John Paul Stevens, 99, Associate Justice, SCOTUS (1975-1010)

[That Derek]

https://www.cnn.com/2019/07/16/politics/john-paul-stevens-dead/index.html

Retired Supreme Court Justice John Paul Stevens dies at 99

By Ariane de Vogue, CNN Supreme Court Reporter

Updated 9:01 PM ET, Tue July 16, 2019

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bts justice stevens intv_00033915
Justice Stevens: Supreme Court changed (2011)
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bts justice stevens intv_00033915
Justice Stevens: Supreme Court changed (2011)
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(CNN)Justice John Paul Stevens, who was nominated to the Supreme Court by Republican President Gerald Ford in 1975 in the wake of Watergate and stepped down almost 35 years later as a leader for the liberal side of the bench, has died. He was 99.

Stevens, known as a soft spoken midwesterner with a searing intellect, died on Tuesday, according to a statement from the Supreme Court.
Stevens was born in the South Side of Chicago in 1920 and graduated from the University of Chicago in 1941, and Northwestern Law School in 1947. In interviews, he shied away from questions concerning his legacy and always maintained that his ideology hadn't shifted during his years on the court.

On the bench, always with his trademark bow tie peaking over his judicial robes, Stevens would often wait until the latter half of an argument, lean forward with a polite, "May I ask" and then launch a razor sharp question cutting to the core of an advocate's case.

He retired in 2010 at 90 years old, clearing the way for President Barack Obama to nominate Justice Elena Kagan, then 50, to take his place.
"Thanks to Elena," he said in a speech in 2015 at the University of Miami Law Review Symposium, "I have never regretted my decision to retire."

Stevens, a craftsman for language, wrote powerful dissents when his views did not carry the day.
In Citizens United v. FEC, a campaign finance case in which the majority held that the government could not ban political spending by corporations in candidate elections, Stevens did not mince his words. He accused the majority of rejecting the "common sense of the American people." After his retirement, he said the case should be overruled. "No doubt about it," he told an audience in 2015.
He also penned a dissent in Bush v. Gore, the controversial 2000 decision that halted a recount of Florida ballots and cleared the way for George W. Bush to take the presidency.
"Although we may never know with complete certainty the identity of the winner of this year's Presidential election," Stevens wrote, "the identity of the loser is perfectly clear. It is the Nation's confidence in the judge as an impartial guardian of the rule of law."

In a case concerning detainees at Guantanamo Bay in 2004, Stevens wrote the majority opinion holding that detainees could challenge their detainment in federal court.
Over his career, he voted to reaffirm the core holding of the landmark Roe v. Wade decision to legalize abortion nationwide in 1973; voted in favor of an admissions policy at the University of Michigan Law School that took race into consideration; and he assigned an early gay rights opinion to Justice Anthony Kennedy, who, in turn, relied upon an earlier opinion by Stevens.
He served as a naval intelligence officer in World War II, and wrote a strong dissent in a 1989 decision that upheld a protestor's right to burn the American flag.
Although he voted to uphold the death penalty in 1976, near the end of his tenure in 2008 he said he had come to believe that the death penalty represented "the pointless and needless extinction of life with only marginal contributions to any discernible social or public purpose."
Because of his seniority, by 1994, Stevens had the authority to assign opinions when the chief justice was voting on the other side. Stevens, who also happened to be an accomplished bridge player, was a master tactician. He used his assigning authority strategically, sometimes taking on the big decisions himself, other times assigning them to a justice who might be wavering to bolster his or her vote.
No slacker in retirement, Stevens wrote books and essays while also appearing often in public for talks and speeches.
In March 2017, after a massive school shooting in Parkland, Florida, Stevens took the step of calling for the repeal of the Second Amendment.
In an op-ed for the New York Times he noted that he had been in dissent in a 2008 landmark opinion holding for the first time that an individual has a right to bear arms in the home and said the best way to overturn that decision was to repeal the Second Amendment.
"Overturning that decision via a constitutional amendment to get rid of the Second Amendment would be simple and would do more to weaken the N.R.A.'s ability to stymie legislative debate and block constructive gun control legislation than any other available option," Stevens wrote.

