As I mentioned in my previous post on the subject, Barack Obama has expressed at least rhetorically strong support for constitutional property rights. On the other hand, it is striking that - as far as I know - Obama has never said anything about the Supreme Court's decision in Kelo v. City of New London, by far the best known and most widely criticized of the Court's recent property rights decisions. Obama's apparent silence is all the more notable in light of the fact that the decision was harshly criticized by numerous other liberal politicians and activists, including Bill Clinton, Ralph Nader, Maxine Waters, and Howard Dean (See Part I of this article for the relevant cites). Many African-American leaders were particularly critical, because as the NAACP emphasized in its excellent amicus brief in the case, "blight" and "economic development" takings often target the property of the minority poor.
If Obama has indeed been silent on Kelo, that may be an indication that his true level of support for constitutional property rights is actually quite weak. After all, if he's not willing to oppose an anti-property rights decision widely reviled by other liberals, it's doubtful that he would ever support property rights in other, more controversial contexts. Silence could even indicate that he actually agrees with the Court's decision but does not want to say so for fear of angering public opinion.
My searches of the Westlaw and Lexis databases, as well as Obama's campaign website, don't reveal any statements on Kelo one way or the other. However, it's possible that I have missed something in my research. If any of our readers have spotted an Obama statement on Kelo that I might have overlooked, please let me know.
Related Posts (on one page):
- Why Obama's Position on Kelo Matters - Even if he Doesn't Have One:
- Barack Obama and Constitutional Property Rights II - Obama's Apparent Silence about Kelo:
- Barack Obama and Constitutional Property Rights:
Gee, I can't imagine why he's silent.
The Kelo rule at least lets many government policies get enacted by private parties. If the government's ability to essentially delegate redevelopment duties to private parties were destroyed, guess what would take their place: government bureaucrats. Is that really preferable?
There is not a sucessful politician alive in this country who opposes a taxation system whereby the wealthy pay more than the poor. Thus, every politician in America wants to "spread the wealth around". Why do you single out Obama for saying what everybody believes in?
On a related point, Ilya is notoriously silent on the practice of putting babies on pitchforks. I'll take his silence as approval.
This is a fun game.
(to use the old canard)
Guh?
Your "everybody" == "successful politician" line is amusing, but very wrong.
Socialism grows government power.
Either he thinks that's a good campaign tool or he thinks it's a good governing rule.
Oh, but the old canard "I like politicians that tell me they're going to rape me and don't lie about it" is what really matters. After all, government in all things is so important that we simply can't afford to reduce its progressive policies.
Paying more doesn't mean that the wealth is "spread around" unless the payments are directed into welfare or other grants. Just because you pay more doesn't mean it's being spread. Taxation does not equal support for welfare.
Furthermore, many politicians support various forms of the flat tax or a nationwide sales tax, or something other than an income tax.
Finally, Obama is singled out because he doesn't want to tax people to raise revenues. He in the Democratic debates that even if lowering taxes raised revenues, he wouldn't do it because people who earn more should pay more. Thus, he wants to punish success, like all envy-driven marxists.
There are very few politicians who support increasing taxes even if it lowers revenue. Obama is one of them. Most other Democrats think raising taxes raises revenue. Obama doesn't care. He wants to punish people and spread the wealth around. He's Wesley Mouch.
<<<
It was Souter. I believe they didn't get enough votes to do it. Too bad.
p.s.
I love one of the screen names above: "richard cabeza"
Whoever he is, he should run for office.
I don't want to put words in Ilya's mouth, but perhaps he's focusing more on Obama's silence in the direct aftermath of the decision. That was Summer 2005, when Barack was but a sitting senator who, to believe his recent telling, did not even consider running for president for another year plus. He had time if he wanted to fire off a statement.
For all of his idiocy, McCain actually made some hay out of Kelo on the campaign trail. In both the primaries and the general election, he would talk about Kelo as an example of judges gone wild.
