On Kelo: Powerline v. Powerline

By Big Tent Democrat, Section Elections 2008
Posted on Thu Aug 09, 2007 at 12:26:54 PM EST
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Paul Mirengoff of Powerline praises McCain calling the Kelo decision "Marxist":

John McCain has done a service to the conservative cause by injecting the issue of private property rights into the presidential campaign. McCain's starting point was the Kelo decision ... McCain called this decision "disastrous" and contrary to our Constitution and our system. He found it more in line with the teachings of Karl Marx.

I guess that makes his Powerline cohort John Hinderaker a Marxist:

The principal threats to property rights lie elsewhere. In particular, regulatory actions often severely limit what an owner can do with his property. Unlike urban development projects, such regulations are often adopted in forums that are remote from, and unresponsive to, the political process. And what an owner generally hopes for in such situations is to be covered by the Fifth Amendment's guarantee of compensation for the loss of use of his property, which is automatic in the case of a condemnation. So it is a good thing that the Kelo decision has focused attention on the erosion of property rights; but, despite the critical consensus that has formed among conservatives, it is far from clear that the case was wrongly decided.

McCain of course is pandering, demagogic and wrong. But it is surprising to see one Powerline writer praising McCain's description, as that essentially labels his colleague a Marxist.

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On Kelo: Powerline v. Powerline | 61 comments (61 topical)

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McCain is behind Obama in Iowa-- (5.00 / 1) (#13)
by Geekesque on Thu Aug 09, 2007 at 01:46:10 PM EST

amongst Republicans.

How can you stand to read Pauerlein?

Stop the press! (1.00 / 1) (#3)
by jimakaPPJ on Thu Aug 09, 2007 at 01:03:32 PM EST

Two members of a blog disagree....

Wow.

Not the point (5.00 / 1) (#4)
by Big Tent Democrat on Thu Aug 09, 2007 at 01:07:37 PM EST

I would normally write "as you well know" but you know next to nothing so I can't write that in response to you.

The point is one memmber of a blog endorses and praises the vitrtual calling of another member of the blog a Marxist.


Watch out, (1.00 / 1) (#8)
by Wile ECoyote on Thu Aug 09, 2007 at 01:25:13 PM EST

Sailor would call that a OT troll attack.


It was an (5.00 / 1) (#10)
by Big Tent Democrat on Thu Aug 09, 2007 at 01:28:24 PM EST

on topic attack.


It was (1.00 / 1) (#12)
by Wile ECoyote on Thu Aug 09, 2007 at 01:39:15 PM EST

but it was also pretty low, something I would not expect from you. I will save it to use later.


: Jim (5.00 / 1) (#14)
by Big Tent Democrat on Thu Aug 09, 2007 at 01:57:29 PM EST

has a track record here.
This was more of the same.

You brought the subject up. (1.00 / 1) (#20)
by jimakaPPJ on Thu Aug 09, 2007 at 03:44:00 PM EST

As well you know, you brought the subject up.

Based on your reactions and personal attacks on people who disagree with you, maybe it is news to you. But disagreement on political points is nothing to get excited about in my liberal world.

As for your snarky insult, there is nothing new there. You routinely do it.


I brought up (5.00 / 1) (#21)
by Big Tent Democrat on Thu Aug 09, 2007 at 03:50:53 PM EST

right in the first sentence, that McCain dishonestly called the Kelo decision Marxist.

If you are endorsing McCarthyism, please do so forthrightly.


BTD (1.00 / 2) (#22)
by jimakaPPJ on Thu Aug 09, 2007 at 04:46:29 PM EST

Typical Leftie. Any disagreement is McCarthyism.

BTW - I am glad you decided you brought the subject up.


No Jim (5.00 / 1) (#24)
by Big Tent Democrat on Thu Aug 09, 2007 at 04:52:03 PM EST

Not disagreement, demagogic labelling of those who disagree with you as "Marxists" is McCarthyism.

Do you even know who McCarthy was?


Know Who He Is? (5.00 / 3) (#25)
by squeaky on Thu Aug 09, 2007 at 05:16:48 PM EST

ppj is part of the McCarthy fan club.


Just knew someone would retrieve that. (5.00 / 1) (#26)
by oculus on Thu Aug 09, 2007 at 05:28:44 PM EST

That explains it (5.00 / 1) (#27)
by Big Tent Democrat on Thu Aug 09, 2007 at 05:31:39 PM EST

BTD - Here is one of your fans (1.00 / 1) (#50)
by jimakaPPJ on Thu Aug 09, 2007 at 07:37:04 PM EST

Posted by Squeaky at September 19, 2005 11:19 PM
Rove never needed proof for his smear machine, why should I.

Don't you just love it?

Kinda defines things, eh??