In a 2007 interview with scholar Jeffrey Rosen for the New York Times magazine, Stevens said that he considered himself a judicial conservative "who submerges his or her own views of sound policy to respect those decisions by the people who have authority to make them."

This story is breaking and being updated.

[darrell...@gmail.com]

99?

As Maxwell Smart would say, “Missed it by that much.”

[Louis Epstein]

darrell...@gmail.com wrote:
> 99?
>
> As Maxwell Smart would say, ?Missed it by that much.?

Crushed the previous longevity record held by Justice Stanley F. Reed
(1884-1980),though.

-=-=-
The World Trade Center towers MUST rise again,
at least as tall as before...or terror has triumphed.

[Slugger]

On 2019-07-17 01:17:11 +0000, That Derek said:

> https://www.cnn.com/2019/07/16/politics/john-paul-stevens-dead/index.html
>
> Retired Supreme Court Justice John Paul Stevens dies at 99

Baseball note:

"My dad took me to see the World Series, and we were sitting behind
third base, not too far back.... Ruth did point to the center-field
scoreboard. And he did hit the ball out of the park after he pointed
with his bat. So it really happened." former Associate Justice John
Paul Stevens, United States Supreme Court

[David Carson]

He also wrote the majority opinion in Kelo v. City of New London, in which
the 5-4 court held that the words "for public use" in the Takings Clause
of the Constitution include "or for private purposes" and, therefore, that
the government can seize people's homes and demolish them then sell the
land to other private entities. New London, Connecticut, in a planned
economic revitalization project, seized and demolished numerous homes, but
the private developers couldn't obtain financing, so the project was
abandoned. The property New London seized in 2005 remains a vacant lot to
this day. Stevens' decision was so idiotic and hated that 45 states have
passed laws restricting its application.

David Carson
--
Dead or Alive Data Base
http://www.doadb.com

[Adam H. Kerman]

You're completely getting Kelo wrong. It was a federalism issue. The
right in question wasn't a civil right under the federal constitution
but could have been a right under state constitutions or state laws.

The federal constitution doesn't prevent every bad act by government nor
does it protect every desireable individual liberty.

[darrell...@gmail.com]

Stevens' decision was so idiotic and hated that 45 states have passed laws restricting its application.

For the most part, decent attorneys can’t stand Stevens!

[darrell...@gmail.com]

You're completely getting Kelo wrong. It was a federalism issue. The
right in question wasn't a civil right under the federal constitution
but could have been a right under state constitutions or state laws.

The federal constitution doesn't prevent every bad act by government nor
does it protect every desireable individual liberty.

You are exactly right. While it seems like everyone is a lawyer... few are schooled. LOL

[David Carson]

On Wed, 17 Jul 2019 14:58:56 -0000 (UTC), "Adam H. Kerman"
<a...@chinet.com> wrote:

>David Carson <da...@neosoft.com> wrote:
>
>>He also wrote the majority opinion in Kelo v. City of New London, in which
>>the 5-4 court held that the words "for public use" in the Takings Clause
>>of the Constitution include "or for private purposes" and, therefore, that
>>the government can seize people's homes and demolish them then sell the
>>land to other private entities. New London, Connecticut, in a planned
>>economic revitalization project, seized and demolished numerous homes, but
>>the private developers couldn't obtain financing, so the project was
>>abandoned. The property New London seized in 2005 remains a vacant lot to
>>this day. Stevens' decision was so idiotic and hated that 45 states have
>>passed laws restricting its application.
>
>>David Carson
>
>You're completely getting Kelo wrong. It was a federalism issue.

No, you're getting Stevens' opinion completely wrong. The Court's ruling
was based, as I wrote, on broadly interpreting what "for public use"
means. Neither the majority opinion nor Kennedy's concurring opinion
brought federalism up at all. Your notion of what the case *ought* to have
turned on is irrelevant. (It's also wrong, as demonstrated below.)

>The
>right in question wasn't a civil right under the federal constitution
>but could have been a right under state constitutions or state laws.

Perhaps you hadn't heard, but most of the Bill of Rights has been
incorporated, piece by piece, against the states. The Takings Clause was
literally the very first piece to be incorporated, in 1897.

