Take one Kelo decision. Add a local politician. Mix with a dash of arrogance and strained interpretation. Yield: the goverment essentially owns all private property. It just allows you to lease it. From the WSJ, here’s NY attorney Ed Herlihy:
There’s been a lot of controversy lately about eminent domain–the government’s power to confiscate private property and put it to public use. The furor erupted last year when the Supreme Court decided Kelo v. New London, which rejected a constitutional challenge to an economic development plan in New London, Conn. Many people, like me, were surprised by the result in that case: By a 5-4 vote, the court ruled that a city could seize private property and give it to private developers in the name of “economic development.”
I thought that was bad, but it turned out I hadn’t seen anything yet. I happen to be a member of a privately owned golf club on Long Island called Deepdale. Located in the Village of North Hills, a tiny but very wealthy enclave, Deepdale is a beautiful course that has been in use for over 50 years. It has a fabled history; Presidents Eisenhower and Nixon were members. Now, perhaps emboldened by Kelo, the mayor of North Hills, Marvin Natiss, wants to confiscate Deepdale, and has taken some significant preliminary steps–such as hiring consultants and appraisers—toward starting proceedings to do so.
Why? Not to put up a public road or a public building, or for some other public use. North Hills doesn’t need anything like that: It doesn’t need any schools, or police, or firefighters, or libraries and the like because it gets those services from other local governmental units, such as the Manhasset school district, the Town of North Hempstead, and Nassau County.
Nor would the taking fulfill any public need for recreational opportunities. Nassau County teems with golf courses, both private and public. The mayor himself was president of a nearby private golf club, and is still a member of its board. And smack in the middle of town is the North Hills Country Club, which has an 18-hole course, and, unlike Deepdale, has other recreational facilities as well. That club is private, but boasts many North Hills residents as members. Village golfers who don’t want to pay club dues have plenty of nearby public courses to choose from, including one just three miles away that is owned and operated by the Town of North Hempstead—of which North Hills is a part.
No, the mayor of North Hills wants to use the power of government to condemn Deepdale—whose members are a diverse group of people from all over the country and around the world—to make it an exclusive high-end golf course restricted to people who live in his small village and would be willing to pay thousands of dollars in yearly membership fees. The model is said to be the nearby Village Club of Sands Point, which is owned by that village. There you not only have to pay village taxes but membership dues to join. A full family membership at the Sands Point club costs $18,000 a year. If this is indeed the model for Deepdale, the club would become “public” in name only but in truth would be every bit as exclusive as any private club.
The mayor even went on television twice recently to brag about his plan. He told WNBC reporter Greg Cergol that turning Deepdale into “a village golf course exclusively for the village residents” would be a nice “amenity” for them. According to the reporter, the mayor explained that “his goal” is “to turn Deepdale into a private club for his village’s 5,000 residents.” And he told Channel 12’s Bill Mooney that his plan would “increase property values”—private property values –i n North Hills.This goes way beyond Kelo. The planned condemnation of Deepdale, if accomplished, would violate the Takings Clause of the Fifth Amendment to the Constitution, which prohibits the government from taking private property unless it is for a “public use,” even when the property owner is justly compensated for the taking. Although Kelo gave local governments significant leeway in determining what a proper “public use” is, it did not abandon all limitations on what is allowable. The Supreme Court took care to emphasize that local governments must still act for a valid “public purpose” in taking property, and may not do so merely “to benefit a particular class of identifiable individuals.” Yet that is exactly what North Hills seeks to do with Deepdale: It wants to condemn a private golf course so that its residents can use it as their own de facto private golf club and thereby increase their property values. No court has ever upheld such a taking, and no court could reasonably do so under Kelo.
Sure. But who thought the SCOTUS would uphold the local govt’s claim in Kelo in the first place?
This is the classic slippery slope—only, in the hands of scheming local politicians with enough imagination—it is not a fallacy or argument so much as an opportunity to finesse a legal ruling.
Everything and anything that increase surrounding property values and raise income for the municipality is considered fair “public use” for that municipality. After all, some of that increase in revenue will translate into making the trains run on time, so to speak, or fixing the local Watch Tower, etc.
Kelo, as many (on both sides of the political divide) pointed out at the time, is nothing more than the destruction of the wall separating private property ownership from control by the state. That the state can pick and choose makes it that much worse.
Many in Congress have begun drafting legislation that would take the steam out of Kelo; but a better solution would be to bring another case and see if a clearly wrongheaded decision might not be overturned by this new iteration of the Supreme Court.
Stare decisis simply can’t be said to apply here. And unless something is done about Kelo—which, along with Raich (and Scalia’s horrible ruling, expanding the commerce clause in much the way Kelo expanded the Takings clause) and Bakke represents one of the three worst rulings to come out of the Supreme Court in the last 50 years—the concept of private property, while it continues to exist superficially, is essentially dead.
It is a step toward expansive Federal power, which is a step toward the soft socialism of western European democracies.
And we all know how well that’s turned out.
(h/t Terry Hastings)
The road to serfdom is lovely this time of year …
So you’re saying that home my new bride and I have our eye on would be best passed up for a leased condo down by the beach? God this is fucked though, eh? I can’t believe the Supreme Court ruling on Kelo. I mean, I’m pretty much still in denial that they’ll actually come for my neighborhood someday.
