Ask and Ye Shall Receive

Here’s a good read on Benton Harbor from the libertarian perspective.

My only quibble is with the final “worse than Kelo” bit. At least the citizens of Kelo New London have the right to vote out their scumbags.






110 replies
  1. 1
    Face says:

    Link TL;WR

    However, someone in a diff post made a great point: does this “mayor unelect” have the power and stones to control when/where/how federal and local elections are run? Can he/she determine where and how many voting booths exist in, say, the black versus white areas of town? If so, why wouldn’t this Accountable-To-Noone complete jimmy the elections for Republicans?

    Shorter: who’s the guy’s boss? What’s the check on his power?

  2. 2
    Fargus says:

    They make a credible case on why Kelo is so terrible, but I think they would have an even stronger case if they noted that both situations have things that are uniquely bad about them, compared with the other. Kelo applies to the whole country and Michigan’s EFM law doesn’t. But the citizens affected by Kelo still have the right to vote out their local representatives trying to make land grabs, while Michiganders don’t.

    In fact, it seems to me that with the beefing up of the EFM law, every Michigander is living under a local government that exists only at the pleasure of Rick Snyder, right?

  3. 3
    Walker says:

    The observation that the golf course has long been in the works was some good investigation. That certainly makes things look a lot murkier here.

  4. 4
    Yevgraf (fka Michael) says:

    Voting is not liberty. One demonstrates his liberty by leaving the places he doesn’t like and going to the places that are run the way he likes. Colored folks in the segregated south should have one that, rather than impose those silly ideas of equal voting rights and economic inclusion, and this applies to the citizens of Benton Harbour and Detroit as well.

    Now, the truest measure of freedom is when one binds together with like minded investors and collectively owns shares in a government chartered institution with no individual liability flowing back, an immense political funding kitty, and clever managers who know where this internationally owned collective needs to be on critical issues of public policy.

    Oh, and unions are bad.

  5. 5
    Fargus says:

    @Walker: Agreed, though I never thought that the golf course was something dreamed up by Snyder and his cronies. I thought the implication was that the installation of an EFM would make the golf course project sail a whole lot smoother.

    Whether that’s true is another question, but simply noting that the project has been in the works for a while isn’t dispositive.

  6. 6
    JohnR says:

    Goodness. It would seem that Jason Kuznicki is the fabled True Libertarian (the spiritual cousin to the equally fabled True Scotsman aka Loch Ness Monster).

  7. 7
    Villago Delenda Est says:

    @Yevgraf (fka Michael):

    Now, the truest measure of freedom is when one binds together with like minded investors and collectively owns shares in a government chartered institution with no individual liability flowing back, an immense political funding kitty, and clever managers who know where this internationally owned collective needs to be on critical issues of public policy.

    This paragraph moved me to tears.

    Just beautiful.

  8. 8
    Hermione Granger-Weasley says:

    @JohnR: except there is no true libertarianism in America, because America does not actually have a freemarket.
    All market-based policies have been corrupted by regulatory capture, rigged markets and cartels.
    A basic premise of libertarianism is that freemarket capitalism improves the human condition through individual freedom/liberty. This is empirically no longer true in America, because we only have a fake-freemarket. Actually evolutionary economists believe that this is a false premise over all.

    Evolutionary economics draws on the evolutionary methodology of Charles Darwin and the non-equilibrium economics principle of circular and cumulative causation. It is naturalistic in purging earlier notions of economic change as teleological or necessarily improving the human condition.

    Please note, econ is not my domain and commenters fhtagn and Mandramas had to explain a lot of classical econ to me. I am however, interested in evolutionary economics because of game theory and the evolution of cooperation and reciprocal altruism.

  9. 9
    Richard Webb says:

    Oops… s/Kelo/New London/

    Details, details. The Wikipedia article has a pretty good summary.

    Cases like Kelo V New London can be a difficult call.

  10. 10
    The Raven says:

    Andy Kroll wrote a very nice article on this takeover for Mother Jones; it is here. The Michigan advocates of this law were funded by the usual suspects: the Koch Foundation, the DeVos Foundation, the Prince Foundation (parents of Erik, of Blackwater), Walton Family Foundation (Wal-Mart.)

    The libertarian advocacy of property rights conceals the reality that, as Adam Smith said, writing about societies with very large concentration of property in a very small number of hands, “Civil government, so far as it is instituted for the security of property, is in reality instituted for the defence of the rich against the poor, or of those who have some property against those who have none at all.”

    In Wealth of Nations, Smith was making a case for the widespread distribution of property as a bulwark of civil liberties. In his time, of course, productive property was held largely by an oppressive aristocracy. Smith was their great opponent, and I doubt he would have had much sympathy for the any of the aristocrat-wannabes who have been abusing his work to find support for their desire to establish a class system.

    Croak!

  11. 11
    Hermione Granger-Weasley says:

    Jason says, “Sadly, my team has some ‘fessing up to do.”
    So lets hear it Jason, lets really hear it.
    This is the way libertarianism WORKS in contemporary America.
    What happened to Benton Harbor is libertarian SOP, the invisible hand fisting the poor and the weak again.

    Modern economic experience demonstrates overwhelmingly that the free market is a powerful engine of economic prosperity. Nations the world over are clamoring to shed the chains of central planning and unleash the creative energy of free men and women. The principles of the American Revolution — individual liberty, limited government, the free market and the rule of law — have become the dominant paradigm of enlightened society.