[Adam H. Kerman]

David Carson <da...@neosoft.com> wrote:
>On Wed, 17 Jul 2019 14:58:56 -0000 (UTC), "Adam H. Kerman" <a...@chinet.com>:

>>David Carson <da...@neosoft.com> wrote:

>>>He also wrote the majority opinion in Kelo v. City of New London, in which
>>>the 5-4 court held that the words "for public use" in the Takings Clause
>>>of the Constitution include "or for private purposes" and, therefore, that
>>>the government can seize people's homes and demolish them then sell the
>>>land to other private entities. New London, Connecticut, in a planned
>>>economic revitalization project, seized and demolished numerous homes, but
>>>the private developers couldn't obtain financing, so the project was
>>>abandoned. The property New London seized in 2005 remains a vacant lot to
>>>this day. Stevens' decision was so idiotic and hated that 45 states have
>>>passed laws restricting its application.

>>You're completely getting Kelo wrong. It was a federalism issue.

>No, you're getting Stevens' opinion completely wrong. The Court's ruling
>was based, as I wrote, on broadly interpreting what "for public use"
>means. Neither the majority opinion nor Kennedy's concurring opinion
>brought federalism up at all. Your notion of what the case *ought* to have
>turned on is irrelevant. (It's also wrong, as demonstrated below.)

The state in question wrote a bad law. The lack of development was a
combination of the bad taking AND the bad land use plan, together with a
bad subsidy. All these work together; the federal constitution addresses
"taking" only.

>>The right in question wasn't a civil right under the federal constitution
>>but could have been a right under state constitutions or state laws.

>Perhaps you hadn't heard, but most of the Bill of Rights has been
>incorporated, piece by piece, against the states. The Takings Clause was
>literally the very first piece to be incorporated, in 1897.

The civil right you believe should exist, that does not exist in the
federal constitution, is the right to use one's own property without
being forced to sell it to another private developer due to action by a
local government.

This just wasn't a federal matter to begin with. Connecticut simply had
shit laws on its books and the right solution would have been to amend
or repeal those laws.

45 states amended their own laws? Good. It's about time that state
legislatures did their own dirty work.

[J.D. Baldwin]

In the previous article, Adam H. Kerman <a...@chinet.com> wrote:
> >He also wrote the majority opinion in Kelo v. City of New London,
> >in which the 5-4 court held that the words "for public use" in the
> >Takings Clause of the Constitution include "or for private
> >purposes" and, therefore, that the government can seize people's
> >homes and demolish them then sell the land to other private
> >entities. New London, Connecticut, in a planned economic
> >revitalization project, seized and demolished numerous homes, but
> >the private developers couldn't obtain financing, so the project
> >was abandoned. The property New London seized in 2005 remains a
> >vacant lot to this day. Stevens' decision was so idiotic and hated
> >that 45 states have passed laws restricting its application.
>
> >David Carson
>
> You're completely getting Kelo wrong. It was a federalism issue. The
> right in question wasn't a civil right under the federal constitution
> but could have been a right under state constitutions or state laws.

You have it 100% backwards. David is absolutely correct. It is long
and well settled that federal, state or local government may not seize
private property unless the seizure is "for public use." (This is
thanks to the Fifth *and* Fourteenth Amendments.) Kelo was about the
limits of what "public use" means.

The original intent of the clause -- this, again, is not in dispute --
was that meant public buildings and roads and the like. It *never*
meant "We can take your property and give it to some rich asshole just
because he's spread a bunch of 'campaign donations' around the city
council." But now, thanks to Stevens and Kelo it totally does.

Over in NYC, there are two little businesses in the corners of the
block known as Rockefeller Center. These were houses owned by "little
people" who didn't want to sell out to John Rockefeller. The absurdly
wealthy magnate simply had to choke it down and adjust his building
plans.

If this happened in 2019, thanks to Stevens and his Kelo majority,
Rockfeller would just have called up his good buddy the Mayor and
gotten the problem "fixed" and those homeowners would have been out on
their ears.

BTW, I loved Michigan's response to Kelo. The law in Michigan was
already far more restrictive than Kelo thanks to both statute and case
law. But Michiganders decided that didn't go far enough for them, and
they amended the state Constitution by referendum to prohibit state
property seizure that isn't for true public projects.