Either he thinks that's a good campaign tool or he thinks it's a good governing rule."
Actually, it wasn't part of his campaign.
So if only half pay for it but everybody benefits, then by definition,the wealth is being spread around. This is the default scenario, and it is one that almost nobody this side of Murray Rothbard wants to get rid of, or even change that much. If what Obama said was socialism, then this is already a socialist country.
But it isn't, and neither is Obama. There is, and always has been, plenty of wealth redistribution in America. I know that we don't like to couch the situation in those words, but that's what it is, like it or not. This is exceptionalism in degree, not kind.
Personally, I'd get rid of about 9 federal departments and shrink government by about 90%, paying for it with a modest import duty or sales tax, but my position gains little popular support whenever somebody runs on it.
Have you ever heard of the Tragedy of the Commons? Probably not, but the US tax system, and Barack Obama's publicly stated tax and economic plans are textbook examples of that particular madness.
If the government built a new police station near my house, I undoubtedly received a benefit paid by richer taxpayers, but most people would not say that I got "wealthier." Public goods are not what people would call "wealth."
If the government instead pays me $500 by taking it out of the pockets of someone richer, then most definitely I received wealth and I became wealthier. Same result if I pay no taxes and got a "refundable tax credit."
The key concept in "spreading wealth around" is that people receive 'wealth' from the government. By popular definition, cash is wealth. Fire protection and roads are not. Notice how nobody is complaining about "spreading the benefits of government services around."
He just said it while he was out campaigning.
How many other SCOTUS decisions has Obama been silent on? It would be irresponsible not to speculate about his true position due to that silence. Or, you know, you could write a letter to him and see what kind of response you get.
I read Kelo an had some fairly strong misgivings in the case. However the key question really had to do with what Constitutional constraints are in place when the eminent domain clause is invoked. While I might generally prefer J. Thomas's viewpoint, I think that the court did not widely err by reducing their role slightly. This gave state governments a chance to step up and strengthen their protections for property rights which indeed happened. Many of them have done so.
Me? Having thought about it a great deal, I think that Kelo was probably correctly decided at the time, but that I would support revisiting it if such programs became widespread for the same reason that separate but equal works well for mens' vs womens' restrooms but not where race is concerned. Sometimes one does not want to draw lines to boldly.
The question was based on a false premise. Tax cuts -- at least under the contemporary tax code that exists in the U.S. -- do not raise revenue. It's like asking a politician if there was perpetual world peace would he support cuts in defense spending.
I can see the flood of 1L's...
"Mr. President, please explain Twombly to me..."
Give me a break. Kelo may be the most criticized property decision, but it is certainly the most rationally criticized as a matter of constitutional law? Hardly.
The only thing surprising about Kelo was that it was only decided 5-4. The Fifth Amendment gives extraordinarily broad powers of eminent domain. Government can constitutionally take just about anything as long as it is willing to pay fair market value. The text says that the government can take property "for public use[.]" It doesn't say "for government use." You may not like that as a matter of policy, but it is expressly set forth in the Fifth Amendment.
One reason for the "silence" may be that the democratic response is working. Kelo acknowledged the power that governments have had for centuries, but it did not require governments to use that power. After Kelo, many governments have placed limits on themselves. Also, voters are more aware of improper (but constitutional) uses of the power.
Kelo was rightly decided as a matter of constitutional law. But I also think the democratic response is right as a matter of policy. Win-win.
Professor, you have a lot of interesting and thoughtful property rights positions. I think many are good as a matter of policy, others not so much. But even the good ones are not necessarily protected by the the text of the Constitution. Of course, maybe they're in the penumbra.
1) einhverfr, you are correct, Obama didn’t “talk about increasing welfare payments.” And THAT is the problem. What he talked about is cutting income taxes for people who don’t pay income taxes. Is he a magician? How does he plan to do this? He’s changed the traditional meaning of words to suit his purpose.