    This is EMPIRICALLY untrue in America. Freemarket capitialsm only improves the human condition of the richies.
    You, Jason Kuznicki, are a bulshytt talker, like all libertarians in my experience.

  12. 12
    RichJ says:

    The citizens of Kelo? Really John? Ouch.

  13. 13
    Chris says:

    @Hermione Granger-Weasley:

    A basic premise of libertarianism is that freemarket capitalism improves the human condition through individual freedom/liberty. This is empirically no longer true in America, because we only have a fake-freemarket.

    A “true” free market is as much of a fairytale as a “true” communist society, methinks.

    Amusingly, some conservatives have caught onto the “corrupted,” “rigged markets,” “cartels” thing and started a facebook group called “STOP blaming capitalism for socialism’s failures.” The thesis is that because those things aren’t supposed to exist in free market theory, the current system isn’t free market and therefore it must be socialism.

  14. 14
    Hermione Granger-Weasley says:

    Please note, econ is not my domain and commenters fhtagn and Mandramas had to explain a lot of classical econ to me.

    and Cat and Charles Butcher.
    ;)

  15. 15
    Original Lee says:

    @Fargus: Pretty much. I have family living in small lakeshore towns all over Michigan, and they are both pissed off and terrified. Rumor has it that one town will have to close its school system for most of the year so they can present a good set of books because they want to keep their public beaches as public beaches. Tourism is the major industry, but people won’t come unless they have beach access to the lake. (Sorry, no linky ’cause it’s just rumor at this point.)

  16. 16
    Hermione Granger-Weasley says:

    And while im gettin this off my chest.
    One thing I despise about the LoOG is we always get this bulshytt about how liberals brought this on themselves.
    Like Freddie saying that

    pity charity liberalism is at best uninterested in (and often downright hostile towards) worker organization, unions, regulation, and other attempts to empower workers in relation to capital and poor people in relation to the rich.

    WTF? Its the dems fault that unions are being wiped out?
    Heres EDK AMG the Dems have lost the narrative!
    Yes its Our Fault conservatives and libertarians lie their asses off.
    And now Jason Kuznicki.
    What happened to Benton Harbor was CAUSED by corrupt DEMOCRATS!

    Invertor-dementors right down the line.

  17. 17
    Original Lee says:

    Please note: the golf course ain’t gonna un-happen. They’ve had the grand opening whatever already. People are pissed that the park is gone. It was unusable for years due to pollution and lack of money for upkeep, and finally there was money from somewhere to clean it up and make it usuable again. Looks like it got cleaned up so they could sell the land swap deal. Now they have to clean up the swapped land before they can have a public park again.

    Similar situation a couple of towns over about 10 years ago: land was donated for the purpose of having a local school, school district decided to close school, now what? Big mess in terms of trying to figure out what to do if purpose for which land was donated goes away. Michigan state law doesn’t have a whole lot to say on this point, apparently.

  18. 18
    The Raven says:

    @Original Lee: “the golf course ain’t gonna un-happen.”

    Under Kelo, it could. This is probably why Kelo was fought so hard by the “libertarians.”

  19. 19
    tomvox1 says:

    My only quibble is with the final “worse than Kelo” bit. At least the citizens of Kelo have the right to vote out their scumbags.

    I’d have to grudgingly agree with the glibertarians on this one–Kelo pushed the boundaries of eminent domain into the realm of forced private property-to-private property transfer under the justification of “economic development,” whereas before eminent domain was the sole purview of the state, and almost exclusively for the purpose of public use.

    The Court held in a 5–4 decision that the general benefits a community enjoyed from economic growth qualified such redevelopment plans as a permissible “public use” under the Takings Clause of the Fifth Amendment.

    Voting out your representatives after they and all future representatives have been given the power to take your land and give it to a private developer is pretty cold comfort. It’s sort of like the flipside of Citizens United where in that case they gave corporations the rights of the individual and in Kelo they gave corporations the rights of the state. Next, they’ll be given the rights and benefits of religions!

  20. 20
    The Raven says:

    @Hermione Granger-Weasley: “Its the dems fault that unions are being wiped out?”

    In part, yes. The Dems, over the years, had many opportunities to repeal the Taft-Hartley act and… (crickets)

  21. 21
    Hermione Granger-Weasley says:

    Shorter Kuznicki: What just happened to Benton Harbor was caused by corrupt democratic town officials that were also bad managers. The libertarian organization did have some minor input but Evuul Big Government was the agent that allowed the libertarian freemarket fisting that the citizens of Benton Harbor actually richly deserved for being takers instead of makers.

  22. 22
    Stillwater says:

    @The Raven: This is probably why Kelo was fought so hard by the “libertarians.”

    Don’t understand the scare quotes here.

  23. 23
    Hermione Granger-Weasley says:

    @The Raven: you are not getting my point.
    My point is these libertarians, neoliberals, liberal-tarians, glibertarians, po-mo conservatives, crpto-conservatives, classic liberals… all blame the Dems FIRST.
    They all came up through the LoOG and they all used to comment at Culture 11 when I first met them (not Kuznicki).
    It is the naked attempt to spread the blame around, the both-sides-do-it meme.

  24. 24
    BTD says:

    @tomvox1:

    FTR, Kelo followed established precedent.

    It didn’t “push” anything.

