The Ominous Spectre of Condemnation Power

I was honestly going to get up this morning and write about Fieldston. But Tohan and I have been chatting on this blog, http://tohan.blogspot.com/, and he raised a couple of points regarding similarities between my comments on eminent domain precedent and those made by AnonymousLiberal on his blog. I wrote a lengthy response to Tohan (no, Andrew, not you?!!), and I think it merits its own post here. Anyway, I'm going to offer Tohan's comments, and then mine:

Tohan: "You have to admit Andrew that when it comes to the Supreme Court ,precedent issue , he uses the same arguments you do.Reading YOUR blogs re.ED is a little bit like going to a concert anticipating all the fun you'll have... and sometime in the middle of it you hear a false note.... I never said that the liberal justices are stupid,or they do not know the law,what I am saying is their place is in Leningrad,not here. The only difference betwen them and the real Communists is..the later knew what they were doing.Take it from a guy who spent 30 years beyond the iron courtain. "

My response:

The difference between AnonLib and me, is that he talks about the reliance on precedent, sees that the court follows precedent, is satisfied, and leaves it there.

On the other hand, I talk about precedent as a starting point - as one of the reasons _why_ Kelo happened - to set the record straight and to make sure that there are no illusions about just what it did.

But I don't leave it there. I say that reliance on precedent is [in cases like Kelo] an excuse - a dodge, an abdication of real responsibility. That true leadership, that the right thing, in this case (and in a whole host of issues on property rights), is to recognize that somewhere along the line of precedent the law took a sharp turn to the left and that justice and equity (not to mention the Constitution) demand that the high court put a stop to it.

Tohan, I got a degree in Soviet Studies because I wanted to fight the evil injustices of state-based socialism. But as I was earning my degree, the wall fell and the Soviet Union disappeared up its own orifice. I come to this issue with an understanding of just what the war on property rights did to the millions of people trapped under the yoke of marxist-leninism during the 70+ year Eastern European lunacy.

In fact - the failure of communism (or, more accurately, big-state socialism) leaves us with an important lesson when it comes to Supreme Court caselaw. Many people around the world thought that there was a certain inevitability in the east-west conflict, that having a socialist world and a capitalist world would just be the way it was for the foreseeable future - and that challenging the Iron Curtain nations was, as the Russians would but it, nekulturny.

But a few courageous people recognized that this paradigm was wrong - they knew that socialism was evil, and that evil must be opposed. They did everything in their power to hasten its demise - in the end, they were right, and it worked.

So it is with the war on property rights here in this country (or the war _for_ property rigts). There are those, like those people who excuse Kelo as being merely precedential, who are willing to accept the status quo. These are people who fail to recognize the primacy of property rights in relation to all other civil rights, as well as the importance those rights bear in relation to political stability and economoc prosperity (read the works of sovietologist Richard Pipes [ie, Property and Freedom] and Hernando DeSoto [The Mystery of Capital] for discussions on this point).

These are, for the most part, the same people who argued for detente with the Soviets and stood foursquare against any and all attempts to challenge that status quo, or their philosophical successors (the people who weren't old enough to make jokes about Reagan while he was President, but who view him with the same derision that his opponents did while he was in office).

On the other hand, there are those who recognize that central to the evils of soviet-style marxist-leninism (and its more intense, and therefore unjust and horrible flavors, stalinism and maoism) was this inherent antipathy towards property rights. Marx summed up communism as the abolition of property rights, and by wiping those rights away set the stage for a parade of horrific acts.

Denying property rights in this nation similarly sets the stage for grave injustice - manifested in the ability of a government to confiscate a parcel of property under the guise of economic redevelopment. The founders didn't refer to the power of condemnation as the "despot's power" for nothing - it is apt for abuse.

Is anyone willing to step up and say that in the thousands of instances of Kelo-style condemnation that have occurred in America, that there hasn't been a single taking that was down out of retaliation by one politician against one of his or her political enemies?

- Andrew Langer