What makes you say that’s better? Kelo to a great extent turned over to the political branches the determination of what is public use, and refused to have courts make those determinations. Sounds like the easiest way to deal with this is via action by the political branches.
Even discounting Kelo, if you own real property, you are but the caretaker of said property. Consider real estate taxes as “lease payments” and zoning restrictions and codicils as “landlord permissions” and you wonder why so many business owners prefer to lease property.
The sale of my business was consumated only after I agreed to retain ownership of the property and lease it to the new owners.
Some years ago (15 IIRC) Wyandotte Cty, KS commercial property owners were so squeezed by taxes and insurance that depressed the commercial market, that many just ceded their property to back tax assessments. They couldn’t lease them for enough to pay taxes and insurance.
Once the county had those properties, they were off the tax rolls entirely. Subsequent reevaluation of tax assessments, with an increase in development rectified the situation. However there is “deja vu” all over again and the major commercial property owners are appealing their rercent assessments saying, “Taxes are killing the county’s golden goose”. These major players are giants such as Nebraska Furniture store, Kansas City Race track, the T-Bones minor league ball park and upscale resturaunts.
The ironic part of all this is that the property that these businesses sit on were acquired through the “takings” clause.
You are wrong, actus, because when we are dealing with governmental actions that enrich government at the direct and immediate expense of productive individuals, where the political branch in question stands to gain a short-term financial benefit for itself at the long-term expense of everyone else (as well as the short-term expense of only a single person or tiny group of owners), expecting that political branch to exercise self-restraint is the height of stupidity.
So all those states, and congress, that are proposing anti-Kelo resolutions are ‘at the height of stupidity’?
Kelo, along with being a horrible decision, was a warning shot to the populace that you need to start paying as much attention to local politics as you do to national ones.
The likely outcome of this is that we will be moving towards a true class system where some people who live in areas where property rights are protected will have an immense advantage over those who live in areas where your right of ownership is in question. When that happens, those areas that do not protect the rights of the people to own their property will start to die because people and business will just move.
Which is happening already. Instead of private capital redeveloping economicaly depressed areas, we have local governments taking them and handing out tax abatements to attract developers. We have a very successful entirely entrepenural redevelopment of a previously depressed commercial area that is now threatened with taxes pricing the original developers out of the area. This while a nearby city financed, tax abated area, is under development.
The initial small investors bought these properties because no one wanted them individually. They brought the area back by forming a “merchant association” and promoting the area as a “bohemian” locale. Small “mom & pop” resturaunts, local crafts people, small art galleries and gift shops blossomed. As the area became successful, property there became more desirable and tax assessments increased significantly. Now many of the small tenants find that they can no longer afford the rent increases demanded by the tax increases. The area is starting to experience long term vacancies and property owners are finding they can’t sell at their appraised values.
Somebody needs to remove that mayor. If you know what I mean. A permanent solution. Somebody there must have the cash to do it.
Here’s the stupidity, actus: to expect these governments to strictly respect property rights over the long term, in the face of a strong (if selfish, corrupt and short-sighted) economic incentive to the contrary, in a legal environment where there is no non-political (i.e., judicial) check on such seizures.
I do agree that in general we need a strong judiciary to check the political branches. But its usually because we’re protecting a minority from the majority. Is it not true that a majority would support this anti-Kelo legislation?
Let’s see….a recent SCOTUS decision regarding a search of the home, where one resident (joint tenant in ownership) agreed to the search and the other resident (joint tenant in ownership)objected to said search resulted in some SC Justice invoking the phrase “a man’s home is his castle”, while agreeing in a prior SCOTUS decision (Kelo)that a “man’s home is his castle, until some government entity wants to take it away”.
Since the latter resident no longer has a home, would his car be “his castle” if he was reduced to living in it?
Why not just buy a new home?
Let me take you back to my first post on this topic: the political branch in question stands to gain a short-term financial benefit for itself at the long-term expense of everyone else (as well as the short-term expense of only a single person or tiny group of owners)
When a “majority” (i.e., a city council) decides that a “minority” (i.e., a single landowner) needs to cough up the goods, that government will find a way to make it happen.
I am not talking about what “resolutions” get passed while we are experiencing a short-term anti-Kelo fervor. I am talking about the long-term, cumulative effect of having strong, specific economic incentives to seize property, in the absence of a clear legal restraint.
Even a clear legal restraint is not 100% reliable so long as there is only one, central authority in charge of policing itself. After all, the Fifth Amendment was passed by a majority, too. It took a while, but eventually, we found ourselves in the position where the judiciary refused to enforce it.
In fact, the decentralization of power that others have mentioned here is the only real protection. (Well, that and a grounding in the principles of freedom. And guns.) But then again, America has not had a great track record as far as centralization of power goes. In the last 70 years or so, the Left has been the one pushing an agenda of strong centralization.
In the case of Kelo, the fact that the Supreme Court even presumes to have the power to resolve this issue is an even bigger problem than the content of the decision itself.
Hmmm.
