and budgets. And legislative races will tend to be one-issue campaigns, with many voters lining up for or against a candidate based on the one criterion of where the candidate stands on the abortion issue. This is what we had before Roe v. Wade and it was a damn mess. Going back to a system of illicit abortions, women dying from back alley abortions, and state legislatures brawling endlessly over abortion laws, is the last thing our country needs. This is good for no one on either side of the issue. For these reasons, a Supreme Court overturn of the Roe v. Wade abortion ruling — long the Holy Grail of the religious right — would, I believe, be a disaster for our society.
Roger @ 9
What I meant was… If a SCOTUS nominee felt that Roe was bad law — regardless of how he/she felt or ruled on abortion-related issues — would you oppose them on those grounds alone? Do you think it is possible to be “pro-abortion,” but still feel Roe should be thrown out as poorly-written or misapplied Constitutional law?
Roger @ 14
Like Janet, I gotta agree with you on that post.
Rufus @ 17
You’ve actually stumbled upon an interesting bioethics topic — stem cell research & engineered teratomas.
17
The Roe v. Wade court said no. The difficulty of this issue is that at some point a “cell mass” becomes a human being and nobody knows how to draw that line. The Roe v. Wade court struggled mightily with this question and couldn’t answer it. In the end, they dodged it, and dealt with the issue by saying, in effect, there’s only one “human being” in the picture and that’s the mother, and the mother has a privacy right we have to deal with and the cell mass has no constitutional rights we have to worry about. Obviously, the logic of this falls apart if you decide to say there’s two human beings in the picture and they both have rights under the Constitution. If you do that, a Constitutional prohibition on abortion becomes possible, and you an write a SCOTUS opinion prohibiting any state from legalizing abortion, because once you recognize the unborn fetus as a human being with legal rights then it’s inconceivable that the fetus doesn’t have a constitutional right to not be killed without due process of law.
I want to know what the nominee feel about the 5th admendment especially the last part:
Amendment V – Trial and Punishment, Compensation for Takings. Ratified 12/15/1791.
No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.
Reply to 19
I think the abortion part of Roe v. Wade is, like Plessy v. Ferguson, a chewing gum and bailing wire affair — flimsy constitutional law patched together to arrive at a result dictated by practical considerations; and I think Roe’s abortion ruling eventually will suffer the same fate as Plessy’s segregation ruling — our society will outgrow and discard it. The privacy part of the Roe v. Wade case is on a much more solid foundation.
Rufus @ 23
I haven’t read the opinion on the recent SCOTUS takings case, but I wonder how they got “public use” out of giving property to another private party. They may be getting (greater) “public BENEFIT,” but it isn’t being specifically “used” by the public in any greater manner than it already was.
If one were to say that the economic benefits are a “public use,” then I’d wonder if they’d be obligated to “give” it back to the original owner if the benefit didn’t materialize (e.g. if the commercial project fell apart and/or went bankrupt).
Bear in mind, however, that if they pay “market value” (yeah, yeah, yeah, I know…) for the property, they don’t violate the “just compensation” part.
19
I guess that doesn’t really answer your question though, does it? Judicial nominees are not supposed to prejudge cases, yet they obviously come to the table with some ideas in their head. Or if they don’t, well, you don’t want to put someone on the SC who has a vacuum between their ears, do you? So there’s this game everybody plays in which the nominee says “I’ll decide that case when it comes before me” and the Senators say, “of course, that’s exactly what you should do and what a judge is required to do,” while trying to read the guy’s mind and figure out how he’s going to vote on the issue. Very entertaining.
If Roberts comes out and says, “I’ll overturn Roe v. Wade first chance I get,” that disqualifies him. But of course he won’t do that. And of course, the Democrats will try to read his mind and predict what he’ll do when that time comes if he gets the chance. That’s how the game is played.
As long as Roberts plays by the rules — doesn’t prejudge the case, keeps an open mind, is willing to listen to the arguments on both sides, and doesn’t lock himself into a decision until the case is properly argued and the decision is before him — then I see nothing that disqualifies him. Predisposition and prejudging are not the same thing; one is not disqualifying, the other is.
