Happy July 4

Thu Jun 30 23:28:42 PDT 2005

If New London decided to use eminent domain to build a city hall, a public
library, an office building or convention center owned and run by it, I
don't see much of an argument that the public use was not involved. But, as
to the office building or convention center, there would be opposition from
the Kelo supporters that it was wrong, socialist maybe, for the city to be
in the office building or convention center business. If Kelo had come out
the other way, then would the city be foreclosed from redevelopment at all?
If so, what in the Constitution prohibits that?

Kelo should be triumphed by the "anti-judicial activism" forces as exactly
the right kind of decision that, in their view, should be replicated across
much of Constitutional jurisprudence. For them to attack the Court for
judicial restraint raises a question of their consistency in espousing
anti-judicial activism.

Michael J. Zimmer
Professor of Law
Seton Hall Law School
One Newark Center
Newark, NJ 07102
973.642.8833
973.642.8194 fax

             Bob Sheridan                                                  
             <bobsheridan at eart                                             
             hlink.net>                                                 To 
             Sent by:                  JFN <jfnbl at earthlink.com>           
             conlawprof-bounce                                          cc 
             s at lists.ucla.edu          conlawprof at lists.ucla.edu           
                                                                   Subject 
                                       Re: Happy July 4                    
             06/30/05 08:50 PM                                             

It's true that Kelo has sparked a certain amount of wonderment at the
fact that private property isn't quite as privately controlled or
sacrosanct, to put a religious spin on it, as the wonderers assumed was
the case.  However I have a certain amount of wonderment in the other
direction, as in how could there be all that much surprise at
discovering that if government can take your fee simple (with
compensation) and tax it, zone it (without compensation, unless a 100%
taking, Lucas), forfeit it (for growing mj, etc.), for the public good,
it could probably, and now definitely, take it for the immediate benefit
of a private developer (Pfizer in Kelo) where the public is supposed to
benefit in consequence.

If we can take your life w/o further compensation in support of United
Fruit, why can't we take your property as long as we pay you a buck?
I'm referring to the era of gunboat diplomacy when we landed Marines in
Central America and various Caribbean Islands in support of American
economic interests.  If China buys Unocal and it is threatened by, say
the North Koreans (or China), do we send troops to protect Unocal on the
theory that it is an American company since it is chartered here I presume?

In other words, I've never seen it quite explained where the private
good and the public good are separated by any line that I might
understand if I saw it.

Is this a subject of Constitutional Law, where we deal in big amorphous
questions begging to be clarified?  When is it okay to send troops to
protect oil?  Whose oil?  The can or two that I throw in my car, or
Standard Oil's pipelines and ships, or the sea-lanes in the Persian Gulf?

When the labor movement was growing and hitting its stride, all measures
promoted to protect laboring people were derided as socialistic, taking
from the rich to give to the poor, Robin Hood economics.

But when federal water from federal dams in the West is subsidized to
support farmers, and farm subsidies to the tune of billions in tax
revenue are used to encourage farmers, make that agribusiness,
(conservative?  Republican free marketeers?) to grow and not grow, this
is not socialism.

I don't get it.

Why should I get excited if the eminent domain power extends as it did
in Kelo when we have troops in Iraq?

-rs
sfls

JFN wrote:

