Wednesday, June 29, 2005

Impeach the Entire Supreme Court!

By: UnrepentantNewDealer

Imminent Domination

In the 1950s, white Southerners angry over Brown v. Board of Education put up signs and billboards saying "Impeach Earl Warren", the Chief Justice at the time. Now, I'd like to see signs saying "Impeach the entire Supreme Court!" My ire is due to a number of recent decisions, including, but not limited to Kelo v. City of New London.

I don't fully go along with Akerman that "the Constitution serves as a list of government abilities, not government limitations: that is, what the government can do, not what it can't."

The Constitution doesn't mention regulating the nation's airspace or highways, yet few would argue the federal government shouldn't have this power. The Framers simply didn't imagine that one day man would soar higher than the eagle or race across America in a horseless carriage at 70 miles an hour or greater. The government's power to regulate airplanes and automobiles comes from the "necessary and proper" clause.

Of course, the "necessary and proper" clause cannot be used to justify a government action that is banned elsewhere in the constitution. I believe in a "living" Constitution that is flexible enough to adapt with the changing times. But to interpret the "eminent domain" clause as allowing the government to take private land from one owner and award it to another owner for private, as opposed to public, use is to stretch the Constitution to the breaking point.

Quite frankly (and here is where I have decidedly libertarian sympathies), I have never been comfortable with the fact that the government has the power of eminent domain at all. It is, alongside the draft, the most coercive power in the goverment's arsenal. Private property is one of the most important pillars of democracy and capitalism. Remember that Thomas Jefferson's initial statement in the Declaration of Independence of the things governments were set up to protect, echoing John Locke and other Enlightenment philosophers, was "life, liberty, and property" (emphasis added). The concept that a man's home is his castle and that property rights are inviolable predates any modern conception of government and is one of the most important values for any capitalistic democracy to uphold.

Akerman's point about "public use" versus "public purpose" is right on target. Public necessity may indeed dictate that a homeowner's right to his land is trumped by the community's need for a new hospital, road, library, or school. These things directly serve the public. A private business directly serves only itself. It's hard to imagine that the Founders intended to allow the government to take away a hard-working citizen's property to award to some private business. They would be rolling in their graves if they knew how this clause was being twisted by this degenerate court.

Therein lies the rub: Why was it that conservatives (William Rehnquist, Antonin Scalia, and Clarence Thomas, plus moderate conservative Sandra Day O'Connor) on the court were opposed to this decision, while liberals (John Paul Stevens, David Souter, Ruth Bader Ginsburg, and Steven Breyer, plus moderate conservative Anthony Kennedy) on the court were for it? How is it "liberal" to infringe on the sacred liberty of private ownership of the land? I can't for the life of me figure this out.

What upsets me most is not that the court ruled that this particular example of the use of eminent domain was ok, but that they failed to set any standard for a government using this power. In Monday's two rulings on the use of the Ten Commandments on public property (more about that later), the justices set a standard: one kind of use is kosher, but a second kind is not. The Supreme Court, with this Kelo v. City of New London case, ruled that pretty much any use of the power of eminent domain by the government is ok, no qualifications need be met. This is a horrible perversion of the intent of the framers, as well as the literal meaning of the "eminent domain" clause. In effect, the Supreme Court, by a 5-4 majority, has declared open season on private property in America.

Sandra Day O'Connor wrote in her dissent,
"Under the banner of economic development, all private property is now vulnerable to being taken and transferred to another private owner. Nothing is to prevent the state from replacing any Motel 6 with a Ritz-Carlton, any home with a shopping mall or any farm with a factory... Any property may now be taken for the benefit of another private party, but the fallout from this decision will not be random. The beneficiaries are likely to be those citizens with disproportionate influence and power in the political process, including large corporations and development firms. As for the victims, the government now has license to transfer property from those with fewer resources to those with more. The Founders cannot have intended this perverse result."

Multi-million dollar homes contribute too much in property taxes for a local government to tear down. No, it is the homes of the lower and middle classes that are now declared fair game for unscrupulous businessmen and the politicians they own.

How sickeningly ironic that it is the conservatives on the Court who are framing the argument in terms of protecting the poor, and the liberals who are championing Big Business.