  25. 25
    Stillwater says:

    @The Raven: And this is a good point too. Democrats have abandoned labor as a priority at just about every level of government. Some of that is a change in public sentiment away from the utility/necessity of unions in preserving and maintaining the middle class, but very much/most of it is ideological: that labor has no rights over and above the conventionally accepted ‘forces of the market’.

  26. 26
    Stillwater says:

    @BTD: The ruling codified it at the constitutional level, right? That seems like pushing it.

  27. 27
    Rihilism says:

    @Fargus:

    Whether that’s true is another question, but simply noting that the project has been in the works for a while isn’t dispositive.

    Thank you. I’m utterly confused as to why “in the works since 2006” implies “nothing to see here”.

    When I was working for a consulting firm in Iowa, we were tangentially involved (civil design, utilities, etc.) in a municipal project to build a rainforest (think theme park) in a nearby town. “Taxpayer money to build a rainforest? In Iowa? Sounds absurd.”, you say? Well of course it was. Yet at least three years of design, planning and taxpayer expenditures were involved before the town finally balked at what was quite clearly a very expensive monorail. As soon as the city hesitated, the developer immediately began talks with other nearby municipalities in, IMHO, an obvious attempt to play the towns against each other (“Those people down in Ogdenville clearly don’t know what they’re missing, but you, good people of Springfield…). To their credit, the nearby towns balked also.

    Goodness knows what would have happened if the developer had only needed to convince one person what an “economic boom” this project would provide…

  28. 28
    BTD says:

    @Stillwater:

    Wrong. It followed established precedent.

    It followed EXISTING Constitutional law. Correct constitutional law imo. Obviously a lot of people’s mileage varies on that point.

    But I just wanted to correct the widely spread lie that Kelo changed anything. It did not.

  29. 29
    Stillwater says:

    @BTD: Established, but contested, precedent. There were clearly disputes, or the case wouldn’t have risen to the SC on appeal. And the grounds of the dispute were uncertain, or the SC wouldn’t have taken the case.

  30. 30
    Rihilism says:

    @Original Lee: Really? That is very unfortunate. Well, they may have given up their newly cleaned park, but I’m sure the good folk in Benton Harbor will be pleased when the cash starts rolling in…

  31. 31
    Murc says:

    I personally view this as having both practical impact that is lesser than Kelo did, and being far more legitimate than Kelo was, depending on Michigan’s State Constitution.

    Kelo basically gutted what was supposed to be a major check on state power against private citizens, especially powerless ones (its a lot like recent 4th Amendment jurisprudence that way) by essentially removing any possibility of judicial redress for legislative taking run amock. This was both wrong, AND it was, in my opinion, illegitimate; it stabs at the very heart of the restrictions on eminent domain established in the Constitution.

    Benton Harbour, on the other hand, was merely (and yes, I’m making that ‘merely’ do an awful lot of work) wrong. As I understand things, the Constitution only guarantees us a republican form of government at the STATE level. It is then up to states to write their own constitutions that further establish how their own political subdivisions are run. A state could, theoretically, completely abolish all counties, cities, and townships within its borders and run everything out of the state capital; you’d have a state representative and governor as your ‘local’ representatives and that would be it.

    If the Michigan State Constitution doesn’t disallow the state lege and the Governor from pulling this shit, then the new emergency management laws are stupid, and wrong, but not fundamentally illegitimate in my eyes the way Kelo is. They also don’t apply nationwide.

  32. 32
    Hermione Granger-Weasley says:

    @Stillwater:

    most of it is ideological: that labor has no rights over and above the conventionally accepted ‘forces of the market’.

    libertarianism.
    Do you think liberals are hostile to organized labor like Freddie claims?

  33. 33
    Stillwater says:

    @Hermione Granger-Weasley: Many liberals, yes. The left broadly understood, yes. Democrats in elected offices, yes.

  34. 34
    BTD says:

    @Murc:

    You’re wrong when you write:

    Kelo basically gutted what was supposed to be a major check on state power against private citizens, especially powerless ones (its a lot like recent 4th Amendment jurisprudence that way) by essentially removing any possibility of judicial redress for legislative taking run amock. This was both wrong, AND it was, in my opinion, illegitimate; it stabs at the very heart of the restrictions on eminent domain established in the Constitution.

    First Merman was decided in 1954 and Midkiff was decided in 1984. Kelo merely followed those cases. Period. Kelo “gutted” nothing.

    Second, the text of the Fifth Amendment Takings Clause states “nor shall private property be taken for public use, without just compensation.” The protection part is the “just compensation,” not the “public use” part.

    IF your property is taken for a highway or a courthouse or a Wal-Mart, it is still taken from you. The protection afforded is that you get just compensation.

    Third, legislative takings will run amok if people vote for legislatures that engage in takings run amok. There was nothing in the judicial process stopping it before Kelo. Surely you do not think things are WORSE in this area after Kelo than before do you?

    Indeed, they are clearly BETTER because many states enacted laws restricting state takings.

    In short, Kelo proved yet again that the best defense against tyranny and corruption is an active informed citizenry.

  35. 35
    BTD says:

    @Stillwater:

    Contested in the Kelo case because conservatives wanted it to be, just like they contest Roe and Griswold and First Amendment cases.

    Look, you disagree with Kelo. I get that. Conservatives disagree with Miranda and they disagree with Won Kim Ark.

    Given the right circumstances, cases challenging them will get to the SCOTUS regarding the issues decided in those cases again.

    “Contested” is a meaningless word in this context. To state that Kelo created something new is simply false.