Abortion is not my highest priority for a Supreme Court nominee. Undoubtedly it is for a significant part of the Democratic Party’s constituency, but my wife and I are past childbearing issue so it’s not an issue we’ll ever be affected by in our personal lives, and I personally oppose abortion on moral grounds, although I also oppose overturning Roe v. Wade on pragmatic grounds. In general I would say it’s pretty far down my list in terms of what’s important in picking a SC justice and I’m much more concerned about things like free speech, due process, and other civil liberties. The absolute last thing I want in a SC justice is someone who will rubber stamp whatever the President or Congress want to do. A partisan judge, or a blind follower, or a non-thinker, or someone who thinks there’s only two branches in our government and the role of the judiciary is to do as it’s told — all of these represent unmitigated disaster and a threat to our democracy and freedoms. Obviously you can get those traits in a nominee of either conservative or liberal bent, so this is not a partisan issue and a nominee like that should be opposed by all sides.
Roger @ 26: “The absolute last thing I want in a SC justice is someone who will rubber stamp whatever the President or Congress want to do. A partisan judge, or a blind follower, or a non-thinker, or someone who thinks there’s only two branches in our government and the role of the judiciary is to do as it’s told – all of these represent unmitigated disaster and a threat to our democracy and freedoms.”
ABSOLUTELY
My definition of a taking includes any law restricting the use of property that the property owner had enjoyed before the law took effect.
Rufus @ 28
While I understand the spirit of what you’re trying to say, I can’t go along with it 100%.
The problem, as I see it, is that developers have abused their land use freedoms and government (and environmentalists) don’t trust the rest of us to use common sense.
I’m not a tree hugger, but it ticks me off when I see a huge piece of rural or semi-rural land clearcut for development when it didn’t need to be. It is even more offensive when land owners argue that they “put the land back the way it was” (to meet land use regs) by putting saplings and shrubs in place of mature trees that they’d cut down.
My definition of fair compensation is:
Upper end of FMV to be liberally construed plus
Moving expenses to be liberally construed plus
Lost wages becasue of moving expenses to be liberally construed plus
Any other reasonable expense related to the taking of property to be liberally construed
I am a liberal when it comes to government paying for eminent domain.
Roger Rabbit. I agree with you too. As a black man, I want a jurist who is constitutionally sound, not one who is an affirmative action pick. Surprised don*****don. Remember abortion is between the woman and God!!!
RUFUS: remember it was the liberal judges who approved the New London, Conn. property swap scenario. It was the conservatives who wrote that this was unconstitutional! That is still lost on the HA lefties!!!
Yes marks you ask a legit question without the lefties or righties going into donk or troll mode. Don*****don went there first. Congratulations don*****don! You are a real Moby Donk Troll. NeoCons don’t care about the constitution. We do. Show me where abortion is in it? See below don*****don.
To answer your question Marks, there is a schism in this country. The left thinks that abortion is a constitutional right. Well someone posted parts of the constitution earlier this month on HA asking where in the constitution is abortion a right. No one could answer it because they would be lying. It is not one of those rights guaranteed by the constitution. The right believes when the sperm enters the egg, you just created life. I think PacMan said it best when he said abortion is between the woman and GOD! In the end we all meet the judgment seat and GOD will determine the quick and the dead.
RR I also agree with you. That was a nicely written cogent post!!!
Mark:
It took Roger Rabbit all of 30 minutes to “…devolving into partisan politics and extremist and/or alarmist talking points on this subject?.” Gotta love those penumbras and emmanations. And we can’t have anyone reading “…shall make no law…” and actually thinking it means what it says. Sounds too much like “Thou Shalt not…”
Goldy seems a bit snarky with his comment “Of course, one of the interesting things about today’s announcement is how unexpected it was to have a nominee named so quickly. Hmmm… you don’t suppose Karl Rove was trying to distract media attention away from another story, do you?” Is there a Reality Based Standard for how long a nomination should take? Some argue that 19 days is too long, some argue it is too short. What is the ideal time? And did all other nominations meet it?