True, beneficiaries won’t have to go down to the Welfare Office like in the old days. Instead, they will go to their neighborhood H&R Block, have their tax return prepared and wait for their check.
So what's a good term for a financial means tested direct government payment to individuals? How about “welfare?”
2) Public_Defender, you’re right the text reads “public use” not government use and therein lays the basis for many of these disputes. There’s a difference between “use” and “benefit” – taking property for a new road is for public “use.” Taking a blighted property for private use may provide some public “benefit” but it is a one-off, second order benefit. I think there is a continuum with some examples being more egregious than others. Here are two examples from recent history Detroit:
o City “took” blighted homes for a new auto factory to be owned and operated by General Motors -- a lot like Kelo -- takings for “public benefit.”
o This one was over-the-top! City contemplated “taking” privately owned parking lots in the shadow of the new ballpark, planning to turn them over to the developer for . . . parking lots (this didn’t happen, if I recall correctly, because in the condemnation proceedings, the property owners showed how the offers were inadequate).
This is a fun game."
The "practice of putting babies on pitchforks"? where is the said practice in the US, and was there a significant court case about it?
Many pols have condemned Kelo and Ilya was wondering what Obama's silence means. What Ilya thinks doesn't affect the public; but what Obama thinks may. Can't see the difference?
is it still fun?
to the idiot who asked if Ilya stopped beating his wife,
WTF has that got to do with anything?
Sure they are. When people think of America as a wealthy country, they include the public goods that contribute to that. If Bill Gates moved to Burkina Faso, he wouldn't be anywhere near as wealthy as he is now despite having exactly the same amount of money.
I attended the Convention in Washington, DC, Nov. 20-22, and video recorded some of the sessions. I am uploading them to Google Video and have created a page for them here . I have not finished doing that as this is written, so revisit to get the additions.
At most of these sessions the floor was open to questions from the audience and I took advantage of that opportunity to ask questions that convey messages of interest to libertarian constitutionalists. You will find some of the responses from the panelists revealing.
Many of the sessions were covered by C-SPAN or C-SPAN2 and have been replayed there. Check their archives to view them.
The Federalist Society will also have their own videos of the events online here and
here .
During the campaign, one of Obama's big selling points was his supposed intelligence and good judgment -- why, the man was a Professor of Constitutional Law! So I found it very strange, and quite frustrating, that the journalists covering the campaign and the moderators at the three debates didn't ask him about one of the most controversial Supreme Court cases of the past decade.
Gonzales v. Raich is another decision I'd like Obama's opinion on.
I would say you have it about 100% backwards. Money is not wealth. Being wealthy means that you live a longer, safer, happier life. Being wealthier means that you are able to provide your kids with a good education, live without reasonable fears for your personal safety, be able to take a vacation once or twice a year, not have to put in 6.5 days a week of backbreaking labor. Living in a society of law and order does, in fact, make you very, very wealthy on any scale, so saying that a new police station does not make you wealthier is a particularly bad choice of example.
Confusing money for wealth is a common layman's mistake. Wealth = happiness. Money is a tool that is good only for exchanging for stuff.
Bill Quick: you don't understand the concept of the Tragedy of the Commons. Go back and reread your Hardin. It is about the suboptimal exploitation of a natural resource that is not owned by anybody. It's typically solved by allocating property rights, creating a more optimal allocation. I think we agree that government does too much, and subsequently taxes too much, but we have got to where we are largely because of the public will.
I think you have made a common layman's mistake in logical inference.
o Conventional Wisdom: Money Can't Buy Happiness;
o Barry's Assertion: Wealth Is Happiness;
o Barry's Conclusion: Money Can't be Wealth
But I think it's your assertion that is incorrect.
Consider http://www.merriam-webster.com/dictionary/wealth: "abundance of valuable material possessions or resources."
And consider http://en.wikipedia.org/wiki/List_of_billionaires where these individuals, starting with Warren Buffett are ranked by their net worth in US Dollars. Please take note of the absence of any "Happiness Score!"