@ actus
Short version:
What Congress giveth, Congress can taketh away.
What SCOTUS giveth, SCOTUS can taketh away.
i.e. property rights are built on a foundation of sand until and unless the right to private property is widely recognized to be enshrined in the Constitution.
So have a majority pass a ballot amendment to prevent kelo-type takings. If it can protect you from the gay, it can protect your property too.
Ok. so having a federal court decide is centralized or decentralized?
That’s an interesting reading of Kelo. I read it as the courts saying that defacto they won’t be the deciders of whta is a public use, and will leave it up to the elected representatives.
I read it that way too, but what is interesting is that is not much of a check on the power of one of the other branches. What they are also saying is if you elect tyrants, don’t come crying to us. Which, you know, kinda sucks.
Are you being obtuse or are you congenitally stupid?
Since when does the protection of individual rights, standing against the motives of a local majority, depend upon someone just going out and “having” a majority pass a ballot amendment? That’s the whole problem, meat: the economic incentives of a local majority against the property rights of a lone individual.
As between the states and the federal government? Do I really have to answer this question for you? Empowering the federal government at the expense of the states is centralization.
Well, maybe you should use your own noggin rather than gulping down left-wing talking points, Monica.
The federal Constitution was written to act as a restriction on federal power. When the federal government assumed the role of deciding whether actions by a state government were allowable, that’s a centralization.
In a more perfect world, the proper decision of the Court in Kelo should have been to say that it had no power to even consider whether the Connecticut courts were correct. In effect, in this one case, that would have meant that the Kelo homeowners still lost their homes. But for the Court to adopt this position would mean that, overall, the federal government would have far less economic power, which would generally increase the economic liberty of all Americans (again, because of the benefits of decentralization).
But that’s not the government we live under. If the federal government is going to usurp this power and aggrandize itself at the expense of the decentralized, local authorities, the least it could do is enforce the actual restriction against this kind of property seizure.
Or give a reach-around.
So Kelo was decentralizing: now federal courts have less ability to overturn state takings.
State takings are regulated by the 14th amendment quite explicitly (nor shall any state deprive any person of life, liberty, or property, without due process of law;). That wasn’t written to act as a restriction on federal power, but state power.
By more perfect, you mean a world without the 14th amendment?
Wrong. With Kelo, the federal government reiterated its assertion that it is the agency that gets to decide whether such takings are proper or not. The fact that it happened to affirm the State court’s result in this one case pales in significance to the broader ramifications of this line of so-called reasoning.
Which, if you bothered to actually read, you would see that I am referring to TWO LEVELS on which Kelo was wrongly decided: the FIRST being the idiotic, sand-poundingly stupid idea that the term “public use” means “private use”; and the SECOND being the Court’s centralizing presumption that it has the power to even hear and decide the case.
It says that in the Fifth Amendment, too, meat. But why do you think they bothered to put in additional language in the Fifth Amendment explicitly regarding takings for public use? Why is it in the Fifth and not the 14th?
The answer to this rudimentary question is that the portion of the 14th Amendment that you quoted is only a procedural rule. The 14th Amendment, of course, is the pretense on which the federal government currently bases its usurpation of power over actions by states, but that is a separate issue. But not even the Supreme Court believes that the 14th Amendment, all by itself, is the source of the prohibition against a state’s taking of property. The substantive prohibition against takings, of course, is in the Fifth Amendment; the 14th is merely the procedural device through which the substantive restriction of the Fifth is applied to the States.
On one level, at the very least, I mean a world where the 14th Amendment is judged to mean what it actually means, not given the meaning ascribed to it decades after its passage, a new meaning that just happens to aggrandize the power of the federal government and its courts over the States in virtually all respects.
I mean a world where there is still something of the notion of federalism.
I mean a world where government derives its power from the consent of the governed.
But yes, at a basic, primitive level, I mean a world without the current, dead wrong, self-serving, power-grabbing, grotesque interpretation of the 14th Amendment, of which Kelo is but a recent example.
Uh, the Kelo court gave power to localities to take property. If Kelo had never been heard, the localities would have even more power to take property. Sorry if this breaks your idea that federalism is always good.
Seems to me that where the only real restriction* on the taking of property is that it must be a public use, the problem with giving the political branch, the branch charged with deciding which properties the government wants, the authority to decide what is a public use is that it reads the protection right out of the constitution. That’s obvious, isn’t it?
*I say “real protection” for “public use” to distunguish it from “fair compensation” and “due process” which are really just administratvie details.
TW: tax
P.S. Courts have had the ability to restrict local governments from taking property for quite some time (most of the bill of rights have been applied to the states). Kelo didn’t create it.
What the hell are you talking about? The Kelo decision “gave” nothing. It held that the federal government would do little or nothing to stop state governments from taking property. The states derive that power from their own state laws.
In case you have had trouble following along up to now, what I have been saying is that it would have been preferable if the SC had simply declined jurisdiction for lack of a federal question.
Failing that, if the Court was going to overreach its authority anyway (which it seems hell bent on doing), the least it could have done is stood up for the limitation of government power and protected the individual’s right not to have his property stolen and given to Pfizer.