On this nomination, the Left will attack, the Right will defend, the nomination will clear Judiciary, there will not be a talkathon filibuster, and the nomination will pass with 65 or more votes.
The search for pubic hairs on Coke cans will grow frantic. Journalists will decline to take a number and wait on line, but will aggressively compete for the title of Moonbat Spokesman of Planet Clueless. And Goldy will further sabotage his chance of reaching nirvahna in talk radio by invoking the F- word and other items of bad taste in polite company. Someone will send him a case of tinfoil, and he won’t share with deserving commentors.
Sure beats the Summer Doldrums.
Monorail – T minus 90 days and counting down!!! Yes!
29
Mark I am not in favor of letting people do what ever they want with their land either.. but you need to codify it. Is there something to be said about outlawing a land use activity because it is so potentially harmful to society it needs to be banned… yes. But there better be a good reason.
If Roberts comes out and says, “I’ll overturn Roe v. Wade first chance I get,” that disqualifies him. But of course he won’t do that. And of course, the Democrats will try to read his mind and predict what he’ll do when that time comes if he gets the chance. That’s how the game is played.
And how do you think the more liberal lot of senators will try to decipher if a nominee will overturn Roe V Wade. Religios beliefs… nah
25
Let’s say you contract to buy a specific piece of property, and the seller reneges on the deal. In American law, your remedy is specific performance — i.e., compelling the seller to convey the property — not monetary damages. This is because every piece of real property is unique.
If you sign a contract to buy 10,000 bushels of corn, any 10,000 bushels of corn will do, because 1 bushel of corn is pretty much the same as any other bushel of corn. This is what is called a “fungible” good — bushels of corn are indistinguishable between each other and readily interchangeable.
But in American law, real property is the antithesis of fungible. That’s why your remedy to the breach of contract is not money or some other piece of property but rather a right to take ownership and possession of the particular piece of real property you promised to buy and the seller promised to sell.
This is one of the first things a first-year law student learns in his real property class.
Now let’s take another legal concept — the idea of sovereignty. The sovereign is the source of all law, authority, and rights. Conceptually, a sovereign with unlimited authority can grant, limit, or qualify property rights as it pleases.
Sovereignty usually is associated with whatever government happens to be in power. However, the Framers of the Constitution, having had experience with absolutist governments, didn’t like that idea. They said, in effect, sovereignty resides in the people and government has only such power as the people grant to it; and then went on to limit what powers the people could give to government to protect individuals and pluralities from tyranny by the majority. All American law conforms to this constitutional concept.
So how do you square the takings concept with the basic concepts of real property law? You go to the eminent domain language of the Constitution, which obviously is in conflict with the concept of private property rights, because this language expressly grants to the government the power to override private property rights under certain conditions, payment of just compensation being one of them. Like all other constitutional language, the eminent domain clause is subject to interpretation; and the courts have not interpreted it to mean the government has to pay market value any time government action detracts from a property’s usefulness or value. Nothing in American law or the Constitution guarantees anyone the right to own or use property completely free of any restraint or regulation. Your home may be your castle, but you can’t lease it to the Russians for a missle base, nor do you have a right to use it in ways that interfere with the rights of your neighbors. In a word, the government can prevent you from building a stock car racing track on a tract you own in a residential neighborhood without paying you a dime.
The Supreme Court holding on regulatory takings is that if the government imposes restrictions on use of your land that completely deprives you of any practical use of the land, the government has to pay just compensation. However, if the regulatory restrictions interfere with some possible uses of the land, but other uses remain available to you, compensation is not required.
The outright taking of property by the government under eminent domain is a different issue. In these cases you have two types of issue: (1) Does the government have the right to take the property, and (2) does the offered compensation satisfy the “just” criterion? Of course there’s a lot of litigation and a vast body of case law in both areas, and these cases tend to depend heavily on the specific facts of the case.