: The link seems (none / 0) (#53)
by Big Tent Democrat on Thu Aug 09, 2007 at 08:06:11 PM EST

conclusive proof to me.

BTD (1.00 / 1) (#49)
by jimakaPPJ on Thu Aug 09, 2007 at 07:33:54 PM EST

I find your claims to be funny. My comment was, and remains the same. If you are correct, and Decon has raised some issues in that respect, you have two people on the same blog in disagreement.

You tried to act as if that was somehow, bad.

I find it refreshing. It is, by and large, the BTD's of the Internet who can't stand disagreement.

So quit with the MaCarthy strawman for the benefit of your fans. The rest of us understand your act, and find it somewhat amusing.


You have no point Jim (5.00 / 2) (#52)
by Big Tent Democrat on Thu Aug 09, 2007 at 07:51:47 PM EST

Please consider trying to follow the discussion.

Indeed, Decon and I have had a terrific discussion of a related issue after he acknowledged my point.

His thinking was broader the my rather basic post.


No ppj (none / 0) (#51)
by Edger on Thu Aug 09, 2007 at 07:51:12 PM EST

The rest understand your act. Trying to position yourself as a liberal is hilarious.

But then one neocon fantasy is that neocons are liberal. Another is the fantasy that people don't see the fantasy.

And most are sure you are not dumb enough to believe that people are dumb enough to not see through you.


edger and his definitions (1.00 / 1) (#54)
by jimakaPPJ on Fri Aug 10, 2007 at 07:38:28 AM EST

You are not a Liberal. You are an anti-war Left winger who does not embrace free speech which is a core value.

How do I know this??

by Edger on Thu Jan 25, 2007 at 02:17:12 PM EST ......
Anyone who wants me or others to be constrained from saying things that insult so that they will NOT feel constrained from doing things that kill, is trying to draw equivalence where there is none, and deserves absolutely no respect, civility, or any kind of tolerence whatever.

No. (none / 0) (#55)
by Edger on Fri Aug 10, 2007 at 07:50:11 AM EST

I'm all for free speech. Unrestrained free speech.

Anyone who wants me or others to be constrained from saying things that insult so that they will NOT feel constrained from doing things that kill, is trying to draw equivalence where there is none, and deserves absolutely no respect, civility, or any kind of tolerance whatever.

I have no respect whatsoever for those who would try to restrain free speech, or for those like you who want the freedom to kill, and think it is equivalent to freedom of speech.


Not really. (1.00 / 1) (#56)
by jimakaPPJ on Fri Aug 10, 2007 at 09:37:59 AM EST

First of all, (none / 0) (#67)
by Edger on Thu Jan 25, 2007 at 03:18:25 PM EST
Do we offer them respect? Absolutely not. We do our best to marginalize and get rid of them.

Nope. What you are saying is that you do your best to shut them up. That isn't supporting free speech, it is demanding the right to say what you want amd silence the other side.

And note that the previous quote was at 2:17PM. This one is an hour later and is a clarifiation of the previous.


No. (none / 0) (#57)
by Edger on Fri Aug 10, 2007 at 09:56:44 AM EST

You're free to open your mouth and marginalize yourself all you want. I'll even help you marginalize yourself by not responding to you anymore so that you have all the bandwidth you need to do it. You have my full support.


Edger (1.00 / 1) (#58)
by jimakaPPJ on Fri Aug 10, 2007 at 12:05:43 PM EST

That you feel upset by publication of your words is understandable.

I would not want to be identified as writing them.


hahahahahaha (5.00 / 1) (#60)
by Edger on Fri Aug 10, 2007 at 08:35:33 PM EST

: hahahahahhaha (5.00 / 1) (#61)
by squeaky on Fri Aug 10, 2007 at 08:57:04 PM EST

At least two out of three (none / 0) (#1)
by libertarian soldier on Thu Aug 09, 2007 at 12:36:13 PM EST

Having read the blogging at Volokh, I am not sure what McCain said about Kelo was wrong--but I am not a lawyer.
Pandering and demogogic goes with the (R).

: You have a link? (none / 0) (#11)
by Big Tent Democrat on Thu Aug 09, 2007 at 01:30:04 PM EST

No self respecting lawyer would write what McCain said.

Slightly OT: local land use advisory board (none / 0) (#2)
by oculus on Thu Aug 09, 2007 at 12:55:42 PM EST

voted to permit Blackwater to install a "police officer training" facility in a remote area of eastern San Diego County. Board is facing impeachment--a first. Blackwater says their contract w/ the U.S. Defense Dept. requires the facility be w/i 1 hour of coast in S.D. The land in question was formerly a ranch.

not Marxist (none / 0) (#5)
by eric on Thu Aug 09, 2007 at 01:14:38 PM EST

I would just like to say that if Kelo> was at all Marxist, I would have agreed with it.

