In which I am properly chastened by words from one who is wiser than I...
Would I campaign against changes to California law restricting the right of cities to take property and hand it to private developers? Tooth and nail, war to the knife; but I still do not understand why this is a Federal matter.
"Incorporation of the Bill of Rights" is the justification given. It is clear that the Civil War Ammendments did not intend to incorporate the Bill of Rights into rights to be enforced against the states by the federal courts; they specifically empower Congress to enforce them by appropriate legislation. But Congress doesn't always act. So when Congress doesn't act why may the courts do it for them absent an Act of Congress?
And the answer, "Because it is so important, and this needs to be fought by any means necessary" is not a conservative answer. Where in the Constitution does it become a Federal matter? I am prepared to be enlightened on that because I would not at all mind seeing the Feds protecting private property rights (although I doubt they will). So what is the Constitutional issue here? What gives Federal Courts -- not Congress, but the Courts -- jurisdiction in this case at all? The Incorporation Doctrine has been responsible for a great deal of mischief and in my day Conservatives hated the whole idea. Wouldn't we be better off if that incorporation were overturned, ended, rescinded, rather than being used by courts to thwart the will of the legislature of Connecticut? If you want protection for private property enforceable by US Marshals, pass an Act of Congress; don't hand more power to the Courts. They'll misuse it every time.
Jerry Pournelle nails it pretty well. I have railed often enough about courts creating law ex nihilo and the encroachment of Federal power, often through "incorporation" of Federal Constitutional restrictions and empowerments into State and local government (following after some very bad law issuing out of the so-called "Civil War Amendments"). Why then my outrage at the Supreme Communists of the United States for (irrationally, given their intrusion in other areas) upholding State and local powers in Kelo et al. v. City of New London?
Well, I guess I feel we're in a Catch-22 situation: as a matter of fact (irrespective of Constitutional justification) the Feds, including the SCOTUS, can and do intrude into State law situations on a daily basis—whenever they wish.
a puddle on an Iowa farm can be declared "navigable waters" and so a farmer can be jailed by feds for filling it in Federal courts can order local schools to do all manner of things abhorrant to the local residents, expensive things that do more harm than good (if any) people nationwide can be forced to flush twice (wasting water and still often not getting the "job" done) because some Feeb thinks it important to "save" water with low-flush toilets that don't work
The list can go on as long as one wants to keep typing. The feebs already exercise, via phony expansion of the commerce clause, the "general welfare" clause and "incorporation of rights" rules far more power than the Founders and framers, in their wisdom, thought healthy for government to exercise.
But when it comes to protecting the bedrock of a democratic republic, provate property owned by citizens, the feebs refuse to meddle as they are happy to do in everything else.
Yes, I agree with Pournelle that this sort of land grabbing is best handled at the State and local level. And I'm pretty sure that such land grab attempts would go fly about as well as a lead balloon in my small town. Still... we live in the world we have. And the world we have is one where our Federal Gummint is far, far too intrusive and unresponsive to Constitutional restraints; where judges legislate from the bench (and legislatures and executives let them, instead of removing them for exceeding their authority); where local and state governments emulate the excessive power of the Federal Gummint.
What, short of Revolution, is the remedy?
Pournelle seems to suggest that more involvement in local politics is an answer—and I'd certainly agree it's a good place to start. But what to do about the problem of both too much interference by the feebs in what often seems like most local issues and their inconsistent insistence on keeping their hands off in others?
 Update (And I, like Randy Barnett said of his book, Restoring the Lost Constitution, would have led with this, had I seen it sooner :-): Justice Thomas, in his dissent on Kelo, said,
"Something has gone seriously awry with this Court's interpretation of the Constitution."
Oh? You think? *sigh*
|