There is a line of cases in which government took property under eminent domain for a public purpose and paid compensation that was just at the time of the taking, but the land was never used for the intended public purpose and the government eventually sold it for a huge profit because market values rose drastically during the years of the government’s ownership. A typical example would be a school district taking an orchard on the outskirts of Wenatchee for a future school building that was never built, and 30 years later the district sold the property for 100 times what it paid the private owner. As I recall there was such a case in Wenatchee, although I may not have all the facts precisely right. The original owner sued for the difference between what the school district paid him for the property and what the district sold it for — and lost. There have been a number of such lawsuits, and the property owner who was deprived of his property under eminent domain always loses. Doesn’t seem quite fair — certainly not to the original owner — but it’s consistent with the legal concept of ownership. Once title to the property changes hands under the eminent domain law, the acquiring government entity doesn’t have to answer to the conscript seller, it’s now the government’s property and it can do whatever it wants to it, subject only to the proviso that a court may be willing to entertain the argument that the government’s subsequent failure to use the property for the stated public purpose is evidence of bad faith that voids the transaction and entitles the seller to return of the property.
From these concepts it’s a long stretch, and one I’m very uncomfortable with, to the notion that the government can take property under eminent domain for current market value simply because the government wants to sell it to someone who, in the government’s judgment, will put it to a more valuable use than its current owner. In other words, Grandma Millie can be thrown out of the home she’s lived in for the last 65 years if she lacks the inclination and wherewithal to tear it down and develop the property into a strip mall, simply because the government would like to collect higher property taxes. I can’t reconcile this with the notion that Grandma Millie’s house is unique and irreplaceable, and there’s something sacrosanct about the deed with her name on it.
I’m much more comfortable with the idea that the government –instead of taking Grandma Millie’s house for the purpose of reselling it to a private developer who will thrown in a strip mall simply because the government wants more tax revenues from the property — will defend Grandma Millie’s right to live undisturbed in her house, enjoying it’s unique location, view, and sentimental memories, against all comers even if it takes the Army, Navy, Air Force, and Marines to beat them off.
To my way of thinking, Grandma Millie’s house ought to be her castle; and although the wind and rain may enter, not even the King of England or President Bush may enter unless Grandma Millie says so.
Terry J @ 33: “It took Roger Rabbit all of 30 minutes …”
Actually, the award goes to Donna… @ post #7. Roger’s posts were just fine in my book.
However, you bring up a good point re: Goldy. The challenge was technically over before it even started with Goldy’s snarky Rove comment. Sad. Just sad. :(
But look on the bright side! Janet and Rog agree! In fact, you’ve got Lefties and Righties hugging each other (in print) as we speak! What’s next? Dogs and cats living together in sin? Armageddon here we come!
Janet S @ 16 “I personally am in favor of abortion,”
I am sorry, I am a strong advocate for a woman’s privacy rights and the right to control her own body, but I have NEVER known anyone in favor of abortion.
That thought makes my skin crawl.
Roger @ 37
OK… Who is “ghost posting” as Roger? I’m finding that I agree with you again. :)
I don’t have a particular issue with eminent domain when some holdout landowner wants a king’s ransom for a piece of real estate needed for a highway. I just don’t like the taking of private land and giving to another private owner. I like your “bad faith” argument, too.
What I want to know is if the government would be legally, ethically or morally obligated to “give back” a piece of private property when the new private property owner’s planned economic benefits didn’t materialize?
Could/should the “old” owner sue on the exact same “public benefit” basis if, let’s say, the failed project’s abandoned buildings actually brought DOWN the property values, taxes & other economic benefits?
Rufus @ 28
I don’t have any problem with your definition of “taking.” However, the real question is whether a taking is permissible, subject to just compensation, or impermissible.