As for Stevens, I hope he smokes cat turds in Hell for 30 or 40
thousand years until he's paid off his debt for Kelo. (Then he can
start atoning for his ghastly, dishonest dissent in Heller. But one
thing at a time.)
--
_+_ From the catapult of |If anyone objects to any statement I make, I am
_|70|___:)=}- J.D. Baldwin |quite prepared not only to retract it, but also
\ / bal...@panix.com|to deny under oath that I ever made it.-T. Lehrer
***~~~~----------------------------------------------------------------------

[Adam H. Kerman]

J.D. Baldwin <ne...@baldwin.users.panix.com> wrote:
>Adam H. Kerman <a...@chinet.com> wrote:

>>>He also wrote the majority opinion in Kelo v. City of New London,
>>>in which the 5-4 court held that the words "for public use" in the
>>>Takings Clause of the Constitution include "or for private
>>>purposes" and, therefore, that the government can seize people's
>>>homes and demolish them then sell the land to other private
>>>entities. New London, Connecticut, in a planned economic
>>>revitalization project, seized and demolished numerous homes, but
>>>the private developers couldn't obtain financing, so the project
>>>was abandoned. The property New London seized in 2005 remains a
>>>vacant lot to this day. Stevens' decision was so idiotic and hated
>>>that 45 states have passed laws restricting its application.

>>You're completely getting Kelo wrong. It was a federalism issue. The
>>right in question wasn't a civil right under the federal constitution
>>but could have been a right under state constitutions or state laws.

>You have it 100% backwards. David is absolutely correct. It is long
>and well settled that federal, state or local government may not seize
>private property unless the seizure is "for public use." (This is
>thanks to the Fifth *and* Fourteenth Amendments.) Kelo was about the
>limits of what "public use" means.

>The original intent of the clause -- this, again, is not in dispute --
>was that meant public buildings and roads and the like. It *never*
>meant "We can take your property and give it to some rich asshole just
>because he's spread a bunch of 'campaign donations' around the city
>council." But now, thanks to Stevens and Kelo it totally does.

I cannot find a federal court decision that construed "public use" as
narrowly as you do. Provide your citation or withdraw your point.

btw, building a road, sewers, water, gas, electric, etc. directly
creates value for the owners of the nearby properties being served. This
is a private benefit at public expense, even though members of the
public get to use the road or utility. Some landowners benefit, some
lose, but the public pays for it all. Your claim that there's soemthing
new here is wrong.

Historical examples were towns that lobbied or paid railroads to serve
them, creating prosperity for their town and ghost towns along the route
not built, if they predated the railroad. In the interstate highway era,
the interchange outside of town became the effective business district.
The local highway that ran through the traditional business district was
bypassed and the business district did not thrive.

It's not new. It has been seen before.

>Over in NYC, there are two little businesses in the corners of the
>block known as Rockefeller Center. These were houses owned by "little
>people" who didn't want to sell out to John Rockefeller. The absurdly
>wealthy magnate simply had to choke it down and adjust his building
>plans.

Ok.

>If this happened in 2019, thanks to Stevens and his Kelo majority,
>Rockfeller would just have called up his good buddy the Mayor and
>gotten the problem "fixed" and those homeowners would have been out on
>their ears.

Uh, no. New York state statutes would have to have a similar law on the
books to Connecticut's, if it's not unconstitutional per the state
constitution. That's not "under" Kelo.

>BTW, I loved Michigan's response to Kelo. The law in Michigan was
>already far more restrictive than Kelo thanks to both statute and case
>law. But Michiganders decided that didn't go far enough for them, and
>they amended the state Constitution by referendum to prohibit state
>property seizure that isn't for true public projects.

Great! How the hell is that not an exercise of federalism as I pointed
out from the start?

[danny burstein]

In <qgntu5$nuj$1...@reader1.panix.com> INVALID...@example.com.invalid (J.D. Baldwin) writes:

>Over in NYC, there are two little businesses in the corners of the
>block known as Rockefeller Center. These were houses owned by "little
>people" who didn't want to sell out to John Rockefeller. The absurdly
>wealthy magnate simply had to choke it down and adjust his building
>plans.