  36. 36
    Chris says:

    @Hermione Granger-Weasley:

    They all came up through the LoOG and they all used to comment at Culture 11 when I first met them (not Kuznicki).

    Somebody help me out here: what’s this “LoOG” term that she uses over and over and over again?

  37. 37
    Hermione Granger-Weasley says:

    Ask and Ye Shall Receive

    Did you, like, ax for a steaming pile of glibertarian bulshytt, Cole?
    Because that is what you got.

  38. 38
    Hermione Granger-Weasley says:

    @Stillwater:

    Many liberals, yes. The left broadly understood, yes

    wow. strange hypothesis.
    I think Kay and the democrats in WI support organized labor.
    I support organized labor.
    I betcha if we poll the juicers they support organized labor.
    You know what I allus say.
    Give me data or give me death.

  39. 39
    Hermione Granger-Weasley says:

    @Chris: League of Ordinary Gentlemen.
    A wretched hive of christianist/glibertarian scum and villiany.

  40. 40
    Stillwater says:

    @BTD:

    The relevant constitutional principle is this: nor shall private property be taken for public use, without just compensation

    My reading of this is that the government has the right to take property for public use only if it justly compensates the taking’s owner. The provision is restricted to takings for the use of government in the provision of public goods. There is nothing in that provision that permits government to takings for the purpose of ‘private good’.

    Here’s the question: 1) Did the prior rulings you cited codify an interpretation of the fifth amend. clause so as to permit government takings for private, ie., not public, use? 2) Does Kelo interpret the clause to permit just these types of takings for private, non-public, use?

    ETA: I should add that obviously ‘public use’ does lots of work here. On a normal reading, given context, the meaning of public use would seem to be land or resources held by the public, that is, by the government.

  41. 41
    Stillwater says:

    @Hermione Granger-Weasley: Jesus Christ you’re a nuisance. You asked me my opinion, I gave my answer. Go read a fucking book.

  42. 42
    BTD says:

    @Stillwater:

    Kelo follows Berman and Midkiff exactly.

    If Kelo was wrongly decided, then so were Berman and Midkiff.

    Also, FTR, the Fifth Amendment Takings Clause did NOT apply to the States until the incorporation doctrine was adopted by the SCOTUS after passage of the 14th Amendment.

  43. 43
    Rihilism says:

    @Hermione Granger-Weasley:

    wow. strange hypothesis.

    Not really. I not only support unions, I think organized labor is the only way to achieve social/economic justice in our current political climate. However, my friends, whose political views are easily classified as socialist, still hem and haw when it comes to unions. At best, you can get them to admit that unions are a “necessary evil”. I don’t understand their views on this but I think it prolly has something to do with Stockholm syndrome…

  44. 44
    les says:

    Unusually, I’m with BTD. Isn’t Kelo in fact what libertarians want? It said that “public use” is a local, not a federal, decision.

  45. 45
    Hermione Granger-Weasley says:

    @Stillwater: liar liar pants on fire.
    give me the data or retract your statement, bulshytt talker.

  46. 46
    Stillwater says:

    @BTD: I get that. The question I have is whether rulings on any of these cases extended the concept of takings to include those done for private, non-public, use.

  47. 47
    les says:

    @Stillwater:

    Kelo says, it seems to me, that a local jurisdiction can decide that economic development is a permissible public use; it doesn’t force any jurisdiction to make that decision. The transfer of public land to private hands is hardly new or unusual–railroads, utilities, on and on.

  48. 48
    BTD says:

    @Stillwater:

    I answered that. They do. Both Berman and Midkiff involved takings where property was used by private entities.

  49. 49
    Stillwater says:

    @BTD: Ahh, good. I missed that.

  50. 50
    BTD says:

    To put it in the Court’s own words:

    The starting point for our analysis of the Act’s constitutionality is the Court’s decision in Berman v. Parker, 348 U. S. 26 (1954). In Berman, the Court held constitutional the District of Columbia Redevelopment Act of 1945. That Act provided both for the comprehensive use of the eminent domain power to redevelop slum areas and for the possible sale or lease of the condemned lands to private interests. In discussing whether the takings authorized by that Act were for a “public use,” id. at 348 U. S. 31, the Court stated:

    “We deal, in other words, with what traditionally has been known as the police power. An attempt to define its reach or trace its outer limits is fruitless, for each case must turn on its own facts. The definition is essentially the product of legislative determinations addressed to the purposes of government, purposes neither abstractly nor historically capable of complete definition. Subject to specific constitutional limitations, when the legislature has spoken, the public interest has been declared in terms well-nigh conclusive. In such cases, the legislature, not the judiciary, is the main guardian of the public needs to be served by social legislation, whether it

    Page 467 U. S. 240

    be Congress legislating concerning the District of Columbia . . . or the States legislating concerning local affairs. . . . This principle admits of no exception merely because the power of eminent domain is involved. . . .”

    Id. at 348 U. S. 32 (citations omitted). The Court explicitly recognized the breadth of the principle it was announcing, noting:

    “Once the object is within the authority of Congress, the right to realize it through the exercise of eminent domain is clear. For the power of eminent domain is merely the means to the end. . . . Once the object is within the authority of Congress, the means by which it will be attained is also for Congress to determine. Here one of the means chosen is the use of private enterprise for redevelopment of the area. Appellants argue that this makes the project a taking from one businessman for the benefit of another businessman. But the means of executing the project are for Congress and Congress alone to determine, once the public purpose has been established.”