But in both respects, the Kelo decision is a Leftist’s wet dream, right? It (a) continues the federal government’s expansion of power at the expense of the States (all socialists love centralization of economic power, after all), and (b) it undermines the individual’s right to property, which, let’s face it, is socialism’s white whale.
Pardon me if it makes me want to start a revolution.
Damn, you are a freaking idiot! If Kelo had never been heard (by SCOTUS, I presume you mean), then the local governments would have been unaffected, and still subject to their own State’s laws, and subject to the previous Supreme Court (bad) case law on Eminent Domain.
(By the way, how can you say, in one breath, that the decision “gave” the localities power, but in the next say that if there were no Kelo decision, they would have even more power? Even in your warped, ill-informed view of things, you have to see how these two statements are contradictory.)
Just when I thought you couldn’t get any dumber. Federalism is a principle that is “good” (to use your 4th grade vocabulary). It means that there are many independent local governments. This means that those local governments will do things differently from one another. Some will therefore have better laws than others. In case you haven’t gotten through 8th grade civics class yet, this is precisely what federalism is all about.
It does not mean that any one person will agree with every law that every locality enacts. Because the localities will be different from one another, it necessarily follows that anyone with a consistent set of attitudes about what the law should be will find that some of the localities’ laws are “good” and others are not as “good.”
Abstract thought is not your strong suit, huh?
Phinn,
God Bless You for carrying on with actus – I can only imagine his Con Law grades – erp. I am too damn tired and deep into the Nyquil to do more than say “rah, rah, go Phinn go!”. Very good analysis – excellent really – on Kelo. Top notch stuff.
I understand this is what you’re saying. And I’m pointing out its idiotic. That would result in more outrageous takings, not less.
But Kelo doesn’t centralize power. It turns over much of the decision to state and local legislatures, taking away basis upon which federal courts can overturn takings.
In this case, federalism is undermining rights to property. We could have a strong federal court review of takings, which prevented localities from many different takings. Or we could local governments take away. Kelo chose the latter. And for some idiotic reason you think it is centralization for a federal court to take power away from the federal courts and give it to state and local legislatures. God knows why.
Wait, you think it better if the federal courts had never intervened in New London’s takings?
Late to the debate, but something still blew my mind…
From the Let Them Eat Cake Department: At 3:41 pm on 3/28, actus graced us with this little gem in response to a snarky but still logical question:
Nice.
I don’t know if actus is aware of what happens to property values when each property surrounding it is “condemned” by the city, but rest assured that the owners involved in the Kelo case are getting nowhere near fair market value for their home, and thus will not be able to purchase an equivalent home in a similar community – especially since the City of New London has smacked them with a five-year bill for past-due rent on the houses that they were making payments on in that time.
It’s pretty tough to “buy a new home” when your current home is being yanked out from under you for less than 50 cents on the dollar of FMV.
Here in DC people are being offered over twice what their tax assessment is for stadium property. And they’re bitching.
But if they’re not getting a just compensation, that’s something entirely different than public use.
Well, those filthy plebes. Don’t they have the civic love for country and community to just volunteer their homes, up and relocate away from schoolsand jobs, neighbors and friends, for the vital interest of serving MLB, or was it the NFL?
MLB. And yes, the stadium deal is a total boondoggle—apparently DC will be making money off of the suburban ticket goers. Or so they say.
But waht I do find interesting is that the price they were paying taxes on isn’t enough fair market value. Even when doubled.
I am going to try to explain this one last time, actus. If you don’t get it after this, then we can only assume that your posts are being typed by one or more monkeys that have taken over the computer at the zoo, or perhaps an escaped mental patient.
In terms of the balance of power between the states and the federal government, the Kelo decision gave the local jurisdictions precisely nothing. Nothing in the decision affected Connecticut’s State law in any way. It was 100% neutral as to the substantive rules of Connecticut’s eminent domain laws. Kelo was a federal decision, and as such it defined the federal limits on a State’s ability to seize property. State law was unaffected.
Even though the Kelo Court said, in effect, that there are no real federal limits, this decision in no way changed what the rules of law are at the State level.
The preferable outcome would have been for the Court to decline jurisdiction for lack of a federal question. I say this because such a result would have had a profound significance that extended outside the context of eminent domain. In the Kelo case, by itself, in a very short-sighted sense, it would have made no practical difference in the case’s outcome, since the Supreme Court affirmed what the Connecticut courts had already done (approve the seizure). Declining jurisdiction would have left that decision stand, just as the Supreme Court’s affirmance let it stand.
This result (in the short-term, narrow context of eminent domain law only) would have been bad for the people of Connecticut, since Connecticut’s decision in Kelo represented a change in that State’s law. Before Kelo was decided by the Connecticut courts, that state recognized the same ancient common law protections that every other state has observed—that government cannot seize property from A to give it to B because B might be a better tax-payer.
But in order for the Supreme Court to have declined jurisdiction in the Kelo case, the Court would have had to re-discover a Constitutional principle that is broader and more far-reaching than eminent domain law. Declining jurisdiction would have represented a major shift in the Constitutional structure of our government—a long-awaited, beneficial restoration of the idea that the States are sovereign and independent jurisdictions, that the federal government is not a government of general powers, but only has powers delegated to it by the States.