Perhaps Suzett Kelo's lawyer Dana Berliner put it best: It is a "dark day for American homeowners. Every home, small business or church would produce more taxes as a shopping center or office building. And according to the Court, that's good enough reason for eminent domain."

A dark day, indeed.

Of course, in North Carolina, they've been doing this for a long time. Despite the fact that state law does not allow for local governments to use eminent domain for economic development purposes, not one judge at any level has found anything wrong in Guilford County forcing homeowners to move to make way for a new airport runway for the exclusive use of FedEx, a private company. North Carolina: always behind the times... except when America regresses.

Thou Shalt Not Worship False Idols

The Supreme Court also ruled on two separate cases involving the placement of the Ten Commandments in public places. They came to opposite conclusions on each case. The Kentucky case (actually 2 separate cases from two different counties) involved copies of the Ten Commandments being placed on the walls of courtrooms along with other "hisorical" documents. The Court deemed it unconstitutional, 5-4. The Texas case involved a monument of the Ten Commandments on a 22-acre park that includes 16 other monuments and 21 historical markers. Only the Ten Commandments display was religious. The Court ruled it constitutional, 5-4.

Why would the Court would rule differently on such similar cases? The reason: only one justice, Steven Breyer, voted diffferently in each case. Breyer voted that the Kentucky desplays were unconstitutional, while the Texas display was constitutional. All other justices voted that either both displays were constitutional or both unconstitional.

So, what was the reason Breyer cited for his vote? The displays in Kentucky were originally by themselves and other historical documents were only added recently to fend off lawsuits, so the intent behind hanging them was obviously religious. However, Breyer noted, the display in Texas had been there for 40 years before anyone filed a lawsuit to have them removed, so somehow, that made it acceptable. Is there a statue of limitations on constitutionality? If a law has been on the books long enough, can it be immune from being ruled unconstitutional? Not that a plausible case can't be made for upholding the Texas display, but Breyer's judicial reasoning troubles me.

As in the eminent domain case, O'Connor provided the most compelling judicial reasoning. Explaining her vote that both displays were unconstitutional, she wrote, "It is true that many Americans find the Commandments in accord with their personal beliefs, but we do not count heads before enforcing the First Amendment." She added that religion has historically in America been "a matter for the individual conscience, not for the prosecutor or bureaucrat. Those who would renegotiate the boundaries between church and state must therefore answer a difficult question: why would we trade a system that has served us so well for one that has served others so poorly?"

Why, indeed?

The Culpability Quandary

The Supreme Court also issued a unanimous ruling on Monday in MGM Studios Inc. v. Grokster, to the effect that companies that develop file-sharing software are criminally liable for any illegal acts that customers might use their products to commit. This is a drastic departure from previous law, as well as an affront to common sense.

In 1984 in Sony v. Universal City Studios, the Court ruled that the VCR manufacturer was immune from liability for illegal acts done by consumers using their product, because the VCR had other, legal uses. File-sharing services and software can certainly be used for illegal purposes, as well, such as downloading copyrighted music or movies illegally. Yet it can also be used to legally share media content.

The Court came to this decision by claiming that the majority of files shared were illegal and that Grokster was "inciting" users to break the law. So, if 50.0001% of a product's users are misusing a product, the manufacturer is liable? And,of course, intent is notoriously difficult to prove.

This decision reversed the Ninth Curcuit Court of Appeals, which had thrown out the case against Grokster, reasoning that, as the software merely enables users to share files and Grokster and StreamCast cannot track users and so, cannot monitor to prevent illegal use of their software, the companies were not liable.

Would any judge in America find Ford Motor Company guilty for being an accessory to a bank robbery because its product was used in the commission of a crime? Would Budweiser face criminal charges for a drunk-driving death? Would Smith and Wesson be found an accessory to a murder because they produced a hunting rifle a man used to shoot his wife?

The high court, like the rest of America, seems to have fallen prey to CSDS: Common Sense Deficiency Syndrome. Individuals are responsible for their actions. If I choose to use a product with legitimate legal purposes for illegal purposes, I alone am responsible for my actions. Is that such a hard concept for the justices to grasp?

No More Deep Throats?

