Toyah

Hook 'em Horns!

Box office decline hits record -- at $9+ a pop, no one should be surprised.
Netflix rocks.

the nba had me having fits. i dislike larry brown and many of the pistons players. i also dislike tony parker, and i think that tim duncan is getting too much praise as an all-time great. i have decided to credit robert horry with the san antonio championship.

i will be flying to texas in a little over a month. i am meeting matt and nick at bush airport in houston. good times should surely ensue....speaking of matt and nick, i saw the tecmo hall of fame at the senior sidewalk in hillsdale while at a wedding. the wedding was in the arb, and the reception was in curtiss dining hall. my worlds were colliding and i almost couldn't handle it.

i have grown to love msn.foxsports.com at work. baseball game updates are an awesome way to pass time at work, since i refuse to do the tele-sales crap that would otherwise fill my day. launchcast from yahoo provides me with musical entertainment as well...i may end up paying for the subscription version. last, and least, the next blog feature of blogspot has taken up a lot of time from my workdays, a couple of them even causing return visits.

supreme court, property rights, literature, politics, and religion (lest someone not recognize this as a toyah-worthy post)

Unfortunately, Kelo is just the latest in a progressive (creeping?) expansion of government regarding private property. Mark Twain had trouble with it too, in this case with a bootleg copy of one of his books (hat tip to Captain's Quarters).

Mark Twain put it sarcastically well:

I am in receipt of your favor of the 24th instant, conveying the gratifying intelligence that I have been made an honorary member of the Free Trade Club of Concord, Massachusetts, and I desire to express to the club, through you, my grateful sense of the high compliment thus paid me. It does look as if Massachusetts were in a fair way to embarrass me with kindnesses this year. In the first place, a Massachusetts judge has just decided in open court that a Boston publisher may sell, not only his own property in a free and unfettered way, but also may as freely sell property which does not belong to him but to me; property which he has not bought and which I have not sold. Under this ruling I am now advertising that judge's homestead for sale, and, if I make a good a sum out of it as I expect, I shall go on and sell out the rest of his property.

The historical side of me says, "Well, this is nothing new." The constitutional side of me says, "But that doesn't make it right, then or now!" We're in good company, anyway.

The case is KELO et al. v. CITY OF NEW LONDON et al. and the opinion, concurrence, and dissents can be read here.

The Court held that, "The city's proposed disposition of petitioners' property qualifies as a "public use" within the meaning of the Takings Clause."

It justified this decision,

"Though the city could not take petitioners' land simply to confer a private benefit on a particular private party, see, e.g., Midkiff, 467 U. S., at 245, the takings at issue here would be executed pursuant to a carefully considered development plan, which was not adopted "to benefit a particular class of identifiable individuals," ibid. Moreover, while the city is not planning to open the condemned land--at least not in its entirety--to use by the general public, this "Court long ago rejected any literal requirement that condemned property be put into use for the ... public." Id., at 244. Rather, it has embraced the broader and more natural interpretation of public use as "public purpose."

Initially, I was disgusted when I heard this decision. After reading the decision, I can at least see where they're coming from. States' rights' proponents could even see some support from the Court, which essentially left takings up to the local authorities.

However, the dissenting opinions are a better reading of the Constitution and of relevant case law, I think. O'Conner's dissent summarized the facts of the case (Pfizer wanted to build a new factory: the owners of the houses protested that, while the city could take land for a public purpose such as a railroad, they could not take private land to give to another private entity, even if that entity would use the land more productively [i.e., would be of more benefit to the public]) and commented:

"...the Court today significantly expands the meaning of public use. It holds that the sovereign may take private property currently put to ordinary private use, and give it over for new, ordinary private use, so long as the new use is predicted to generate some secondary benefit for the public--such as increased tax revenue, more jobs, maybe even aesthetic pleasure."

This means, she said, that there is now no constraint on the eminent domain power.

Thomas' dissent added:

"The Constitution's text, in short, suggests that the Takings Clause authorizes the taking of property only if the public has a right to employ it, not if the public realizes any conceivable benefit from the taking."

...The Takings Clause is a prohibition, not a grant of power: The Constitution does not expressly grant the Federal Government the power to take property for any public purpose whatsoever. Instead, the Government may take property only when necessary and proper to the exercise of an expressly enumerated power.