    Id. at 348 U. S. 33. The “public use” requirement is thus coterminous with the scope of a sovereign’s police powers.

    Ironically, this opinion, Midkiff, was written by Justice O’Connor who somehow dissented in Kelo in direct contravention of her own decision. Bizarre.

  51. 51
    Stillwater says:

    @les: a local jurisdiction can decide that economic development is a permissible public use

    Sorry for so many questions here, I’m confuzzled.) So in your view, the importance of the ruling was to merely affirm/reaffirm that states and local governments have the same broad powers that the federal government has re: takings. Is that right?

  52. 52
    Commenting at Balloon Juice since 1937 says:

    Even if I were a very hard-left liberal, I think I’d still maybe want an emergency financial manager, at least to uncover the fraud

    You know, because hard left liberals are usually morally bankrupt – or something. I knew libertarians had the political maturity of 13 year olds, apparently they have the social maturity to match it.

  53. 53
    Stillwater says:

    @BTD: Thanks, BTD. I agree with your earlier comment. I should’ve done a little more reading on this before forming a judgment.

  54. 54
    BTD says:

    @Stillwater:

    It was quite the controversy at daily kos in 2005 and I wrote about it to much dismay.

  55. 55
    feebog says:

    It seems to me that many are missing the point here. There was already a law in place to put an “Emergency Manager” in place if a municipality was in trouble. And that is exactly what the former Democratic Governer did. The question we should be asking is why was it necessary at all to put a new draconian law in effect. Given the obvious cronyism involved in the appointment of the new “Emergency Manager” it seems obvious to me; to grease the wheels, get the Harbor Shores projct in place and screw the town and people of Benton Harbor.

  56. 56
    Mark S. says:

    @BTD:

    We deal, in other words, with what traditionally has been known as the police power. An attempt to define its reach or trace its outer limits is fruitless . . . Subject to specific constitutional limitations, when the legislature has spoken, the public interest has been declared in terms well-nigh conclusive.

    I think the problem is there’s virtually no limit to this. “Hey, building a box store on your property would bring more economic development than your house, so we’re taking your property.”

  57. 57
    Hermione Granger-Weasley says:

    @Commenting at Balloon Juice since 1937:

    You know, because hard left liberals are usually morally bankrupt – or something.

    No its because hard-left liberals don’t understand the SuperAwesome Power of the Market, unlike our Brilliant Libertarian Crypto-conservative Freemarket Priesthood.

  58. 58
    les says:

    @Stillwater:
    Seems so to me; and that the power to make the determination is at the local level. Seems all states’ rightsy to me.

  59. 59
    Hermione Granger-Weasley says:

    @Mark S.: no Mark, its Holy Libertarianism in action.
    Didn’t you read the linked post?
    The Libertarian Apostles Creed

    Modern economic experience demonstrates overwhelmingly that the free market is a powerful engine of economic prosperity. Nations the world over are clamoring to shed the chains of central planning and unleash the creative energy of free men and women. The principles of the American Revolution — individual liberty, limited government, the free market and the rule of law — have become the dominant paradigm of enlightened society.

  60. 60
    tomvox1 says:

    @BTD:

    Might be splitting nits here but how is Kelo not “pushing” precedent when:

    In Berman:

    The Supreme Court unanimously decided in favor of the Planning Commission by arguing that the problem of large-scale blight needed to be addressed with a large-scale integrated redevelopment plan.

    And in Hawaii:

    Hawaii’s act to regulate the oligopoly was seen as a classic exercise of the State’s police powers, and a comprehensive and rational approach to identifying and correcting market failure</b< and satisfied the public use doctrine.

    And we wind up with this in Kelo:

    The court held that if an economic project creates new jobs, increases tax and other city revenues, and revitalizes a depressed urban area (even if not blighted), then the project qualifies as a public use.

    Thanks sounds like a broader definition of eminent domain than had been agreed upon prior, at least as regards Berman and maybe Hawaii too, although I can see the logical trend line from one case to the next. If it wasn’t a broadening of the definition of eminent domain, i.e. a new precendant, why did it make it all the way to the Supreme Court and why was the vote 5-4? And why did Kennedy feel such a strong need to espouse upon the concept of “minimum scrutiny?”

  61. 61
    mds says:

    @les:

    Isn’t Kelo in fact what libertarians want? It said that “public use” is a local, not a federal, decision.

    Indeed, that’s what’s missing in all the right-schmibertarian squealing about the supposed overreach of Kelo. The interpretation of “public use” as “advancing the public interest,” as well as allowing state and local governments broad leeway in interpreting same, goes all the way back to Boston and Roxbury Mill Corp. v. Newman in 1832. Connecticut could have avoided the whole mess by putting some legislative limits on “public use,” as other states have done. Yet its the SCOTUS majority that hewed closely to almost two centuries of precedent, and declined to make law for New London and Connecticut, that engaged in “judicial activism”?

  62. 62
    Chris says:

    @Commenting at Balloon Juice since 1937:

    You know, because hard left liberals are usually morally bankrupt – or something. I knew libertarians had the political maturity of 13 year olds, apparently they have the social maturity to match it.

    Reference to the Tammany Hall/Chicago Machine era, which Republicans have milked for all it’s worth to mean that the Dems are the party of corruption. (Never mind the nationwide Republican machine from the same era – and, as others here have pointed out, the problem with Tammany Hall was in large part that it let the immigrants have their share of the corruption instead of keeping it in the family).