Perhaps you attended Lewis Carroll's Humpty Dumpty School of Language where any word can "means just what I choose it to mean - neither more nor less."
Of course, one can contemplate the Wealth of a Nation and, yes, that wealth increases when a bridge or highway or police station is built. It also increases when a private company builds a new plant and a family builds a new home.
My last quibble is over your assertion that money "is good only for exchanging for stuff:"
Money is good for exchanging for services and can even be given away for nothing at all (see Rambam's Ladder http://en.wikipedia.org/wiki/Rambam%27s_Ladder)
SCOTUS nominees do not even weigh in on all SCOTUS decisions, except in the most antiseptic, non-offensive, non-insightful way.
His silence, though, should be unsurprising, as this is the man who is infamous for voting "present." In public, he speaks in empty abstractions and foggy metaphors -- all of which are intended to bypass the listener's rational faculty and pull at one's emotions. His desire for power lust should be apparent to anyone who has seen the same techniques used by any of history's despots.
That's hardly surprising, since the math doesn't add up. Interest on the national debt is 9.0% of federal spending, so you'd have to eliminate just about everything else in order to get to a 90% reduction.
Here's 2008 Federal Spending — just what would you eliminate to shrink government by 90%?
"In public, he speaks in empty abstractions and foggy metaphors" is an odd criticism given that, if anything, Barack Obama is known for detailed, wonkish responses to questions. For example, when Joe the Plumber asked Obama about taxes, Obama replied with details about income levels and tax rates, without fog.
"all of which are intended to bypass the listener's rational faculty and pull at one's emotions" is an odd comment again given his detailed wonkish statements. On the contrary, it is President Bush who has given us years of empty abstractions and foggy metaphors ("war on terror"?) that are intended to bypass the listener's rational faculty and pull at one's emotions.
Oh, I am more than aware. I used to do tax return preparation for low income people and included claims for the Earned Income Credit for many of them.
My issue was with einhverfr's, "I haven't heard Obama talk about increasing welfare payments yet. Maybe he has and I have missed it?"
I wanted him to know that, indeed, he had missed it; or maybe that he didn't understand the code.
With regard to your "evolutionary" -- you are correct -- but that doesn't mean it's not an issue.
FWIW, I liked the idea of the Earned Income Credit when it was targeted to filers with dependent children and pretty modest incomes -- under, IIRC, at the time $17,000.
But today, it is worrisome to me (and I think would be to Nixon, who I don't really think of as a Conservative, and Friedman) that we're moving from having something like 40% of filers not paying any FIT to, under Obama's plan, according to some estimates, more than 50%.
That's why they call these "slippery slopes."
My conservative self believes 1) that there is no free lunch and 2) that it is dangerous to our civil society to send the message that there is.
Have you heard the definition of democracy that goes, "Two wolves and a sheep voting on what's for dinner."
Heh. There's a whole world of valid criticisms of Bush out there, but attacking him for being overly abstract and metaphorical is one of the least plausible.
On progressive taxation as "spreading the wealth:" Not necessarily. It may (might, theoretically) serve the interests of the wealthy to pay sufficient taxes to get a certain level of, say, roads and defense, even if the poor could not be expected to contribute as much, whether in absolute amount or proportional to income. There may be a spillover benefit to the poor, but the intended effect need not be redistributive. I don't think it improves the clarity of debate to equate progressive taxation with "spreading the wealth." Those arguing for redistribution might find the slippery slope inviting in this case, but possibly not in many other cases.
EYESAY: I'd like to shrink the federal government by as much as 90%, but as you point out, interest on the debts already run up makes that difficult in the near term. So, the debt has to be paid off first. Some of it might be accomplished by selling off a portion of federal lands and buildings.
Another 1.36% goes to Veterans Affairs. Again, this can't reasonably be zeroed out, because these benefits were part of the pay package promised to those who signed up to serve our country, and it wouldn't be right to tell them after the fact that the benefits are gone.