Or there's Queens' (one of the "other boroughs" of NYC's)
hometown hero, Mary Sendek.

hmm, no Wiki page. Well, there's this:

[Queens news]

On Sept. 15, 1922, Joseph Sendek, a Hungarian immigrant and
professional wood carver, bought a 20-by-30-foot house at
Queens Boulevard and 55th Avenue with his wife Mary, for $4,000.
The lot was 52 feet wide and almost 170 feet deep.
.......
In 1963, Macy's decided to build its most ambitious
project in Queens, a revolutionary circular department store
that was to be the showpiece of the boulevard. Macy's had
purchased five acres to do it, but Mary Sendek, by then a widow,
decided to stay. The media followed the story as Macy's kept
upping its offer. Its final offer in 1964 was $200,000,
over $1.5 million in today's money.
======
rest:
https://www.qchron.com/qboro/i_have_often_walked/macy-s-meets-mary-sendek/article_f50eba38-636f-54fe-b3fb-3d4ff16776f6.html

--
_____________________________________________________
Knowledge may be power, but communications is the key
dan...@panix.com
[to foil spammers, my address has been double rot-13 encoded]

[J.D. Baldwin]

In the previous article, Adam H. Kerman <a...@chinet.com> wrote:
> >The original intent of the clause -- this, again, is not in dispute --
> >was that meant public buildings and roads and the like. It *never*
> >meant "We can take your property and give it to some rich asshole just
> >because he's spread a bunch of 'campaign donations' around the city
> >council." But now, thanks to Stevens and Kelo it totally does.
>
> I cannot find a federal court decision that construed "public use" as
> narrowly as you do. Provide your citation or withdraw your point.

The general grant of legislative power in the constitution of a
state does not enable the legislature, in the exercise either of
the right of eminent domain or of the right of taxation, to take
private property without the owner's consent, for any but a public
object. Nor can the legislature authorize counties, cities, or
towns to contract, for private objects, debts which must be paid
by taxes. It cannot, therefore, authorize them to issue bonds to
assist merchants or manufacturers, whether natural persons or
corporations, in their private business. These limits of the
legislative power are now too firmly established by judicial
decisions to require extended argument upon the subject.

- Cole v. La Grange, 113 U.S. 1 (1885)

... which decision goes on to cite others:

In Loan Association v. Topeka, 20 Wall. 655, bonds of a city,
issued, as appeared on their face, pursuant to an act of the
Legislature of Kansas to a manufacturing corporation to aid it in
establishing shops in the city for the manufacture of iron
bridges, were held by this Court to be void even in the hands of a
purchaser in good faith and for value. A like decision was made in
Parkersburg v. Brown, 106 U. S. 487. The decisions in the courts
of the states are to the same effect. Allen v. Jay, 60 Me. 124;
Lowell v. Boston, 111 Mass. 454; Weismer v. Douglas, 64 N.Y. 91;
In re Eureka Co., 96 N.Y. 42; Bissell v. Kankakee, 64 Ill. 249;
English v. People, 96 Ill.

> >Over in NYC, there are two little businesses in the corners of the
> >block known as Rockefeller Center. These were houses owned by "little
> >people" who didn't want to sell out to John Rockefeller. The absurdly
> >wealthy magnate simply had to choke it down and adjust his building
> >plans.
>
> Ok.
>
> >If this happened in 2019, thanks to Stevens and his Kelo majority,
> >Rockfeller would just have called up his good buddy the Mayor and
> >gotten the problem "fixed" and those homeowners would have been out on
> >their ears.
>
> Uh, no. New York state statutes would have to have a similar law on
> the books to Connecticut's, if it's not unconstitutional per the
> state constitution. That's not "under" Kelo.

Good Lord, of *course* it is. Since the Fifth Amendment was
effectively declared void by Stevens and his "liberal" colleagues, New
York has seized the shit out of all kinds of property on behalf of
miscellaneous politicians' cronies:

I have elided the citations here for readability, but you can go to
the source if you want to chase them down for yourself:

In jurisdictions with no statutory, constitutional, or judicial
reform, courts allow the use of eminent domain for, seemingly, any
private use. Since Kelo, the use of eminent domain in New York has
been by far the worst. It sounds like a parody of takings horror
stories. According to the New York Courts, all of the following
were valid public purposes for eminent domain: private development
around a sports stadium, the expansion of Columbia University, the
replacement of a CVS with a Walgreens, and the enhancement of a
golf course. The District of Columbia, which is subject only to
federal constitutional restrictions, has used eminent domain for
an ill-conceived shopping mall; it has taken almost a decade to
land an anchor tenant. The Supreme Court of Guam approved the
taking of private land for the benefit of the Mayor of a Guamanian
city.