Now, as a matter of the Kelo plaintiffs’ personal interests, as litigants, the Supreme Court’s decision to decline jurisdiction (on grounds of federalism) would have meant little or nothing. They would be in the same position they are now (i.e., forcibly ejected from their property to benefit Pfizer).
Everyone realizes that by assuming jurisdiction in Kelo, the Supreme Court did not break any new legal ground. The Court has been wrongly asserting federal jurisdiction in eminent domain cases (and many other areas) for a long time. Kelo was nothing new in that regard.
My complaint about the Court’s disregard of federalism principles certainly applies to Kelo, but in this respect, Kelo does not stand for anything unique, other than as a garden-variety example of the exercise of federal jurisdiction over issues that are strictly state matters.
Your confusion, actus, seems to stem from your apparent inability to grasp the idea that federalism and eminent domain are separate issues. Before the Court even decided the case, the acceptance of federal jurisdiction violated the principles of federalism. The Kelo Court’s decision to do so was certainly not ground-breaking, but it was still wrong, still illegitimate.
However, having done so, having assumed a jurisdiction it does not have, having violated Connecticut’s sovereignty (yet again) by asserting jurisdiction, the Supreme Court should have reversed the Connecticut courts in this one case.
Like the Court’s actual decision, reversing the Connecticut courts would have changed nothing with regard to the scope of federal jurisdiction. That issue has been decided by many other cases, and further confirmed in Kelo by the mere act of agreeing to hear the case. But a reversal would have, at least, preserved the ordinary, common-sense meaning of the term “public use.” As it stands, the Supreme Court’s actual decision, in addition to perpetuating the false assertion of federal jurisdiction, takes the added ridiculous step of telling us that “public use” includes “transfer of private ownership in fee simple without restriction.”
The fact that the Supreme Court did not reverse the Connecticut courts’ decision in this one case is not an affirmation of federalism, nor is it an act of decentralization of power. On the contrary, the mere act of asserting federal jurisdiction was yet another reaffirmation that the principle of federalism is essentially dead.
States now apparently have greater leeway to declare things public uses. That’s what’s got everybody up in arms. Haven’t you noticed that?
They could have overturned the state takings, or they could have let them stay. They let them stay. I know it was unaffected. That’s the point of the decision.
Oh. You wanted the Kelo court to overturn the 14th amendment. I didn’t know i was dealing with wingnuttia.
Oh I get that they’re different. Its just that this case is a pro-federalism outcome: more power to lovely local governments that the federalists trust so much.
I also don’t think that federalism is a bar to jurisdiction for questions like this. Its certainly within the power of the court to hear a federalism question. Its certainly a question whether a 14th amendment right is violated. You disagree on the answer, but nobody challenges that there is a question.
You’re looking at this every which way but up. A court deciding to give up its powers is a loss for federalism. A court entertaining a 14th amendment question is a ‘mere act’ which reaffirms that fedeeralism is dead. nuts.
Stringing up a few grabby local pols might get the point across.
All you are saying, actus, is that the Kelo decision is not as bad for federalism as it could have been.
Fine. Whoop-dee-fucking-do. I suppose the Supreme Court could have declared that all substantive State eminent domain laws are hereby preempted, effectively null and void, and all eminent domain decisions shall henceforth be federal only.
Such a usurpation would be worse than what we have now, I guess, in some ways. That power-grab would be about the same magnitude, though, as several of their previous usurpations have been, just a little further down the road to dissolving the states altogether. In any event, I prefer to evaluate governmental acts by how good they are, not by how much worse they could have been.
What you have been trying to say, without actually saying it, is that having a federal substantive law of eminent domain that places no real limits on state condemnations is, in its practical effect, no different than having a federal court system that refuses to even hear such cases on jurisdictional grounds.
First, that’s a practical argument, not a legal one. The primary significance of Supreme Court opinions lies not in the outcome of the specific cases and the parties directly affected, but rather in the Court’s reasoning. The Court only hears a few cases every year, but the law it uses to reach those decisions lives on indefinitely and controls the outcomes of many thousands of cases. Therefore, a person who actually cares about the law will be more concerned with the reasons for the Court’s decisions.
Second, it ignores the effects of the Court’s reasoning on future cases, the nature of which we obviously can’t know.
Third, approving the Kelo decision as though it actually helps federalism is that the Kelo decision also repeated the Court’s habit of re-defining the meaning of Constitutional terms. The Court has, in its illustrious past, re-defined various terms to mean the exact opposite of what they actually mean. And here, it has done so again. Even if I were to find some cold comfort in the idea that, in this one instance, the federal government has voluntarily ceased to exert any real influence over the States, the fundamental disregard for the law and the plain meaning of ordinary words would be reason enough to reject it. The Court managed to turn the meaning of “public use” entirely on its head, so that it now means “privately owned without restriction by someone else.” Feudal kings were in the habit of dispossessing landowners in order to install replacements who would pay more in tribute for the privilege. It seems that we have come full circle and arrived at a similar result. Congratulations.
