Monday, June 27, 2005

Kelo's Froot Loops

While I can find no one who really likes the Supreme Court's recent Kelo decision, there are a few, mostly on the left, who come down with a "it's not that bad" verdict, while the majority -- mostly on the right, but with a few leftists several populists and many centrists thrown in -- seem to view it as a sign of the apocalypse.

Count me in the former group. I don't like Kelo, but it's not the worst thing that could happen. Atrios has the same attitude, and for the same reasons (which I'll get to shortly). Tim, the Answer Guy, at first denounces the verdict, then seems to moderate his take on it at his post's conclusion.

When Liberals like Brad R. worry that this decision aids the Rich in using the government "like an ATM machine", I take them at their word. Yes, that is the worry; it's something to take very seriously.

Atrios was right to call his post "semi-contrarian". Brad's post, and the sentiments behind it, are about par for the course for the decent side of the blogosphere.

I was helped greatly in fleshing out my own sentiments by participating in a Primer thread that became devoted to the subject. Since it was Primer, many lawyers joined in.

On the other hand, reading the reactions of the rightwing has been a real pleasure; one comes across posts of disappointment, incredulity, and (as is typical) hypocrisy. Starting with the last first, TBOGG catches Jonah Goldberg helpfully advising Bush to push the Ownership Society argument in opposing Kelo. What's funny, and what Goldberg knows full-well but hopes everyone else will forget is that George W. Bush owes his own fortune to greasing a local government into abusing its eminent domain powers:

In 1993, while walking through the stadium, Bush told the Houston Chronicle, "When all those people in Austin say, 'He ain't never done anything,' well, this is it." But Bush would have never gotten the stadium deal off the ground if the city of Arlington had not agreed to use its power of eminent domain to seize the property that belonged to the Mathes family. And evidence presented in the Mathes lawsuit suggests that the Rangers' owners -- remember that Bush was the managing general partner -- were conspiring to use the city's condemnation powers to obtain the thirteen-acre tract a full six months before the ASFDA was even created.


Hindsocket, meanwhile, says:

There is a sense in which it is perfectly logical to say that the democratically elected branches of government are in the best position to decide what is a legitimate "public use," and the courts shouldn't second-guess those decisions. And in many contexts, we conservatives do argue that the courts should defer to legislatures and local governments. The problem here is that accepting that principle would read the relevant language out of the Fifth Amendment. If anything that a state legislature or city government calls a "public use" is, ipso facto, a public use, then the constitutional protection is gone.


Actually, it's not gone: the government still has to pay fair compensation. But I do enjoy Hindsocket's grasping for states' rights exceptionalism here. His fear is palpable. Hindsocket, and most of the rest of the wingnuts and objectively pro-wingnut libertarians, don't give a shit about these people's houses -- or, indeed, any person's houses but their own and the mansions of the plutocrats they serve. What he does care about is that eminent domain could also be used to seize, condemn, or forcibly move business property -- the holiest of holies. What Wal-Mart can bribe a local government to give, a concerned and energised electorate could in theory take away. But I'm getting ahead of myself.

Instayokel reports that, aside from a few who echo Jonah's sentiments, most (of Reynolds's fellow) wingnuts are mopey over the decision. One is already panicking about the poor vulnerable churches that sit on primo real estate. Yeah, well, fuck them.

The real delight is found in reading the reactions of the libertarians. My favorite, whose devotion to property rights is so great that he prefers the Chinese Constitution to America's, is so despondent that I fear his delusions of being the Kira Argounova of America may be pushed to the breaking point, whereby it's possible that he may try to swim the Pacific, away from liberals and the Federal Guv'ment, to freedom in sweet totalitarian-but-property-protecting China. Don't do it, man! Though I doubt he has much to fear from sharks (they can recognise one of their own), even a self-regarding ubermensch should find that swim daunting, and besides, while salt water may do wonders in unsticking the pages of the masturbatory fodder (Atlas Shrugged, Free To Choose, pictures of dead Palestinians, Nozick, Old JDL and Kach Party propaganda) that serves as his library, it can't be good for its bindings.