https://www.yalelawjournal.org/forum/looking-back-ten-years-after-kelo

> >BTW, I loved Michigan's response to Kelo. The law in Michigan was
> >already far more restrictive than Kelo thanks to both statute and
> >case law. But Michiganders decided that didn't go far enough for
> >them, and they amended the state Constitution by referendum to
> >prohibit state property seizure that isn't for true public
> >projects.
>
> Great! How the hell is that not an exercise of federalism as I
> pointed out from the start?

It totally is. It just isn't enough. *Fundamental* rights shouldn't
have to be protected by the states directly. That's why we
(supposedly) have a Constitution that puts some of them beyond the
reach of the state. Until Kelo, the right to private property was
among them.

[Adam H. Kerman]

J.D. Baldwin <ne...@baldwin.users.panix.com> wrote:
>Adam H. Kerman <a...@chinet.com> wrote:

>>>The original intent of the clause -- this, again, is not in dispute --
>>>was that meant public buildings and roads and the like. It *never*
>>>meant "We can take your property and give it to some rich asshole just
>>>because he's spread a bunch of 'campaign donations' around the city
>>>council." But now, thanks to Stevens and Kelo it totally does.

>>I cannot find a federal court decision that construed "public use" as
>>narrowly as you do. Provide your citation or withdraw your point.

> The general grant of legislative power in the constitution of a
> state does not enable the legislature, in the exercise either of
> the right of eminent domain or of the right of taxation, to take
> private property without the owner's consent, for any but a public
> object. Nor can the legislature authorize counties, cities, or
> towns to contract, for private objects, debts which must be paid
> by taxes. It cannot, therefore, authorize them to issue bonds to
> assist merchants or manufacturers, whether natural persons or
> corporations, in their private business. These limits of the
> legislative power are now too firmly established by judicial
> decisions to require extended argument upon the subject.

> - Cole v. La Grange, 113 U.S. 1 (1885)

I took a moment to read the facts of the case. It is in no way
comparable. The city defaulted on a bond issue that was apparently
unconstitutional to issue in the first place.

My question put to you remains unanswered. As Kelo involved land, I sure
thought that maybe you'd come up with a federal court decision with
regard to the taking of land under somewhat comparable circumstances.

>>>Over in NYC, there are two little businesses in the corners of the
>>>block known as Rockefeller Center. These were houses owned by "little
>>>people" who didn't want to sell out to John Rockefeller. The absurdly
>>>wealthy magnate simply had to choke it down and adjust his building
>>>plans.

>>Ok.

>>>If this happened in 2019, thanks to Stevens and his Kelo majority,
>>>Rockfeller would just have called up his good buddy the Mayor and
>>>gotten the problem "fixed" and those homeowners would have been out on
>>>their ears.

>>Uh, no. New York state statutes would have to have a similar law on
>>the books to Connecticut's, if it's not unconstitutional per the
>>state constitution. That's not "under" Kelo.

>Good Lord, of *course* it is. Since the Fifth Amendment was
>effectively declared void by Stevens and his "liberal" colleagues, New
>York has seized the shit out of all kinds of property on behalf of
>miscellaneous politicians' cronies:

Uh huh. New York political subdivisions never before seized land for
private benefit in the decades before Kelo. Is that your position?

>. . .

>>>BTW, I loved Michigan's response to Kelo. The law in Michigan was
>>>already far more restrictive than Kelo thanks to both statute and
>>>case law. But Michiganders decided that didn't go far enough for
>>>them, and they amended the state Constitution by referendum to
>>>prohibit state property seizure that isn't for true public
>>>projects.

>>Great! How the hell is that not an exercise of federalism as I
>>pointed out from the start?

>It totally is. It just isn't enough. *Fundamental* rights shouldn't
>have to be protected by the states directly.

Of course they should, given how few rights are protected in the federal
constitution. I have no interest in enjoying no other right except those
in the federal constitution.

>That's why we (supposedly) have a Constitution that puts some of them
>beyond the reach of the state. Until Kelo, the right to private property
>was among them.