> It is true that "the People are sovereign and the foundation of
> legitimacy for both [state and federal] levels," but I think it is
> ahistorical to view either state or national assemblies as primary or
> more necessary in relation to the other, in the beginning. They were
> each only lent a measure of the People's sovereignty as required by
> necessity or recommended by caution -- to the States united to secure
> independence from foreign oppression, and to the independent States to
> secure liberty from federal oppression. The People expected to keep
> the largest measure of sovereignty to themselves, to be free of
> governance or to be governed locally.
>
> This constitutional vision was described by the 19th Century
> constitutional scholar and former Michigan Supreme Court Justice
> Thomas Cooley, who wrote that the American constitutional framework
> was intended to ensure "that the powers of government are not
> concentrated in any one body of men, but are carefully distributed,
> with a view to being easily, cheaply, and intelligently exercised,/
> and as far as possible by the persons more immediately interested./"
> Thomas M. Cooley, A Treatise on the Constitutional Limitations... at
> 190-91 (Boston, Little, Brown & Co. 1868). Prof. David Barron provides
> a full and fascinating discussion of Cooley's vision in "The Promise
> of Cooley's City: Traces of Local Constitutionalism,"147 UPALR 487
> (Jan. 1999).
>
> Cooley's vision lost out to the competition. The emasculation of local
> government began with Justice Marshall's distinction between private
> and municipal corporate charters in Trustees of Dartmouth College v.
> Woodward 17 U.S. 250 (1819); was carried on by Cooley's contemporary,
> Iowa Supreme Court Chief Justice John Dillon, who thought public power
> should be exercised at the State level rather than locally, by the men
> "best fitted by their intelligence," City of Clinton v. Cedar Rapids &
> Mo. River R.R., 24 Iowa 455 (1868); and it was all over with the
> adoption of "Dillon's Rule" in Hunter v. City of Pittsburgh, 207 U.S.
> 161 (1907). At the same time, the development of a national economy
> prompted an unimagined expansion of federal Commerce Clause authority;
> and the Civil War turned "State sovereignty" into an epithet.
>
> What Prof. Johnson calls "our true past" is truly past. You can see it
> in the incredulous response to Kelo -- "What, they can do that?!" --
> prompting a Senate bill (S.1313) to forbid it (an exercise of Commerce
> Clause authority that would once have been unimaginable and today
> seems unassailable).
>
> About the only sovereignty the People have held on to locally is to
> organize a Fourth of July parade -- as long they don't discriminate
> against anti-Americans who want to march in it.
>
> John Noble
>
>
> At 4:17 PM -0500 6/30/05, Calvin Johnson wrote:
>
>> Content-class: urn:content-classes:message
>> Content-Type: multipart/alternative;
>>   boundary="----_=_NextPart_001_01C57DB9.3098F72F"
>
>> The people, operating through secret revolutionary committees,
>> assemblies and conventions, created both the Continental Congress,
>> and then, under directions by the Congress, the People formed the
>> states.  The People are sovereign and the foundation of legitimacy
>> for both levels.
>
>>     But the congressional directions were necessary and
>> indispensible: the banner that made the war possible was "United We
>> Stand, Divided We fall" and loyalty to the Congress, whatever it
>> decided about radical independence or more moderate accomodation with
>> the Crown,  is what divided rebels from the outcast Loyaltists, and
>> identified one side as Americans.  No loyalty to a State was ever
>> required or expected.
>
>>
>> ------------------------------------------------------------------------
>
>> *From:* conlawprof-bounces at lists.ucla.edu
>> [mailto:conlawprof-bounces at lists.ucla.edu]* On Behalf Of* Volokh, Eugene
>> *Sent:* Thursday, June 30, 2005 4:07 PM
>> *To:* conlawprof at lists.ucla.edu
>> *Subject:* RE: Happy July 4
>
>>     Hmm -- the resolution sounds like Congress *urging* the colonies
>> to adopt new governments, not *creating* States.  If the States
>> didn't automatically arise from the Colonies once they declared their
>> independence, then at the very least they would be created -- as this
>> resolution contemplates -- by "the respective assemblies and
>> conventions," not by Congress.  Or am I misunderstanding this?
>
>>
>>     -----Original Message-----
>>     *From:* conlawprof-bounces at lists.ucla.edu
>>     [mailto:conlawprof-bounces at lists.ucla.edu]* On Behalf Of* Calvin
>>     Johnson
>>     *Sent:* Thursday, June 30, 2005 2:01 PM
>>     *To:* conlawprof at lists.ucla.edu
>>     *Subject:* Happy July 4
>>
>>         As we go into the Fourth of July week, it is important for us
>>     to preserve a certain amount of moderation in the celebration,
>>     not just on the issue of alcohol and highway speed, but also
>>     because of the nature of the holiday.  It is of course just too
>>     late this year to celebrate John Adam's  preamble of May 15, 1776
>>     or the underlying May 10, 1776 resolution, which in fact
>>     accomplished the break:
>>
>>
>>
>>      "Whereas ... it appears absolutely irreconcileable to reason and
>>     good Conscience, for the people of these colonies now to take the
>>     oaths and affirmations necessary for the support of any
>>     government under the crown of Great Britain, and it is necessary
>>     that the exercise of every kind of authority under the said crown
>>     should be totally suppressed, and all the powers of government
>>     exerted, under the authority of the people of the colonies, for
>>     the preservation of internal peace, virtue, and good order, as
>>     well as for the defence of their lives, liberties, and
>>     properties, against the hostile invasions and cruel depredations
>>     of their enemies; therefore,
>>
>>
>>
>>      Resolved, That it be recommended to the respective assemblies
>>     and conventions of the United Colonies, where no government
>>     sufficient to the exigencies of their affairs have been hitherto
>>     established, to adopt such government as shall, in the opinion of
>>     the representatives of the people, best conduce to the happiness
>>     and safety of their constituents in particular, and America in
>>     general."
>>
>>
>>
>>      This, it should be noticed, is the Congress creating States as a
>>      product of its will.
>>
>>                 Robert B. Morris, Forging of the Union, treats this
>>     motion and preamble as establishing that the states did not form
>>     the U.S. but rather the Congress preceded and formed the states.
>>     The states did not originally delegate any power to the federal
>>     government, but rather the federal government delegated power to
>>     the states.  When the Tenth Amendment says that powers not
>>     delegated to the Congress, either expresslyor by implication,
>>     shall be reserved to the people/ or/ to the states,  it needs to
>>     be read, consistent with the history, that the people are the
>>     repository of the undelegated power.
>>
>>
>>
>>                 On these occasions, it is important to celebrate our/
>>     true/ past.
>>
>>
>>
>>     Calvin H. Johnson
>>     Andrews & Kurth Centennial Professor of Law
>>     The University of Texas School of Law
>>     727 E. Dean Keeton (26th)  St.
>>     Austin, TX  78705
>>     (512) 232-1306  (voice)
>>     FAX: (512) 232-2399
>>     Website: http://www.utexas.edu/law/faculty/cvs/chj7107_cv.pdf
>>
>>
>>
>>
>> _______________________________________________
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>
>
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>
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