Another 22.77% goes to "Defense," War on Terror, and Homeland Security. I would be pleased to see some savings in this area, but remember that over half of all discretionary spending is in these areas, so if you don't cut here, there isn't much anywhere else.
While raising the benefit age gradually from the traditional 65 may be fine for desk workers, for those who worked at manual labor all of their lives, as they get old, the aches and pains often don't give them the alternative of continuing to work.
Social Security is here to stay. Not only that, despite dishonest fearmongering, under the most likely economic projections, Social Security is solvent forever.
Did you even look at the table in the article you linked to? Between 1999 onwards the predictive accuracy of the three projections (low, intermediate and high) are broadly similar, implying some change to the modelling techniques or assumptions used. This somewhat undercuts your claim.
Then, after the majority rewrote the text, it decided to ignore even that modest requirement by holding that -- even though we were talking about a constitutional right -- on the issue of whether the property was being taken for a public benefit, they would simply refuse to decide that, deferring to the legislature on the subject. But since when does the Court do that with respect to constitutional rights it cares about? It doesn't defer to other branches on whether a particular search is "reasonable," or whether a particular restriction on speech fits into one of the many tests it devises, or on whether a religion is being established. But suddenly, here, we have the Court saying, "Well, yes, there's a restriction here, but we'll let them decide for themselves whether they've satisfied it."
They did not remand the case to decide whether the taking would result in a public benefit. They did not even remand the case to decide whether the motive was public benefit. They simply said, "As long as the government does it, it must be for a good reason."
If flat-earthism was backed by court decisions, made the national news, and was widely commented on by other senators, yet he was suspiciously silent about it, yes, it would.
The closest we have to actual flat-earthism in serious politics is creationism. If Obama refused to say anything about evolution, I'd certainly suspect he's secretly supporting the creationists and doesn't want to say it.
I'd say it is the idea that the earth's climate is changing because of human activity. It's far more dangerous and damaging than creationism.
"Use" is a very, very broad term that can include "benefit." Also, the public can "use" "private" space (say, shopping malls) a lot more than the public can "use" many government buildings. Your construction would prevent eminent domain for privately-owned tollways (a libertarian favorite) as much as it would for shopping malls.
As to "re-writing" the text, both sides can play that game. Often, text could be more clearly written to support either side. A common rhetorical trick is to re-write the text to more strongly support your opposing side's point of view, and then say, "see, they want to re-write it to say this." You want to re-write the text to add that the government can take property "as long as the government will retain ownership."
I generally agree with you as a matter of what makes good policy. Fortunately, the legislative branches are fixing the policy problems with legislation. But to say that the Constitution gives "extraordinarily narrow powers of eminent domain" is just silly.
I won't continue to re-fight the Kelo fight, so you can have the last word if you want. I'll just finish by pointing out that the i>Kelo dissent and the Heller majority show that conservatives are more than willing to interpret (and sometimes twist) the Constitution to enforce their policy preferences. That ain't a distinctively liberal disease.
The number of accusations of twisting the constitution seem to equal the number of interpretations of the constitution.
(Worse than that, however, is that it wasn't really "for" anything. It was just for a naked transfer of private property from one owner to another without any legal guarantee as to how the land would be used.)
(*) It certainly isn't; private tollways may be a "libertarian favorite," but eminent domain for such tollways is not.
That would indeed be a rhetorical trick, since I didn't say that. But I'm not talking about what the Supreme Court "wants" to rewrite the text to say; I'm talking about what it did rewrite the text to say. Under the majority's interpretation, there are no takings that fail to pass muster, except perhaps one in which the government makes an announcement, "Taking this property from A and giving it to B is a terrible idea; B's use for it will be far more detrimental to everyone than A's. Nevertheless, we're doing this because we don't like A."
Because, of course, it is utterly impossible for any private citizens to lift a finger to save their fellow men from starving or freezing.