I prefer the reading that O'Conner and Thomas gave over the reading of the majority. The text of the 5th Amendment says that "...nor shall private property be taken for public use, without just compensation." As Thomas pointed out, this particular taking is not for public use. The city made some vague connection in the form of jobs and urban renewal, but that seems a very stretched interpretation to me.

Bill Kristol predicts O'Connor, not Rehnquist, will step down next week; foresees no improvement in the Court's make up. Still, it can't hurt to give O'Connor the boot, no matter how good her dissent in the Kelo case may have been.

The Supreme Court today ruled that government may sieze private property for private development (Kelo v. City of New London). I don't have time to say more than that this is a bad decision. More from the Institute for Justice.

The "flypaper strategy" is an idea that posits that the goal of the U.S. action in Iraq (I hesitate to call it a war when there's no state to fight) is to attract terrorists and kill them there, fighting against soldiers who can shoot back, rather than waiting for them (the terrorists) to attack defenceless civilization in New York or Madrid. The idea has been greatly mocked by skeptics, but even the BBC acknowledges that it might be having some effect:

Impearls blog summarizes the BBC report:

"Thus, the importance of the war in Iraq for keeping terrorists at bay from the centers of civilization. The BBC broadcast piece shows how the “flypaper strategy” for attracting terrorists to Iraq is working. Instead of subverting European countries or attacking America, potentially at the cost of thousands of civilian casualties as we've seen before, jihadists are flocking to Iraq, where our military can kill them in detail.

It's also worth observing how the suicide bombers we hear about every day in the news from Iraq are actually arriving from abroad. From the reports I've seen, essentially none of the fanatics willing to blow themselves up taking many Iraqis along with them are Iraqis themselves. So much for the idea that it's primarily the Iraqis who hate Americans and the Coalition and want us out; rather it's radical Islamofascist foreigners from around the world who are desperate to prevent Iraqis from taking destiny in their own hands to establish a modern, decent democratic society in the heart of the Muslim world."

Food for thought...

UT Law prof Lino Graglia, the lone "raving conservative lunatic" on the UT law faculty, writes about the reality of modern constitutional law in this recent WSJ op-ed. In actuality, the judge-claimed claimed power to strike down state laws as unconstitutional is a farse purportedly derived from the 14th Amendment--an amendment meant to guarantee civil rights to blacks. Any other interpretation is a false one and a departure from our federal democracy in favor of SCOTUS oligarchy. The op-ed is short and easy to read--check it out.

(See also The End of Democracy Part 1 and Part 2; and The Future of the End of Democracy, all of which I believe I've referenced here before)

Republican Senators are considering options to reform Social Security before it totally implodes from inability to pay benefits. Though President Bush's primary proposal is to allow individuals to invest a portion of their Social Security payroll taxes themselves, this option is not popular (mostly from ignorance of the issue), and so Republicans are considering other alternatives to extend Social Security's solvency, such as raising the retirement age to 69 or eliminating benefits for higher income earners.

Both of these options are good first steps at weaning Americans off the Government doll and Republicans should pass them. But, if they do, the Republicans should be prepared to be voted out of office. With some coaching by the Democrats, millions of Americans falsely believe that their Social Security taxes are accumulating somewhere in a retirement fund just for them, and they won't like someone tinkering with their retirement. Despite America's apparent lean to the right, this is the Dems' one trump card, an entitlement gift given by FDR that just keeps on giving!

You know, I've gone out on a limb to defend some of the more controversial actions by the Bush Administration. I've defended the Patriot Act in particular, in discussions with friends before the last election. From what I understand, the FBI was handicapped by bureaucratic red tape in it's anti-terror efforts before 9/11, and the Patriot Act redressed that problem.

But then I read things like this:

Senate panel votes to expand Patriot Act

...in which, among other things, "the proposal appears to grant the FBI more power to seek information from banks, hospitals, libraries, and so on through "administrative subpoenas" without prior judicial oversight. The subpoenas are only supposed to be used for terrorism or clandestine intelligence cases."

And it becomes harder and harder to still be supportive.

Isn't this like arguing that Lincoln died of lead poisoning? What is hoped to be achieved here? Either way it's all just guessing and matters little.