Typically, when government imposes more stringent restrictions on property use, it deals with the taking issue by “grandfathering” existing nonconforming uses. An example is if a new zoning regulation reduces the maximum building footprint on the lot from 50% to 35%, the ordinance will contain an exception for existing structures, and you won’t have to tear down a garage or shed that’s already there to get within the 35%. However, if the existing footprint is 45%, you won’t be allowed to build up to the 50% that would have been permissible before the ordinance.
While we’re talking about the definition of “taking,” I would like to point out there are at least two legal definitions of “taking.” One has to do with government taking property under eminent domain or interfering with the use of private property by what is called “regulatory taking.” However, under the Endangered Species Act, “taking” has a completely different meaning. Under the ESA, a “taking” is an action that can subject you to penalties or sanctions, and covers a broad range of actions that adversely affect protected species. Shooting a spotted owl is an ESA “taking,” but logging your land might also be a “taking” if it interferes with spotted owl habitat. From this, it should be easy for you to see what all the hollering is about over the ESA. Some private timberland owners in Washington State have been told that protecting salmon prohibits them from cutting trees on 90% of their acres, and doing so will constitute a punishable “taking” under the ESA. Needless to say these folks aren’t big fans of the ESA. Washington State government, as part of its salmon recovery program, has established a program to use federal and state money to buy out or compensate small woodlot operators who are heavily impacted by salmon protection regulations.
40
Oh come one, Mark, have you forgotten that your favorite cute fluffy little bunny is the RETIRED GUVMINT HACK ATTORNEY formerly known as Alan/Priscilla/thatPrick, et al.? I really get off on this legal shit — it what’s I’ve been doing all my life, and it’s what I live for — but then I’m just a cute fluffy little bunny who likes to fuck female bunnies and make lots and lots of new little bunnies! :D
Reply to 16
I have no problem at all with the Roe court’s implying a constitutional right of privacy. Their reasoning was impeccable. In my view, the privacy part of the opinion is rock solid and sound constitutional law.
I think the abortion part of the case is more vulnerable. To get there, the court had to refuse to recognize the fetus as a human being. They based it on a conclusion that nobody from the fields of medicine, science, religion, etc. could prove that it was or wasn’t. That particular piece of reasoning, I suspect, may not withstand the test of time.
Mark @ 29
“I’m not a tree hugger, but it ticks me off when I see a huge piece of rural or semi-rural land clearcut for development when it didn’t need to be.”
I think this is an excellent post for learning. You may not consider yourself as “tree-hugger” and I don’t consider you one either. But the far right wing chooses to label people with your sentiment as “tree huggers” because they feel a prejorative will erase your good thoughtful points with just a quick mushy headed “label”
It is like the far rights label of “femiNazi” and “CommieSymp” and “BabyKiller”, etc.
These labels mean nothing they are meant to defuse thought with denigration and strawmen.
Don’t worry, being called a treehugger will not kill you. Your respect for conservation against greed is noble, no matter what label others put on you.
By the way, Janet, nothing in the Constitution says the Supreme Court has the power to declare laws unconstitutional. Yet that power is indispensable to the functioning of our system of government. On a broader scale, if there’s no such thing as implied constitutional powers or rights, then the document simply doesn’t work. Over 90% of American constitutional law consists of implied powers and rights. Eliminating these from our law would be revolutionary and have immense consequences, many of which you might not like.
Oh and the label LEFTIST PINHEAD and Soci alist are meaningless as well.
Neo-Con is meaningless too. But it serves a purpose, if followed by a rational reason why it applies.
I think “neocon” actually does describe something, and by the way, “neocon” is the label the neocons chose for themselves. I would argue it’s a misleading description of the neocon political philosophy. There’s very little that’s “conservative” about these guys — they believe in big government, and are hostile to individual liberties. The only things these guys have in common with “conservatives” are their militarism and nationalism.
Roger, there you go again. Lefties spinning, by saying all the bad conservative stuff (in their eyes) is neo con inspired. I’ll bet most conservs do’t know the lable , and if described to them accurately, many would reject it.
How many neocons are there in your confused little world?