With regard to the 14th Amendment, let me ask you a historical question: did the South legally secede, or was the secession legally ineffective and a nullity?
Right. I mean, the court could also have overturned Roe v. Wade, but that wasn’t really the question presented. Nor your wingnutty views of the 14th amendment.
Not on the question presented. I don’t know on what basis they would make this declaration.
Basically, the federal constitution sets minimum standards that states must abide by in takings. What the court did was relax these standards.
When I first said this, I said ‘defacto.’
Its a sign of judicial restraint when courts simply resolve the issue before them, rather than legislating for the future.
Lee killed more americans than bin laden or massaoui, and yet lived. The south committed treason. War’s over. Face it, they lost. Victory has consequences.
My folks live near where the Deepdale Club is (unfortunately not near enough to be in that tax bracket), but from what they’ve told me, there are some Billionaires – with a capital B – who are members there. Suffice it to say that there will be some loud and powerful opposition this land grab.
That’s not what I asked you. I asked you a legal question.
Was the Southern secession legally effective, or not?
I called it treason. I know that word has been demeaned lately.
Reading comprehension problem?
Was the secession, at any point, legally effective or not? It’s a simple yes-or-no question.
By the way, States can’t commit treason. Only people can. I realize you believe that various Southerners who fought the war were treasonous. That has absolutely no bearing on the legal effect of the purported secession.
Constitutions are legal documents, are they not?
The people secceeding were commiting treason. That quite clearly tells you how ‘legally effective’ it is.
People seceded? I thought states seceded.
All by themselves. Without anybody voting or deciding.
Refighting the War of the Northern Aggression? Kewl.
What actus is trying desperately NOT to do is to say that yes, in fact, the secession of the states of the Confederacy was indeed legally effective.
One proof of that assertion is the existence of the state of West Virginia. From the wikipedia:
There was an approximately two-year period where there were two separate, elected governments of the Commonwealth of Virginia – the secessionist one at Richmond, and the pro-union government meeting at Wheeling in what is now WV.
If the secession of the Confederate states was not “legally effective,” then the separate state of West Virgina would never have been founded, and the Virginia government founded under the Wheeling Convention would have taken over at Richmond after the end of the war.
Furthermore, congressional enabling acts were required of the states of the defunct CSA – proof of the CSA states ratifying the 13th and 14th amendments and so on – before readmission to the union.
Regrettably, actus probably cannot bring himself to state that the Confederacy was legally right at that time, even though they were also historically wrong at that time.
I said its treason. That means its not ‘legally effective.’ Whatever you want that to mean.
Why is that? Sounds like people left virginia, and the court said you can go ahead and leave a treasonous state.
Its interesting that you use acts after the secession to show that it was originally legal. They could have withdrawn illegally, and still require re-admission. But mostly it looks like victor’s justice. Having just defeated the traitors, we’re not about to let them vote in our government till they wisen up.
I’m going to assume that you’re being deliberately dense, actus. People don’t secede any more than people ratify amendments to the constitution. People can participate in the process, but a person cannot secede any more than a person can, for instance, legitimately and singly and on his own authority, collect ballots for a presidential election.
Now, if what you meant to say was that the people who voted to secede were traitors, you might consider that it would have been a clearer communication if you’d said something resembling that. But clear communication (assuming you’re not indulging in deliberate obfuscation) appears not to be one of your strong points.
I’m probably one of the few people here that thinks you might have some reasonable points to argue, but I’m disinclined to pay any more attention to you if you’re going to continue offering cryptic and sloppy responses to the comments of others. On the other hand, if it’s your intention to act as a sort of human dart board, you’re bang on.
Under what Constitutional clause, exactly?
Governments are instituted among Men, deriving their just Powers from the Consent of the Governed, that whenever any Form of Government becomes destructive to these Ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its Foundation on such Principles and organizing its Powers in such Form, as to them shall seem most likely to effect their Safety and Happiness.
I really thought it was kind of obvious.
congress sets the standards for admitting states.
But it seems to me that you have a hangup on this “legally effective” thing. as if that is some absolution. If I kill someone, their death is “legally effective.” And the law will treat it as such. But it doesn’t make it ok for me to do it. If I commit treason, that treason is “legally effective.”
Speaking of legally effective, that one isn’t quite.
I get such a kick watching you statists tie yourselves up in knots.
If you kill someone, that’s not “legally effective.” That’s factually effective. The legal character of whether that act was a crime is based on various other facts and circumstances.
A State (or any governmental entity), in contrast, is a legal fiction. When it acts, it does so in only two ways: legally, or not. It’s official acts are either effective or they are not. There is no factual act of secession (or admittance into a Union). It is an abstraction that consists entirely of recognition by the parties.
Your term ‘legally effective’ has quite a bit of ambiguity in it. You see my point that something that is ‘legally effective,’ that is treated by the law as if it happened— Say, when I kill someone or when a state comes back into the union—doesn’t mean that the things that happened are permissible and unpunisheable.
I’d say that acts of the state are quite real, effective, and factual. Try going against them someday. It is just ‘fiction’ right?