You've probably already heard that today the Supreme Court upheld the power of the federal government to regulate or prohibit the private, non-commercial produciton and use of marijuana, even if the use is authorized by state law for medical purposes. Ten states currently have laws authorizing doctors to prescribe medical marijuana. The case, Gonzales (formerly Ashcroft) v. Raich (decision here), was seen by states' rights advocates as an opportunity for the Court to expand on its earlier 1990s decisions limiting federal power under the Commerce Clause (See Morrison and Lopez). The ruling was 6-3, with Thomas, O'Conner, and Rehnquist dissenting. This quote from David Bernstein, a law prof at George Mason, distills my disgust:

I was both amused and anchored by Justice Stevens's paean to the democratic process as the appropriate avenue of relief for advocates of medical marijuana at the end of his opinion. Every Justice who joined Stevens's opinion voted to prohibit states from regulating homosexual sex in Lawrence [which created a fundamental right to engage in homosexual sodomy] and (if they were on the Court at the time) voted to limit the government's power to regulate abortion in Casey [which reaffirmed Roe v. Wade]. Why was the democratic process not the appropriate avenue of relief for the victims of overzealous government regulation in those cases? It seems we do to some extent live under a system where the personal preferences of the Justices, having nothing to do with the history, text, or logic of the Constitution, dictate when the Supreme Court will or will not intervene to overturn particular regulations.

It appears for the time being that what appeared to be a states' rights revolution in the 1990s has fizzled out. Any further progress toward restoring proper controls on government will depend on future appointments to the Court.

There's not much I can say about the decision that hasn't already been said elsewhere, and I encourage those with any interest to visit the following sites for some informed commentary and reaction:

• Volokh Conspiracy (mostly libertarian-minded legal scholars--very good, and the group I agree with most)


• SCOTUSblog (appelate law firm gathers several prominent scholars from across the spectrum to comment on the decision)


• How Appealing (Legal Affairs blog links to several mainstream media reports, including some good NPR audio links (for those averse to reading))

My buddy Dave has an article on the White Sox' climb to the top of the American League. Perfectly happy with the White Sox' success, Dave questions, interestingly, the media's motivation in their coverage. His beef is that the media have lauded the Sox' successful use of "small ball" to win games while only noting their improved pitching as an afterthought. According to Dave, the media are using "the Sox' offensive style as a means to bash the alternative approach that many teams have applied successfully throughout baseball history, one more focused on on-base percentage and power hitting." More:

The Sox' favor of the small ball approach has garnered widespread acclaim precisely because many in the press despise the challenge to their hegemony and ritualistic clichés that the sabermetric, OPS-oriented approach has encouraged, as covered previously in this space at length. There's no end to belittling the sabermetric fans as computer nerds who can't possibly appreciate the true spirit of baseball, as though understanding statistics and loving the sport were mutually exclusive (Buzz Bissinger said as much in his new book Three Nights In August, a splenetic and thinly veiled response to Michael Lewis' 2003 bestseller Moneyball). The Sox are becoming poster children in this increasingly absurd drama. The actual reasons for their success are secondary to this story.

In the interest of full disclosure, I care nothing for this controversy. I only mention it because I am amused that the kingdom of sports coverage is just as prone to promote its own pet issues--or for that matter, to stroke their own sense of self-importance and superiority--as are media elites covering more mundane events.

In other news, Texas dropped the last two games in its three game series with Detroit that ended Thursday night--doing our best to help with the Tigers' undy five hundy numbers.

Europe has problems, of which the recent French and Dutch rejection of the proposed EU Constituion are only the tip of the iceberg. In addition to possessing a population of stinky people (why can't they just bathe?), Europe is stuck with a perpetually poor economy, an aging population, and increasing immigration from Muslim states.

According to David Brooks, the European welfare state and its entrenched entitlement system (aka Workers' Paradise) is the primary culprit. In this tale of European woe, Brooks finds a lesson for America:

Over the last few decades, American liberals have lauded the German model or the Swedish model or the European model. But these models are not flexible enough for the modern world. They encourage people to cling fiercely to entitlements their nation cannot afford. And far from breeding a confident, progressive outlook, they breed a reactionary fear of the future that comes in left- and right-wing varieties - a defensiveness, a tendency to lash out ferociously at anybody who proposes fundamental reform or at any group, like immigrants, that alters the fabric of life.

This is the chief problem with the welfare state, which has nothing to do with the success or efficiency of any individual program. The liberal project of the postwar era has bred a stultifying conservatism, a fear of dynamic flexibility, a greater concern for guarding what exists than for creating what doesn't.

Hmm. Makes me wonder if the West may be growing more amenable to suggested reforms of the modern welfare state. At home, the success of reform rests with the majority party, if they will just have the cajones to get something done.