  63. 63
    Luke says:

    John,

    notice the quality of the discussion on this post is head and shoulders above the comments on your post “the-libertarian-response-to-this”? (sans H G-W of course)

    I’ll leave it to you to draw your own conclusions on why that is.

  64. 64
    Hermione Granger-Weasley says:

    @Luke: dude, I just pointed out that american libertarianism is founded on an entirely false premise and Kuznicki’s post is actually just another steaming pile of glibertarian bulshytt.

    Debate me on content or go back to nit picking Kelo.

  65. 65
    BTD says:

    @tomvox1:

    I suggest you reread both Berman and Midkiff. From Midkiff:

    The “public use” requirement is thus coterminous with the scope of a sovereign’s police powers.

    There is, of course, a role for courts to play in reviewing a legislature’s judgment of what constitutes a public use, even when the eminent domain power is equated with the police power. But the Court in Berman made clear that it is “an extremely narrow” one. Id., at 32. The Court in Berman cited with approval the Court’s decision in Old Dominion Co. v. United States, 269 U.S. 55, 66 (1925), which held that deference to the legislature’s “public use” determination is required “until it is shown to involve an impossibility.” The Berman Court also cited to United States ex rel. TVA v. Welch, 327 U.S. 546, 552 (1946), which emphasized that “[a]ny departure from this judicial restraint would result in courts deciding on what is and is not a governmental function and in their invalidating legislation on the basis of their view on that question at the moment of decision, a practice which has proved impracticable in other fields.” In short, the Court has made clear that it will not substitute its judgment for a legislature’s judgment as to what constitutes a public use “unless the use be palpably without reasonable foundation.” United States v. Gettysburg Electric R. Co., 160 U.S. 668, 680 (1896).

    My emphasis.

  66. 66
    Hermione Granger-Weasley says:

    @Chris: still at it.
    Have you forgotten Malkins book? The Culture of Corruption?

  67. 67
    Stillwater says:

    @tomvox1: That was my initial thought as well (granted, you’ve stated it much more clearly). It’s the broadening of the sufficient conditions for a just taking that separates Kelo from prior rulings.

    Again, I’m not sure this is a cause for alarm, but if your view is right it certainly explains why some people are pissed off about it.

  68. 68
    BTD says:

    @Mark S.:

    True enough. That is the problem with government.

    If you are a libertarian, I imagine you wish the government did not have such power. And yet, the Constitution provides the federal government with that power (indeed it can make you buy health insurance HORRRORS!) and no one can possibly question that a State has that power, or did at the time of the ratification of the Constitution.

    Indeed, as I stated before, prior to the passage of the 14th Amendment and the adoption of the incorporation clause by the SCOTUS, States had the power to simply take your property and not give you a dime for it.

  69. 69
    BTD says:

    @Stillwater:

    It did not broaden the power. It simply did not.

    The next Court decision can decide that the taking it is deciding is different for whatever reason and thus not a public use.

    The RULE has not changed at all.

    The people n the Court applying the rule change, but the rule remains the same.

    If Kelo was decided differently on the limited facts, the rule would still be the same.

    I ask that you read O’Connor’s dissent in Kelo and see if it gives you any comfort.

  70. 70
    John Cole says:

    notice the quality of the discussion on this post is head and shoulders above the comments on your post “the-libertarian-response-to-this”? (sans H G-W of course)

    Maybe because there is something to discuss. Prior to the earlier post, there was no libertarian response.

  71. 71
    Brandon says:

    I loved all of the caveats at the beginning. The contortions that conservatives go through in order to criticize their own is mind blowing. The only thing remarkable about this is that a conservative is criticizing other conservatives at all. The fact that this is significant about something says a lot about the current state of our politics.

  72. 72
    Stillwater says:

    @BTD: I stated that poorly. I’m with you brother (on this anyway). But I’m still keeping a toe dipped in the water outside the boat. Eg: Why did the SC take the case if it only reaffirms existing law? They coulda just denied the appeal. Or did the lower courts rule against precedent?

  73. 73
    Stillwater says:

    @Brandon: The fact that this is significant about something says a lot about the current state of our politics.

    But a step in the right direction, yes? Give Jason some props here – he admitted not only that a libertarian group was advocating against libertarian principles, but he admitted that admitting it was hard for him.

  74. 74
    Just Some Fuckhead says:

    God, it was so much easier being a libertarian back when all we cared about was getting high. This land rights shit is hard.

  75. 75
    Ana Gama says:

    The state legislator who wrote the EMF legislation here in Michigan represents Benton Harbor, and stands to reap financially from the take-over. There is now a recall petition being taken up against him.

    http://networkedblogs.com/gWekj

  76. 76
    Hermione Granger-Weasley says:

    @Just Some Fuckhead:

    This land rights shit is hard.

    What about the fake-freemarket? Isnt the freemarket one of the core principles of ALL American soi disant libertarians? and doesnt the market drive property rights anyways?

  77. 77
    Stillwater says:

    @Stillwater: Btw, here’s what I think, fully admitting that I know nothing about the law or how it works or even how to follow many of them:

    The SC took the case to make explicit that economic gain in the form of tax revenue constitutes a sufficient justification for private property transfers for the public good. Such a justification, insofar as it’s the legislature requesting authority for the taking, was entailed by prior rulings, but not explicitly expressed. This ruling makes those implied powers clear. I would say this isn’t an extension in principle of governmental powers, but it’s an extension in practice, since the legality of doing so is now settled.