RR @ 48 I agree, that is why when I see Neo-Con philosophies/defenses posted here at HA, I call them Neo-Con (you’ll have to excuse my hyphenation, just the way I prefer to spell it) I would never slander Republican philosophy by mistaking it for Neo-Con philosophy. I disagree with most Republican stances, but I casn respect them.
Neo-Con fascist stances are evil, and I will fight them every fucking way I can.
righton @ 48 “I’ll bet most conservs do’t know the (neocon) lable , and if described to them accurately, many would reject it.”
I agree righton, most Republican conservatives if they did not have their brains washed every 15 minutes by the corporate right-wing media would reject all this Deficit-larger Government-War without End-Government knows best about your private life-Corporate philosophy
in a heart beat.
But we have a lot of Kool Aid to drain out of the media before the illness is cured.
Roger @ 43: “RETIRED GUVMINT HACK ATTORNEY”
I never called you that! :) But while we’re on the topic of “hack attorneys,” are you (or have you ever been) “Don?” All of this Roger, Don, Donna business sets my head a’spinnin’. All of you… please pick a name and stick with it! I give credit (and criticism) where it is due. For example, “Donna” IS a “Leftist Pinhead” and a “Social ist.” ;)
Donna, there is actually debate over whether those you Lefties call “neocons” are really the same people who describe themselves as such. Spend a little time on the Wikipedia if you want to learn more.
Goldy, you left out dissing Tom DeLay and calling Roberts a Nazi; that is, your standard template for abuse is to invoke Rove, neocon, nazi and delay. Did you run out of keystrokes this time?
The Abortion issue is used to divide and control voters. It has guaranteed the democrats a large block of voters who are loyal to a slogan more than a belief. From resistence, to self control to birth control women have the natural right to chose and determine their destiny at several points in a relationship, long before they become pregnant. What Roe has given is the right to choose, “AGAIN”. Thus, abdicating responsibility which is a strong component of liberalism.
In rare cases where pregnancies occur from rape, incest or abuse the alternative should not be denied.
However it comes as no surprise that the same folks who cling tenaciously to abortion as being about rights go in the streets to promote “SCREW ABSTINANCE”. The two go hand in hand, don’t they.
Why did O’Connor retire knowing Bush would appoint someone who is *likely* to overturn Roe v. Wade when she, herself, wouldn’t?
This isn’t a Bush plan…it’s an O’Connor plan!
thomas; duh, she’s 75 and her husband has Alzeimers. Maybe she’s more normal than your typical Supreme
What’s with the Bushies’ new-found love for a civil, intellectual discussion? If the issue involved the governor, they’d laugh at such a suggestion. (Actually, they have, repeatedly.) “Intellectualizing” the Bush nominee seems like a good strategy. As long as the activist base of the Democratic Party hasn’t switched onto war footing, the establishment Dems (most notably, in the Senate) are likely to be compliant.
Am I suggesting a flame-fest here? No. If progressives stoop to the level of Mr. Cynical et al. then what have we won? That said, I’d ignore the Bushies’ “more intellectual than thou” competition. What hypocrisy.
Do constitutional amendments fit into the strict constructionist view? I mean, really burning, important issues— like burning flags. “Strict Constructionism”,like everything else in this world, is open to interpretation. Determining the motives and intent of an 18th century group of propertied male Americans is Impossible. How would the founding fathers have felt about the rights conferred by the 14th amendment being applied largely to corporations(who are not people)—often overriding the rights of actual living persons?
Roger Rabbit @ 23: “a Constitutional prohibition on abortion becomes possible . . . because once you recognize the unborn fetus as a human being with legal rights then it’s inconceivable that the fetus doesn’t have a constitutional right to not be killed without due process of law.”
You’ve been providing terrific legal analysis here, bunny, but you missed the mark on this hypothetical. The Constitution limits the powers of government, not private individuals. A woman seeking an abortion is not a state actor, so even if the blastocyst/embryo/fetus is a “person,” mom doesn’t have to provide due process (notice of a hearing and opportunity to be heard?) to it.