Well, no, that was Reconstruction.

You know that some legal scholars believe the takings clause was granting
a power TO the federal government, yes? That without it, the federal
government wouldn't have had the power to condemn property?

There's just no way to read the takings clause as a grant of right to an
individual or corporation to own land and do with it what he pleases. His
only right under the takings clause is to just compensation if private
property is taken for a public purpose.

[Adam H. Kerman]

David Carson <da...@neosoft.com> wrote:
>Wed, 17 Jul 2019 19:38:22 -0000 (UTC), "Adam H. Kerman" <a...@chinet.com>:

>>David Carson <da...@neosoft.com> wrote:

>>>Perhaps you hadn't heard, but most of the Bill of Rights has been
>>>incorporated, piece by piece, against the states. The Takings Clause was
>>>literally the very first piece to be incorporated, in 1897.

>>The civil right you believe should exist, that does not exist in the
>>federal constitution, is the right to use one's own property without
>>being forced to sell it to another private developer due to action by a
>>local government.

>I'm not writing about what I believe should exist. I'm writing about
>what happened. The city of New London took people's property against
>their will.

That's how condemnation works, yes.

>The homeowners sued.

Not on the basis that condemnation was unconstitutional, but that it
wasn't taken for public use. Get it right.

>Their case went to the Supreme Court. Stevens wrote the majority opinion,
>which said that the Takings Clause of the Fifth Amendment gave state and
>local governments the power to do this by a broad interpretation of the
>phrase "for public use."

Yes.

>Have I written anything incorrect so far? No, these are all facts. At
>no point here or in either of my previous two posts have said anything
>about what rights I believe ought to exist.

Nice backpedal. You believe that the takings clause is a civil right
that protects a landowner from condemnation of his land if not for a
public use. Stevens' opinion is that public use is interpreted with wide
latitude, regardless of whether the unwilling seller believes the use to
be public.

Just confirm the framing of the issue and we can move along.

>You, on the other hand, have stated that Kelo was about federalism.

No. I'm stating that Stevens thought the issue of restricting these
actions by political subdivisions of a state was up to the state
legislature. That's federalism. It is not my opinion that the Fifth
Amendment takings clause hasn't been incorporated against the states.

>This is neither a fact, nor an opinion, it is a falsehood. Read the
>opinions in Kelo and tell us where they mention federalism.

You jumped to a conclusion about what I meant rather than asking me to
expand upon something I'd written that was, well, too ambiguous.

>You also stated, "The right in question wasn't a civil right under the
>federal constitution," even though the rights conferred by the Fifth
>Amendment were generally incorporated against the states by the
>Fourteenth Amendment in 1868 and the Takings Clause was _explicilty_
>incorporated in an 1897 Supreme Court case.

I am aware of that. I absolutely disagree with your notion of what the
civil right in the takings clause actually protects.

>I know you've got this all worked out a certain way in your head,
>though, and I expect you'll probably keep operating under that version
>of it.

I certainly don't agree with the way you got it all worked out in your
head. I'm absolutely certain that you've got your fingers in your ears
and have no interested in being dissuaded by anything I might say.
Clearly that's not why you wrote the followup.

[J.D. Baldwin]

In the previous article, Adam H. Kerman <a...@chinet.com> wrote:
> >>I cannot find a federal court decision that construed "public use" as
> >>narrowly as you do. Provide your citation or withdraw your point.
>
> > The general grant of legislative power in the constitution of a
> > state does not enable the legislature, in the exercise either of
> > the right of eminent domain or of the right of taxation, to take
> > private property without the owner's consent, for any but a public
> > object. Nor can the legislature authorize counties, cities, or
> > towns to contract, for private objects, debts which must be paid
> > by taxes. It cannot, therefore, authorize them to issue bonds to
> > assist merchants or manufacturers, whether natural persons or
> > corporations, in their private business. These limits of the
> > legislative power are now too firmly established by judicial
> > decisions to require extended argument upon the subject.
>
> > - Cole v. La Grange, 113 U.S. 1 (1885)
>
> I took a moment to read the facts of the case. It is in no way
> comparable. The city defaulted on a bond issue that was apparently
> unconstitutional to issue in the first place.