The justices saw fit to finish off their term by being "accessory" to the slow strangulation of freedom of the press. I am referring to the case of New York Times reporter Judith Miller and Matthew Cooper of Time Magazine. Both reporters were contacted by "high-level Bush administration sources" who revealed to them the identity of an undercover CIA agent, Valerie Plame, in order to get back at her husband, former Ambassador Joe Wilson, for criticizing the administration's use of discredited information in the rush to war in Iraq.

Neither Miller nor Cooper compromised her identity, though Cooper did write about it, after her cover had already been blown by columnist Bob Novak, who was willing to break the law to help a Republican administration. Yet Novak, who broke the law by revealing the identity of an undercover agent, has not been charged, while Miller and Cooper, who broke no law, are being held in contempt of court for refusing to reveal the identity of their anonymous source. Tell me how that makes any sense.

A lower court charged them with contempt of court, an offense punishable with jailtime. Despite the fact that courts have already found a right to lawyer-client, doctor-patient, and priest-layperson confidentiality, the Supreme Court found no such right inherent for reporters and anonymous sources. Oftentimes, the only way a whistleblower will come forward with information is on condition of anonymity. Would Mark Felt have contacted Bob Woodward and Carl Bernstein about Watergate without being able to conceal his identity behind the pseudonym Deep Throat? What would have happened had Nixon been able to subpoena the two reporters and force them to reveal their source's identity? It is entirely possible Nixon's crimes might not have seen the light of day until long after he finished his second term.

This is the kind of case that previous Supreme Courts would have salivated over. The Court has a duty to decide major issues of Constitutional import. By refusing to hear the case, the Supreme Court has let the lower court ruling stand, to the detriment of all Americans.

The Next Supreme Court Justice

This Supreme Court has made a number of horrifically short-sided and misguided decisions in recent years. So, as the parties sharpen their knives for confirmation hearings for a new Supreme Court Chief Justice to replace Rehnquist (assuming he retires), it makes sense to look at who among the justices deserves promotion. The answer is blatantly obvious: not one. Every one of the Supreme Court justices has been implicated in faulty or downright disingenuous judgment in either Kelo v. City of New London or in Bush v. Gore, the two cases of recent times that will be grouped with fellow travesties of justice Dred Scot and Plessy v. Furguson by future historians.

Of course, the President could simply appoint an outsider to be the new Chief Justice, but that seems unlikely. Though no one on the Court deserves the honor, Sandra Day O'Connor seems to be the least of all possible evils. Her sound judicial reasoning and lucid opinions in Kelo v. City of New London and the Ten Commandments cases are what we need on the Court. She would make a fine Chief Justice, though her advanced age might make her tenure a short one.

Democrats shouldn't get too worked up over one of the current conservative justices being appointed Chief Justice. The position is largely ceremonial and devoid of any real power. Rehnquist would simply be replaced by a fellow conservative. Of course, that would open up a seat on the Court. As president, Bush is going to appoint someone with right-of-center views. But it would only be one right-winger replacing another. The balance of power in the Court would remain unchanged. The Democrats should save up their energy for when a liberal justice retires and Bush tries to appoint a right-winger. The Democrats really risk being seen as obstructionists if they block a qualified, not-too-far-from-the-mainstream conservative appointed by a conservative president to replace an outgoing conservative.

As that is the case, lawmakers shouldn't worry so much over a nominee's position on issues like abortion and the death penalty. Instead, they should question any future nominee: What is your position on eminent domain? On company liability for consumer law-breaking? On the place of religion in the public sphere? On freedom of press? These are the issues that will determine the future of America, indeed whether the freedoms we take for granted will have a future in America.

Addendum, June 29: For those keeping score at home, as of July 8, it will have been one full year since the Supreme Court ruled that "United States courts have jurisdiction to consider challenges to the legality of the detention of foreign nationals captured abroad in connection with hostilities and incarcerated at Guantanamo Bay," and that holding them without allowing access to American courts was "in violation of the Constitution, laws and treaties of the United States." In the year since then, not one "enemy combatant" at Guantanomo has been given access to U.S. courts. No move has been made on the part of the Bush administration to comply with the Supreme Court's ruling. Of course, as Andrew Jackson said when Chief Justice John Marshall ruled that the forced expulsion of the Cherokee from their land (perhaps America's most egregious abuse of "eminent domain"), "Justice Marshall has made his decision, now let him enforce it."