Anyway, depressed:

Mark Twain was right

No man's life, liberty or property is safe while the legislature is in session.


This is an auspicious beginning from a "libertarian" who continually sneers at anti-imperialists who are very much in the tradition of Twain. More to the point, Twain's comment was directed to the Gilded Age Robber Barons, and their whores in Congress; it takes some chutzpah for Nieporent to quote a man who was attacking the surrogates of Nieporent's beloved Gilded Age ubermensches -- who was, indeed, attacking the very system and epoch that libertarians consider Eden.

Quoting Justice Stevens' majority opinion: "Promoting economic development is a traditional and long accepted function of government." He just left out the word "Soviet" before government. Wasn't it liberals who used to find the statement, "What's good for General Motors is good for America" to be odious? Now they've enshrined it as official Constitutional policy.


Yes, we did and yes, we do. However, the attitude in that statement represented the de facto status quo, which conservatives and libertarians always considered a good thing. What, now that it's "official", you shy away from it?

I love the "Soviet" slag, so redolent of that other self-described ubermensch, Gordon Liddy, in Dick when he warned the heroines that when they grew up, they'd "be living in the Soviet Union of America!"

But speaking of commies, there is something to be said of the old Marxist wish for events that "heighten the contradictions", hopefully to bring about revolution more quickly. (I would substitute "reform" for revolution, however.) Now that "What's Good For General Motors Is What's Good For America" is official, is out in the open, it can't be denied by those robber baron fuckwits that so many libertarians identify with and, shamelessly, enable. As the saying goes, sunlight is the best disinfectant. What Kelo can give, Kelo can end up taking away.

Anyway, as I said, I'm depressed right now. With the exception of the confirmation of Janice Rogers Brown to the federal bench, this has not been a good year for libertarians. Social Security privatization is stalled, federalism is deader than Terri Schiavo, the drug war remains in full effect, and private property exists only at the sufferance of local government, bought and paid for by real estate developers and other big businesses.


I'm not above stooping to schadenfreude. Therefore I point and laugh that such counter-revolutionists are having so difficult a time. But niether am I without sympathy: this is a new experience for them, after all. Since the 80s, they have been steadily at war not just with the New Deal and with the Progressive Era reforms, but with original "big government" concepts of the Founders. If people like Nieporent had their way, there would be no commerce clause, no power of public domain. It's not just that these idiots see Stalinism in, say, the Food Stamp program and that they long for the days of no Child Labor Laws and no Pure Food and Drug Act, they also want to repeal all government power of property. On the other hand, with regard to government power over life and liberty... well in a time of war (wink, nudge) they're ever ready to compromise.

What is it about libertarians and most conservatives that makes them so different from us? Another libertarian, digamma, channeling a Right-Thinking post, gives the game away. Though his post is a joke (his penultimate punchline was lame, I thought, but his throwaway line at the end was rather funny and redeems the whole), the philosophical bias behind it is deadly serious. He regards as equivalent the anti-flag burning law with the Court's decision in Kelo. At a deeper level, what is equivalent to a libertarian is the right to property to the right of political expression. We are different, then, in that we regard the latter as a human right and the former as an important right but a comparatively lesser one. Some of us regard the equasion of any lesser right with a human right to be a de facto cheapening of the more important right. And as a result this cheapening, we believe, certain inevitablities come to pass.

I posit that Kelo officially expresses what was long unofficial; Kelo is the inevitable product of the longterm beneficiaries of the libertarian "property uber alles" attitude's coalescence of power. In such a system as ours, political power inevitably accrues to those with the most property. Big Business has been wedded to the state since the Gilded Age; Kelo merely acknowledges the fact.

Look, I do think it should be exceedingly difficult for the state to appropriate homes. But I don't think the state should be denied power of eminent domain. The first thing that makes me different from a libertarian is that I believe that not only are property rights subordinate to human rights (life, liberty, privacy), but that there is a heirarchy of property rights. I think my friend Backlasher laid it out well:

I... believe property has a hierarchy: Principal residence, real, miscellaneous chattel, and wealth.