The terms “legal” or “legally effective” are not ambiguous at all. It is a matter of the fundamental difference between law and fact. Whether a physical event occurred (i.e., the killing of someone) is a matter of fact. (Sometimes this is called ‘historical fact.’
Whether that killing was legal (e.g., justified or not, or murder or something else) is a question of law.
Let’s say a person signs a document that states that he is bound to perform certain acts, and in doing so purports and believes that he is executing a contract. If he is a minor, however, this purported execution of a contract is void. As a matter of fact, everyone can agree that he signed the document, but as a matter of law, this act was not legally effective to create a contract due to his age.
Whether a state seceded is purely a question of law. We know the States purported to secede. The question I put to you is whether, in your opinion, they ever actually did, as a matter of law.
I take it from your previous statements, you would say “no,” but now that you might understand the question better, I thought you’d like another chance to state your position clearly.
Can I say that they did secceed and that this was treason and not allowed? because that is what I believe happened. I believe you feel that if they did in fact secceed, then this is legitimate.
In your formulation: I can enter into a contract that is ‘legally effective’ but it can be for something that is not permitted, and illegal.
No. A contract to perform an illegal act is void. As a matter of law, such a contract was never formed.
Similarly, a secession, if legal, can’t be treason. As of the moment of secession, the seceded entity no longer owes a duty of loyalty to the former sovereign. As of that moment, there are two separate entities, both legitimate. You can’t punish a foreigner for treason.
Just as with the American colonies’ secession from England. If that secession was legal, then it was not treason. If it was illegal (i.e., the purported secession never actually occurred), then those pretending to do so were very likely guilty of treason. Therefore, whether American independence was treasonous is a matter of legal opinion (the English crown at the time believing it was, the colonists believing it wasn’t). But only one of them was correct.
So, to have a legitimate opinion on the subject of the legality of the South’s secession, either it actually happened (i.e., it was legal, and effective), or it only purported to happen and those attempting to do so were treasonous.
But forming the contract is still illegal. And sometimes there are things to undo. If I contract to perform an illegall act, and receive money, then the fact that the money is ordered returned doens’t mean that the contract was permissible.
Likewise if I seceed, and then am ordered to return, the fact that i’m ordered to return doesn’t make the original secession permissible.
Thats exactly what makes it treason: that you’re picking another sovereign.
You’re conflating, again, legal as in permissible and legal as in did it happen and should we act as if it happened.
I thikn the signers were aware that they would be hung if they lost the war. They knew what they were doing.
No, if the contract is void for any reason (e.g., because a party is a minor, or the purported contract has an illegal purpose, etc.), that means that the contract was never made. The parties may have engaged in certain acts believing that they were forming a contract, but as a matter of law, they never actually did. The existence (or non-existence) of a contract is a matter of law.
So is secession. Whether a secession occurred is a matter of law.
They are the same thing. If it is legal for a state to secede, and a state passes an act of secession, then as of the moment the act is passed, the state has seceded. At that point, it is a foreign territory. If it is legal for the state to secede, it can’t be a form of treason to do so. Otherwise, if it were treason, then secession would not be legal. Therefore, it can’t be both treasonous to secede and legal to secede.
If it is not legal for a state to secede, then the state officials can purport to pass all the acts of secession they want, but those acts are legally void and ineffective. The union to which it belongs may also consider the attempt to secede an act of treason.
Which was it? Is it legal for a state to secede or not?
No. Its not legal to kill someone, but the police will act as if I did. Its ‘effective’ in that sense.
And its ok to act as if htey have. Put them in jail for treason, for example.
This sort of formalism is really ridiculous.
Interesting. A cursory Google search seems to indicate that the possibility of secession was deliberately provided for in the Constitution. Further, that no one was ever charged with treason as a result of secession.
Actus, it’s your contention that the secession was illegal? If so, on what basis?
Treason. If its a wide enough concept to fit to liberals these days, it certainly fits into those that made war then.
I’m not asking for your caricature of…whatever, I’m asking you what you think. If this is what you really think, you might do well to pursue a career at McDonald’s.
Just a suggestion. Because as a lawyer, you’re going to make at least an adequate fry chef.
Sure thing. I’ll make sure to win wars and have a victor’s justice. Like charging Jeff Davis with treason.
My apologies to everyone who warned me that actus is an idiot and not worthy of discussing anything with. I think he might not be an idiot, but I’m thinking that he’s conversationally indistinguishable from one, so: I give up. Goodbye, actus.
It’s called legal reasoning.
In any event, your objections make no sense.
And you can’t expect the word “treason” to be a satisfactory answer to the question of why secession is supposedly illegal. That would be circular. You are saying that secession is illegal because it’s treason. But why is it treason? If secession were legal, then it couldn’t be treason. You are begging the question. A legitimate argument would have to address the nature of the relationship between the states, the relationship between the federal government and the states, and other principles and precedents.
As for the US government having the Constitutional power to wage that war, then you might want to consider the fact that it was suggested at the Constitutional Convention that the power to prevent secession by military force was actually proposed. Madison argued against it (you might know him as “the father of the Constitution”), and it was rejected and eliminated from the final document.