Now, if it is a person, then murder laws would probably apply—and so would the claim of self-defense in cases where the mother’s life or health were at risk. [Also, couldn’t women who have miscarriages be charged with (involuntary) manslaughter?] [What if a woman claimed the fetus was trespassing, and demanded it be removed from her body?]
But the procedure of abortion couldn’t be declared unconstitutional for people who are acting on their own, not on behalf of the government.
Janet @ 16….
I think it would be interesting to see RvW overturned and sent back to the states. I think the majority of states would uphold a woman’s right to choose just as the states are now protecting citizens from the recent Supreme Court decision on private property. Maybe Kanas wouldn’t but that most the hard core red states are dilusionary right now and will eventually come back to earth (when it doesn’t end).
But RR really sums it up with what RvW is about when he says this.
*****
Most people think of Roe v. Wade as an abortion case. However, it is even more important as a privacy case. Roe v. Wade is THE leading case for the argument there is a constitutional right of privacy.
*****
I couldn’t agree with that more. Pro-Lifer’s want to remove rights that do not fall in line with what they have restricted themselves have “supposedly” restricted themselves to.
With that said, even this nominee is not going to hurry in any social agenda. It never was about that to begin with. It has always been about cheap labor and corporate rewards. Sadly, both Dems and Reps are on the same page there in many respects.
Someday this ruse will be broken wide open for all to see. People just need to get smarter and turn the fucking TV off.
I’m away from my desk so I briefly hijacked another computer to make this post, just so you’ll have a thread in which to talk about it. I’ve been listening to NPR in my car for the last couple hours, and from what Nina Totenberg says, John Roberts is very smart, very well liked, and very conservative.
If Nina Totenberg is telling us how conservative he is and yet what a great pick he is, then he must be a closet liberal.
58
You’re right, David, you drilled me dead center this time. My bad. :(
jimmynap; why do they let you do whatever to the fetus (so right to your body), but then the gov’t can take your house. seems more political, than based on individual rights..
59
Corporatism and cheap labor conservatives certainly are important elements of the right-wing coalition/agenda. The age-old story of capital exploiting labor. Thing is, though, if you take away the purchasing power of the workers there won’t be many people left to buy the corporation’s goods and services, unless they mainly sell to each other.
By the way, I think free-booting capitalism eventually destroys itself.
Short sighted huh RR! But the larger picture to me seems to be the squeeze of labor and not to destroy all purchasing power.
Mark @ 1–thanks for setting a serious tone for a most serious subject. Roger Rabbit throughout–thanks for your thoughtful comments. Some random thoughts: (1) Bush (I hate to say this) should be commended for selecting someone whose background would suggest that he most certainly respects an independent judiciary. Far too frequently we hear comments from the right suggesting that the judiciary’s job is to, somehow, determine the majority’s will and adjudicate accordingly. I doubt Roberts sees that as the judicary’s task. (2) Bush (damn, this is hard) should also be commended for not throwing fuel, for once, on the nation’s partisan divide by acting in a fashion that appeases only the rabid right (e.g., the Schiavo legislation). (3) The Supreme Court has not had any liberal members since the 1980s. Brennan, Marshall, and Douglas were the last true liberals. Stevens, the most liberal of the current Court, is a Ford pick, who has never been anything but a middle-of-the-road kind of guy. Check out his views on criminal rights, for instance. If we had some true liberals on the Court, I quite doubt that we would have seen the Court upholding the City of New Haven’s seizure. (4) Wouldn’t it be great if abortion ceased to be the primary political litmus in this country?
#62
Not going to go there with you. That dog don’t hunt. I don’t subscribe.
I will say this. Abortion sucks. Doing nothing to reduce the need sucks worse. There are less abortions in countries where it is not only legal, it is subsidized. There are less unwanted pregnancies in countries where contraceptives are readily available and freely discussed. The whole fight over abortion could be eliminated with some progressive thought. Actual stats…. I will try to find the article.