The facts aren't the important part, the principle of the holding is.
You asked for a citation to the narrow view of "public use" that
obtained before Kelo -- actually from before the so-called
"progressive era" when the Court drastically expanded government
powers and loosened restrictions on same. Anyway, I gave you that
citation. You complain that the facts were different. Of-freaking-
COURSE the facts were different! It's a different case! Do you
understand how law works at all?

> My question put to you remains unanswered. As Kelo involved land, I
> sure thought that maybe you'd come up with a federal court decision
> with regard to the taking of land under somewhat comparable
> circumstances.

It doesn't have to be land. It can be chattel, intellectual property,
claims, money -- the government cannot seize property except for
"public use." This is, as I said (and, now, proved), a long-standing
legal principle.

> >Good Lord, of *course* it is. Since the Fifth Amendment was
> >effectively declared void by Stevens and his "liberal" colleagues,
> >New York has seized the shit out of all kinds of property on behalf
> >of miscellaneous politicians' cronies:
>
> Uh huh. New York political subdivisions never before seized land for
> private benefit in the decades before Kelo. Is that your position?

I have no idea why it has to be. Governments abuse citizens' rights
all the time, not just in this area. Fighting them is very hard.
Before Kelo, at least the victims had a fighting chance. Now, thanks
to Justice Stevens, they have none.

> >That's why we (supposedly) have a Constitution that puts some of
> >them beyond the reach of the state. Until Kelo, the right to
> >private property was among them.
>
> Well, no, that was Reconstruction.

The Fifth Amendment was not a Reconstruction amendment. Maybe you're
thinking of #15.

> You know that some legal scholars believe the takings clause was
> granting a power TO the federal government, yes? That without it,
> the federal government wouldn't have had the power to condemn
> property?

That view may be held by a few cranks out there, but it is ahistorical
and legally illiterate. The Bill of Rights does not grant powers to
government; it places restrictions on it.

There is no support at all for the notion that any Framer of the
Constitution thought the federal government needed special
constitutional permission to seize private property. It was done
prior to the existence of the United States. It was done *by* the
United States under the Articles of Confederation. It was done by the
United States after the adoption of the Constitution and prior to the
ratification of the Fifth Amendment. And the legal principle involved
has been stated over and over in legal treatises old and new. Sample:

The right of eminent domain -- that is, the right to take private
property for public uses -- appertains to every independent
government. It requires no constitutional recognition; it is an
attribute of sovereignty. The clause found in the constitutions of
the several states providing for just compensation for property
taken is a mere limitation upon the exercise of the right.

- Boom Co. v. Patterson, 98 U.S. 403 (1878

[Adam H. Kerman]

J.D. Baldwin <ne...@baldwin.users.panix.com> wrote:
>Adam H. Kerman <a...@chinet.com> wrote:

>>>>I cannot find a federal court decision that construed "public use" as
>>>>narrowly as you do. Provide your citation or withdraw your point.

>>> The general grant of legislative power in the constitution of a
>>> state does not enable the legislature, in the exercise either of
>>> the right of eminent domain or of the right of taxation, to take
>>> private property without the owner's consent, for any but a public
>>> object. Nor can the legislature authorize counties, cities, or
>>> towns to contract, for private objects, debts which must be paid
>>> by taxes. It cannot, therefore, authorize them to issue bonds to
>>> assist merchants or manufacturers, whether natural persons or
>>> corporations, in their private business. These limits of the
>>> legislative power are now too firmly established by judicial
>>> decisions to require extended argument upon the subject.

>>> - Cole v. La Grange, 113 U.S. 1 (1885)

>>I took a moment to read the facts of the case. It is in no way
>>comparable. The city defaulted on a bond issue that was apparently
>>unconstitutional to issue in the first place.

>The facts aren't the important part, the principle of the holding is.

The facts aren't important with regard to the legal citation of a
reported case and an precedent it might set for the matter at hand?

I'm not playing lawyer on Usenet, but I do know how precedent works.

The rest snipped unread

[J.D. Baldwin]

In the previous article, Adam H. Kerman <a...@chinet.com> wrote:
> I'm not playing lawyer on Usenet,

Or anywhere else, I hope.

> but I do know how precedent works.

That does not seem to be the case.

> The rest snipped unread

I can hardly blame you for that. When you're licked, you're licked.