You might also want to consider the proposed secession of the New England states earlier in the century, when despite the vigorous public debate over whether they should secede, not one legal opinion was ever expressed that they did not have the right to do so. (Many people took exactly the same position in the run-up to 1861, but you may not have read about them in your history classes.)
You might also consider that the colonies unilaterally seceded from England. That, too, precipitated a war for independence. Either that secession was legal or not. If it was legal, then secession was legal in 1861, which would mean that waging a war to prevent Southern independence was illegal, and forcing them to be re-annexed back into the union against their will was unconstitutional.
You are familiar with the concept of illegal wars? Unconstitutionality? Or do you think that might makes right, like an animal?
So’s the concept of laches. The failure of them to be in the union could require readmittence. That doens’t mean its permissible to leave the union. Or that we need a formal chain connecting all hte actions together.
What part of might makes right do you not understand?
You realize right, that the constitution itself is ‘illegal’ since we didn’t adopt it according to the procedure set forth in the articles of confederation? What does that do your notions of ‘constitutionality’? Or is it just ridiculous formalism?
I know. And treason doesn’t have an exception making seccession legal. Since it happens that treason is hte law, and seccession isn’t, that sounds like a pretty damn good argument to me.
Congress has the power to suppress insurrections. I’m guessing we can also go to war with people that attack our fort sumpters, or our world trade centers. Whether they are a government or not. Whether they are al-qaeda, rebels, or the confederate states of america.
Why would what happens under english law under a tyrant change what happens under the US constitution?
Laches is an equitable concept, not a legal one. It is an entirely separate analysis, and is done only after the legal analysis is complete, and then only if necessary.
The fact that you couldn’t complete the first step of the analysis leads me to believe that you could not complete the second.
Your inability to walk through a formal chain of logical and legal reasoning doesn’t mean that one isn’t needed, or meaningful.
I understand it perfectly. It is the philosophy of totalitarians, leftists and other scum.
It’s an interesting question, but my first reaction is that ratifying the second contains an implicit recission of the first. Much like when a second contract supercedes a preceding one by necessary implication.
Then you are a fool. It isn’t an argument at all. I don’t mean that it’s a bad argument. I mean that it is not an actual argument. It’s a way of saying, when asked why, something like “‘cause that’s the way it is.”
If you can’t answer the question, just say so. Actually, I suppose you already have.
Circular reasoning again. Ft. Sumter is in South Carolina. If the secession was legal, then it was an unwanted foreign military installation inside South Carolina territory that had been given ample notice by the government of that territory to withdraw, and thus the eviction (accomplished without killing anyone, by the way) was also legal. So, that still does not answer the question.
Incidentally, the Confederacy sent a commission to Washington DC before the shooting started with authority to negotiate a price to compensate the US for any monetary losses arising from secession, such as payment of the South’s portion of the US national debt. Lincoln refused to meet with them, just as he refused Napoleon III’s offer to mediate.
I suppose that the answer lies somewhere in the right of self-determination, government by consent of the governed, etc.
Why after?
What makes you say I’m unable to do this? The US is working fine under the constitution, even though we abandoned the articles of confederation outside of how it was proposed to work. Your contract analogy is cute, but inapposite. These aren’t contracts. There was a process for changing the articles of confederation, and it wasn’t followed. Of course we quite explicitly ignored it. But the legal chain was broken, it was violated.
If the seccession was legal, why would it affect federal forts? Those don’t seceed do they? Even if it was legal, and the federal fort is foreign power, the US can declare war on whoever it likes. At least according to the constitution.
Sounds like some tight legal reasoning.
The history of the court system, the success of the law courts and the relative lack of success of the ecclesiastical and chancery courts (which developed and used equity concepts to resolve cases).
(1) the fact that I asked you a simple legal question, which you butchered and mangled repeatedly with your inability to grasp the most basic concepts, such as your confusion of contract law with criminal law, and inabiity to distinguish between law and fact.
(2) the fact that you still think that whether you believe “the US is working fine” now has anything to do with the simple legal and logical questions I had asked.
Any lawful government has the right to expel a foreign military presence inside its territory. Refusing to leave is an act of war. If the US military had respected South Carolina’s instructions and left peacefully, then the US might have been entitled to compensation for the loss of land and other property. That was precisely the type of claim that the Confederate commission was sent to negotiate.
Nowhere in the Constitution does it provide that the federal government has the power to annex foreign states into the Union against those states’ will, occupy them, divide them into military districts, force them to re-write their state constitutions, all while denying them representation in the Congress.
Or is there a provision that allows the US government to behave like the Roman Empire that I missed somewhere?
I could fart the tune to Yankee Doodle Dandy and call it legal reasoning and you wouldn’t know the difference.
Why does the history make it a question of before/after. I’d like to hear some showing of why secession is treated legally and not equitably. Sounds like equity would be a better way to go, its preference for how things are done, and its informality given a lack of formal rules being plusses.
You think secession is a simple legal question? Wow. Good on ya professor! As to your simplicity, I gave you my answer: its treason, which doens’t recognize an exception for secession.
Well we can declare war, supress insurrection, and we can admit new states. To me thats enough.
If you have a problem with that, I suggest you take it up with the people of Iraq. Good luck with your ‘simple’ answers.