By the way, I saw the little grocery store checkout line magazine “Prevention Magazine” had the cover line of “How to Get Pregnant”. I was cracking up!!!!
Probably fewer abortions too in places where they keep things zipped up.
Ah yes… less we forget the powerful forces of biology. That is an interesting statement though. Consider much of Europe where sexuality is considerably more open than the US. I think of the 1st world countries, we in the US keep it zipped up the most and still have a worse record on the issue.
Can’t find that link anywhere… rats. It was interesting.
States with high abortion rates in 2000 voted for Gore. See the tabular data: http://www.opinionjournal.com/extra/?id=110004781
Could it be that your side is killing off it’s progeny to vote in future elections?
http://www.opinionjournal.com/extra/?id=110005277 – The Empty Cradle Will Rock How abortion is costing the Democrats voters – literally.
Excerpt: “More than 40 million legal abortions have been performed and documented in the 30 years since the U.S. Supreme Court declared abortion legal. The debate remains focused on the legality and morality of abortion. What’s largely ignored is a factual analysis of the political consequences of 40 million abortions. Consider:
• There were 12,274,368 in the Voting Age Population of 205,815,000 missing from the 2000 presidential election, because of abortions from 1973-82.
• In this year’s election, there will be 18,336,576 in the Voting Age Population missing because of abortions between 1972 and 1986.
• In the 2008 election, 24,408,960 in the Voting Age Population will be missing because of abortions between 1973-90.” Statistically it would have been President Gore if abortions were not easily available.
Remember I said Gore had no backbone? Well I dug up some of my old saved materials (the nonpartisan Zogby link: http://www.aaiusa.org/wwatch/020700.htm) and here you go why your side can again congratulate Gore for our 8 great years of Bush:
Excerpt:”But it was on another issue that Bradley succeeded most in hurting the Vice President’s campaign. In one debate, Bradley challenged Gore noting that while the Vice President had changed his position in abortion, he, Bradley, had been a consistent supporter of a woman’s right to abortion. It is a well-known fact that Gore changed his views on this question during the 1980s.
Here, Gore made an inexplicable error. He might have acknowledged than the had indeed held a different position, but after reflection and discussion, now supported a woman’s right to abortion. Instead, he categorically denied ever having held a contrary view and stated “I have always supported Roe v. Wade” (the Supreme Court decision that guaranteed abortion rights).
With this, the issue no longer was abortion, but Gore’s tendency to exaggerate his record and appear to dissemble (Charmin’s trait) when caught in a conflicted situation. Bradley sharply noted “If you don’t tell the truth in a campaign, how can people trust that you’ll tell the truth when your president?”” We know that people could not trust him, especially in Tennessee!!!
Don*****don: Here is a lefty link you can read about abortion and gay marriage by a lefty: http://www.moveleft.com/movele.....rriage.asp
Guess who practiced law with Judge Roberts? Sandy Burgler oops… Sandy Berger.
I think this contrast said it all between Bush and Kerry for 2004.
Support abortion rights?
Bush: Only in cases of rape or incest or when a woman’s life is endangered. Signed bill to ban a procedure that opponents call partial-birth abortion.
Kerry: Yes. Would nominate only Supreme Court justices who support abortion rights. Voted against partial-birth ban.
People on election day remembered the Kerry support for partial-birth abortions.
Goldy: Does you blog word checker check on p a r t i a l b i r t h a b o r t i o n? If so then my last post was eaten!
We really should just get back to Roberts….
Mark @1
Honorable attempt, my friend.
Puddybud @33
As has happened often in the past, Mark and I are once again lumped into the same being. While we may have some symmetrical views, we are not the same. He is usually the more level-headed, while I tend toward the whimsical…
Roger Rabbit @ several
Great posts. I knew you had it in ya!
ok Roberts must be great, to engender the stupid left’s ire.
I could care less what he thinks about abortion, either way. I do care tho about property rights, religious freedom, and other matters found in the Constitution (abortion ain’t)