    How this pertains to Michigan, where the Governor is potentially unilaterally engaging in takings is another question.

  78. 78
    BTD says:

    @Stillwater:

    The cert was granted due almost certainly to the dissenters. I disagree with your view on that.

  79. 79
    The Raven says:

    Me: “libertarians.”

    @Stillwater: Don’t understand the scare quotes here.

    Because they seem to have less and less to do with anything most people recognize as liberty. They made a good argument, but when they come down to it, it is all about “defence of the rich against the poor, or of those who have some property against those who have none at all.” Even their economics, which had many knowledgeable intellectuals developing and defending it, has turned out to be invalid, and without monetarist macroeconomics and the various claimed democratic effects of unregulated wealth, their policy arguments become the defense of aristocracy rather than democracy.

  80. 80
    The Raven says:

    @Hermione Granger-Weasley:

    My point is these libertarians, neoliberals, liberal-tarians, glibertarians, po-mo conservatives, crpto-conservatives, classic liberals… all blame the Dems FIRST. […] It is the naked attempt to spread the blame around, the both-sides-do-it meme.

    Oh, I see. Yes, that’s true of course. (It’s called a false equivalence or false symmetry, btw.) I was making a somewhat different point, which is to say that the Democrats have their own conservative faction, and it is powerful. If one argues as though only the Republicans are conservatives, libertarian opponents will trip you every time.

    I also really wish the Taft-Hartley act would be repealed and replaced with something more truly democratic in intent. If it were not law, the unions would be stronger in the face of a right-wing power grab.

  81. 81
    Hermione Granger-Weasley says:

    @The Raven:

    Even their economics, which had many knowledgeable intellectuals developing and defending it, has turned out to be invalid

    YES! Instead of nitpicking Kelo, can’t we discuss how libertarianism is now, like conservatism, an empty purse that CANNOT empirically deliver on its promises?
    Because the basic premise of libertarianism is that freemarket capitalism improves the human condition through individual freedom/liberty in the market.
    This is EMPIRICALLY false in contemporary America.

    And if the EE people are correct, that premise is GLOBALLY FALSE as well.

  82. 82
    Hermione Granger-Weasley says:

    @The Raven: yes. I agree that there is a democratic conservative faction. The distribution of political affinity is gaussian, not binary.
    My complaint is that both Freddie and Kuznicki (in the linked posts) frame the lede with the liberals as bad actors in the first paragraph, and bury the libertarians as bad actors on the back page.

  83. 83
    Stillwater says:

    Because the basic premise of libertarianism is that freemarket capitalism improves the human condition through individual freedom/liberty in the market.

    Completely, categorically, nonsensically, embarrassingly untrue.

    Sinner! Repent! Educate thyself!

  84. 84
    Hermione Granger-Weasley says:

    @Chris: Malkin today.

  85. 85
    Hermione Granger-Weasley says:

    @Stillwater: ok. tell me what the premise is then.
    debate me on substance.
    Skool meh.
    Define libertarian economics.

  86. 86
    Hermione Granger-Weasley says:

    @The Raven:

    I also really wish the Taft-Hartley act would be repealed and replaced with something more truly democratic in intent.

    I don’t relly know anything about Taft Hartley. I only became interested in economics recently, and I have mostly learned from commenters on this blog.
    ;)

  87. 87
    Just Some Fuckhead says:

    @Hermione Granger-Weasley:

    What about the fake-freemarket? Isnt the freemarket one of the core principles of ALL American soi disant libertarians? and doesnt the market drive property rights anyways?

    No idea. I’m high.

  88. 88
    Stillwater says:

    @Hermione Granger-Weasley:

    I don’t relly know anything about Taft Hartley.

    Educate Thyself!

  89. 89
    Hermione Granger-Weasley says:

    @Stillwater: I want to learn about libertarianism first.
    Can someone tell me what contemporary american libertarianism is?

  90. 90
    Just Some Fuckhead says:

    @Hermione Granger-Weasley:

    Can someone tell me what contemporary american libertarianism is?

    Near as I can tell, it’s the secular wing of the Republican party.

  91. 91
    rea says:

    The state legislator who wrote the EMF legislation here in Michigan represents Benton Harbor, and stands to reap financially from the take-over

    The new EMF legislation is not primarily aimed at Benton Harbor–that’s just gravy. The real target is Detroit.

  92. 92
    Libby says:

    Don’t have time to read the thread or summarize the points, but urge everyone to read Eclectablog. He’s done some yeoman’s work on the golf course connection. Very interesting links between Lansing, Whirlpool heirs and another golf course that links to the same politicians and rich people.

  93. 93
    Arclite says:

    Great article by Kuznicki.

  94. 94
    Hermione Granger-Weasley says:

    @Arclite: except for the steaming pile of glibertarian bulshytt part, amirite?

  95. 95
    Arclite says:

    @Hermione Granger-Weasley: Well, yeah, I meant in the research that was done to explain exactly what had happened in that situation.

  96. 96
    Hermione Granger-Weasley says:

    @Arclite: I agree with that.
    ;)
    Do you know what the definition of libertarianism is, perchance?
    I feel like the Elephants Child.

  97. 97

    @Stillwater:

    Democrats have abandoned labor as a priority at just about every level of government.

