From the Thomas dissent of Kelo vs. New London:
Posted at 10:40 pm by Johnny B
|Posted by Name @ 09/19/2005 04:00 PM PDT|
|Didn’t think about the impact of poorer communities and the people that live there. Thank you for bringing that to light.|
|Posted by Mark Adams, The Lib @ 09/20/2005 06:24 AM PDT|
|I do get where Thomas is coming from, but (as usual) his opinion is heavy on ideology, or if you prefer, philosophy, but rather stark on legal precedent applicable to today’s modern society.
His most persuasive arguments derive from 17th century treatises and cases over one hundred years old, backed up with rulings from the 20’s. Anything he’s cited from the last fifty years, besides two law review articles, deal more with criminal law than property law.
Certainly persuasive in debate club, but hardly the stuff from which legal arguments are made. Unfortunately this is typical for him, especially when he’s ranting in the minority.
I seldom agree with Thomas or Scalia, but at least Scalia displays scholarship and legal reasoning with deadly persuasive effect. Read some cases (they are legion) where Thomas and Scalia are both writing dissenting opinions. Scalia will make sound, reasonable, thoughtful and well documented arguments while Thomas’ often sound like sour grapes (which actually hurts rather than supports their combined views).
I’m actually on Thomas’ side on this case, but I am not compelled that there is some grave miscarriage of justice after merely reading his opinion.
Unless you make the case that the New Deal and sixty years of of unbroken Commerce Clause interpretations must be rolled back, and why, without sounding like a wingnut, and without legislating from the bench and being accused of being “activist,” you don’t really sound sincere taking his side in this case. And if you take that stand, you’ll only be singing to the conservative choir and not the public at large. This is the kind of case which illuminates the scism between rural/bible belt conservatists whose interests are directly at odds with the big-business, empire builders at AEI.
You simply can’t be compelling when your agrument is primarily philosophical, without rejecting and attacking the pro-business ideology from which this case sprang. Thomas can’t and won’t do that. Here, the government at the behest of a huge private business entity has simply taken advantage of a more liberal mindset which paved the way for increased federal encroachment into local affairs. The chickens of the New Deal and Great Society have come home to roost and the neocons have been hatched.
Now watch how the conservative/pro-business folks will now hypocritically use their hegemony granted to them in this case in rebuilding the Gulf Coast. How does the government declare an area an enterprise zone for private business and not violate Thomas’ views on the Public Use Clause?
Bottom line is whether it promotes the general welfare or merely lines the pockets of the fat cats. That’s where integrity and competence versus corruption and cronyism in administration oversight becomes essential.
I’ve yet to read anyone, liberal or conservative. who likes this ruling and makes a good *legal* argument on why it’s dead wrong. But like Thomas’ opinion, there are plenty of rants — much like the one you just read by me.
|Posted by John Broussard @ 09/20/2005 08:31 AM PDT|
|Rebuilding from a hurricane and knocking down a perfectly fine neighborhood for development are two different things. (You have a point about too much federal involvement in this) You have some good points, Mark, but what about Lucas v South Carolina Council?
I think you are only looking at Thomas’ references, and since there aren’t enough precedents about property law, you find his argument uncompelling. Can you cite what is so compelling about the Stevens ruling then?
|Posted by John Broussard @ 09/20/2005 09:15 AM PDT|
One more thing: Your “60 years of unbroken commerce clauses” is really only two cases mentioned in the Stevens ruling. Berman v Parker is a 51 year old case, and Stevens sounds sympathetic to the individual but defers to the precedent. Thomas stands by the individual and defers to the fifth amendment, essentially. I’m sure that a ruling by FDR appointed judges is always more compelling than the constitution to liberals, however, and is always considered “progress”. Really I don’t see anything “wingnutty” about overturning bad precedent and bad law, especially when relying on the constitution and examples from other fields (such as criminal law). Thomas points out that criminals have inviolable rights in the eyes of the court, and law-abiding homeowners should have some inviolable rights too. That’s not wingnutty, that’s logical.