I... imagine each of those categories have a scale.

I think these rights of the individual should be preserved by the state. I just don't go as far as the libs and believe they should be preserved at all costs.

To infringe on those individual rights, the state must have a need, and as you move up the scale, the need has to become larger and larger.

There is nothing unique or novel about this position. I'd opine it is the basis of most of western law. Its just on this one decision, I think we had the wrong endpoint.


He's right; this is how it should be and, in fact, was meant to be. I think most lefties would agree. On the other hand, to libertarians and most conservatives, all these property rights are equal in theory to each other and to the rights of life, liberty, privacy (human rights), but when push comes to shove, it's the human rights that are abandoned.

Moreover, there is a heirarchy of ownership status. I believe the state has less of a duty and less of an interest in respecting the property rights of corporations than it does of flesh and blood individuals. Jefferson thought this, though he saw the danger too late; Marshall probably held the reverse opinion, yet the anti-Jeffersonian protections did not truly extend until ...the libertarian paradise of the Gilded Age. Libertarians and conservatives, agreeing with a corrupt Gilded Age Supreme Court decision, believe that corporations and humans have an equal basis for ownership; in this, too, they cheapen humanity.

I've said that most on the right don't care about the people named in Kelo losing their homes, and I think that's true in most cases. Again, I believe their real aim is protecting Big Business, which had a better time of it moseying along under cover pre-Kelo, getting pretty much what it wanted. This may seem counterintuitive because the obvious beneficiary of Kelo are Rich developers, but then again, most of the complaints are by people smart enough to see that the Kelo that gives can end up being the Kelo that takes away. They would have prefered the old way where Wal-Mart, say, used its $hadow influence over the local polity to get everything it wants. Again, their problem with Kelo lies in its "officialness". But for the odd wingnut who doesn't operate in bad faith, Kelo is still what you deserve.

The problem here is not Kelo, nor is it with the people of Connecticut who elected the corrupt politicians who wish to perfrom the land-grab, which conservatives/libertarians are quick to blame, as is their wont (they do have the greatest contempt for democracy: euphemised as "the State" to make it sound as if they are righteous communist dissidents). The problem actually has more to do with the inevitable products of their philosophy: a political system they themselves have poisoned and continue to defend the poisoning of.

If one is outraged that the Rich can manipulate elected politicians into seizing desirable property, it is not democracy's fault nor is it the fault of the righteous state power of eminent domain: rather, it is the fault of the Rich and the politicians. Destroy this symbiosis, by which I mean, make them hostile to each other as entities, and our problem will be lessened. Why do politicians elected by the public do favors for the Rich? Because they are bribed, legally, a practice that every awful libertarian and conservative will defend with his dying breath. Well, fukkos, this is what you get. The relevant politicians of Connecticut's corruption is simply the result of the stupid, crass, and cynical libertarian/conservative corruption of the concept of free political speech and expression. Thus, more "speech", more influence, accrues to those with the most money. That the servants in this process, the politicians, deliver quid to this quo in the form of land-grabs, is entirely the fault of the very libertarians/conservatives now decrying Kelo.

In the current context, Kelo just means that the biggest businesses that can purchase the biggest politicians can, through the state, swallow smaller businesses' and individuals' property. Well, again, that's what you get with such a system. The nasty symbiosis between business and government inevitably tends to bigness, and conservatives and nutjob libertarians have only themselves to blame for it.

There is no longer a 4th Amendment in the age of Gonzales; why shouldn't the hesitation traditionally read in the 5th be too flushed down the toilet? What's good for the goose is good for the gander, right? Some of us warned that authoritarianism was ascendant, but conservatives and far too many libertarians didn't listen; they just wanted to get rich, get a tax cut and kill sum a-rahbs. Sorry, wingnuts, but you helped change the zeitgeist by accelerating the processes by which you had already soiled this political system; this is your just dessert.

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