    I think that if you take a look back through history, you’ll see that rank and file union members in large part abandoned the Democrats starting in 1980. Do the terms “Reagan Democrats” and “Macomb County” ring any bells?

  98. 98

    @The Raven:

    Andy Kroll wrote a very nice article on this takeover for Mother Jones; it is here. The Michigan advocates of this law were funded by the usual suspects: the Koch Foundation, the DeVos Foundation, the Prince Foundation (parents of Erik, of Blackwater), Walton Family Foundation (Wal-Mart.)

    I should point out that Dick DeVos’ wife’s maiden name is Prince. Betsy Prince DeVos is Erik’s big sister.

  99. 99

    @The Raven:

    …their policy arguments become the defense of aristocracy rather than democracy.

    This.

    ETA: And it shows. The Kochs, DeVoses and aptly named Princes are all heirs to fortunes.

  100. 100
    The Raven says:

    @Hermione Granger-Weasley: “The distribution of political affinity is gaussian, not binary.”

    The conservative and liberal factions within the Democratic Party’s elected officials are not a matter of statistical distribution but of internal party organization; the voters hold one set of views and the various factions within the party’s legislative delegations respond to these in various ways. I don’t have time to write about it now, but take a look here. That particular post was written during the process of passing the health care bill, and I am “pleased” (if one can be pleased at a loss) to see that I correctly called the electoral outcome.

  101. 101
    The Raven says:

    @Temporarily Max McGee (soon enough to be Andy K again): Thank you. How many people, do you think, are actually in on this? Is it just the Kochs, Princes, and DeVoses, or are there are few more?

  102. 102
    The Raven says:

    @Hermione Granger-Weasley: “Do you know what the definition of libertarianism is, perchance?”

    There is no fixed definition; “libertarianism,” more-or-less, is geometric mean of what libertarians believe. The term started out as meaning socialist anarchist (really! look it up!) but has ended up (in US politics) meaning a collection of generally conservative policies, as well as some specific economic beliefs that are now largely discredited.

  103. 103
    Hermione Granger-Weasley says:

    @The Raven: shukran. Corvids are hawt.

    But will no one quench my thirst for knowledge?

    What is libertarianism in contemporary America?
    What does it mean?

  104. 104
    Stillwater says:

    Do you know how to Google? Have you heard of wikipedia? Put in some effort, and

    Educate Thyself!

    Edit: Btw, it’s just fucking hilarious, and something you ought but certainly won’t feel great shame about, that you don’t have any fucking clue what a libertarian is, or what the free-market is, yet you incessantly monobotically repeat these words as if they had meaning for you!

  105. 105
    Hermione Granger-Weasley says:

    @Stillwater: i want you to tell me stil.
    pretty please?
    Or Jason could.
    cuz he’s a libertarian, right?

  106. 106
    Hermione Granger-Weasley says:

    @Stillwater: and Brother Mandramas ‘splained the Free Market to me.

    Free market, as any concept in social science, is not unequivocally determined. As a mental experiment, calibrate your free market meter as 1 (perfect absolute free market) in a hypothetical world where all the goods can be produced in 0 time, no cost are incurred in transactions or traveling, you can check instantly and perfectly true all the prices of a good in a infinite array of sellers, there are no taxes, there are no government, there are a infinite number of buyers with perfect intelligence that always choose the best offers. And nobody ever changes prices since it could cause a prices run, etc.
    Calibrate your free market meter as 0 in a hypothetical world where there are no money, no choices, no private ownership, all the citizen have exactly the same rights and duties (or equivalents ones) and all the choices are made in a distributed government like structure where all the citizens can contribute in equal capacity.
    In a sense, both are ideal condition that can’t be reached due to the current status of technology (arguably, those worlds can be reached in a utopic post scarcity society, like Star Trek or the Culture).
    A perfect keynesian world probably is reached nearly 0.6 o 0.7. A Cuban style of communism probably is near 0.3. This is not a utopic scale side.
    An interesting point is that a Galtian nightmare world is not more near to Free Market 1 that a keynesian economy, since oligopolies, heavy defense budgets, oil wars, cheap enslaved labor, etc, are not features of the utopic free market 1.

    But no one will explain libertarianism.
    /sadface

    why….its almost like people are afraid!

  107. 107
    Hermione Granger-Weasley says:

    @The Raven: yeah…the third leg of the conservative stool.
    so….it can mean anything.
    But doesnt it require some sort of basal allegiance to The Market?

  108. 108

    @The Raven:

    Is it just the Kochs, Princes, and DeVoses, or are there are few more?

    Oh, it’s definitely a few more, but the DeVoses are HUGE players in the GOP, at the local level here in West Michigan as well as at the state and national levels. They’re usually in the top 5 donors to GOP campaigns…Then you throw in the “non-partisan” issues in which they’re involved…They’re real control freaks. They like to think of it as “stewardship”.

  109. 109
    Hermione Granger-Weasley says:

    So Cole.
    Am I the bratty kid that just basically pointed out that these preening assclowns are all NAKED?
    The next time someone tells me they are a “libertarian” I’m going to laff in their face.
    /laughs in Kuznickis face
    ;)

  110. 110
    Hermione Granger-Weasley says:

    @Stillwater:

    as if they had meaning for you!

    I think “libertarian” has no meaning anymore for anyone.
    I think the entire parade of preening self-important assclowns is FUCKING NAKED.
    Pardon me for drawing that to your attention, juicers.

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