I don't know anymore (none / 0) (#6)
by Deconstructionist on Thu Aug 09, 2007 at 01:21:53 PM EST

than what you posted here Mirengoff and Hinderraker (not to be a bigot, but, as an aside, those names sound like Hollywood scripts names for generic Nazis) but you seem to greatly overstate the extent of any disagreement there.

Hinderraker's position seems to boil down to condemnation with compensation of real property for uses that are not strictly speaking "public" uses isn't as bad as government regulation that impedes people from maximizing ther potential profit without compensation. I'd say that Hinderaker's obvious point is about as far from Marxism as it gets. His opinion that Kelo may not have been "wrongly decided" seems based on acknowledgment of competing views of constitutional jurisprudence than support for the POLICY which Kelo upholds.

I see nothing nothing in that snippet to suggest that Hinderaker supports government evicting people from their homes so other people can put the property to other higher government revenue producing private uses. Given that, I don't see how Mirengoff can be portrayed as calling his colleague a "Marxist."

Hinderaker (none / 0) (#15)
by Big Tent Democrat on Thu Aug 09, 2007 at 01:59:49 PM EST

makes clear in his article that he believes Kelo was governed by Berman. Which it was.

McCain called Kelo Marxist.

Mirengoff applauded this McCarthyite smear.

Hinderaker agreed with the Kelo Court and thus was "Marxist."

I think this is fairly easy to follow.


Well as I said (none / 0) (#16)
by Deconstructionist on Thu Aug 09, 2007 at 02:15:38 PM EST

I know only what you posted here (and frankly thisis not quite momentous enough to motivate further research into Herr Hinderaker's writings).

My point remains. Hinderaker seems quite obviously to be saying that he views economic regulations which deprive people of the maximum benefit of their property WITHOUT compensation is worse than the use of eminent domain and condemnation of property WITH compensation.

That is an entirely different thing than saying that that he thinks the use of eminent domain and condemnation of property WITH compensation to allow government to take property from an unwilling person and give or sell it to another whose use of the property will generate more government revenue is a good thing.

As a lawyer, you certainly know that acknowledging the jurisprudential basis for a decision is not even close to tantamount to favoring the POLICY which brought the case before the court.

One can and obviously many do simultaneouly belive Kelo was decided correctly in light of precedent and believe that just because it isn't unconstitutional to take one person's private property and give it another person that it shouldn't be done because it is bad policy.

I can acknowledge that it isn't unconstitutional for the government to do some things to people -- such as execute them-- based on Supreme Court precedents without agreeing with the policy.

You make my point (none / 0) (#17)
by Big Tent Democrat on Thu Aug 09, 2007 at 02:21:44 PM EST

McCain and Mirengoof are outrageous in labelling the Kelo decision "Marxist" since, as you say

"As a lawyer, you certainly know that acknowledging the jurisprudential basis for a decision is not even close to tantamount to favoring the POLICY which brought the case before the court."

Since that is precisely what the Kelo Court said how could Kelo be labelled Marxist by any honest person. Hoew could a politicans labelling it Marxist be applauded by any honest person?

Indeed, Hinderaker's article, for which I provide a link, is intended to debunk the very type of dishonest demogoguery that Mirengoff praises.

I have no idea why you have decided to defend dishonest demgoguery when you yourself acknowledge

"One can and obviously many do simultaneouly belive Kelo was decided correctly in light of precedent and believe that just because it isn't unconstitutional to take one person's private property and give it another person that it shouldn't be done because it is bad policy."

Indeed, the Kelo Court does not discuss the policy, it is not a matter for the courts. McCain and Mirengoff attack the Kelo Court outrageously.

Why do you defend that dishonest attack?


If you want to limit yourself (none / 0) (#18)
by Deconstructionist on Thu Aug 09, 2007 at 02:33:48 PM EST

to saying it is outrageous hyperbole to label Kelo a "Marxist" decision that is one thing.

That's not what the point of your initial post seems to be though. You seem to be trying to create a wide divergence between Mirengoff and Hinderaker to the extent the former is calling the latter a "marxist."

At most, you might be able to spin it as Hinderaker suggesting it is hyperbole for Mirengoff or McCain to call the decision Marxist.

If I say "progressive taxation is not Marxist" and is constitutional based on precedent and someone else says it is Marxist, I would not suggest that person is calling ME a Marxist, particularly when my writing tends to suggest that I not only don't like "progressive taxation" but don't even like taxation generally.

That is the OBVIOUS parallel to what Hinderaker wrote. He obviously thinks "Takings" should be viewed MORE broadly to encompass "regulatory takings" in addition to physical takings which were the subject of Kelo. That he acknowledges the law may not be on his side in terms of constitutional jurisprudence even on what he views as the lesser evil just makes him somewhat reasonable .


That was the entire point of my post (none / 0) (#19)
by Big Tent Democrat on Thu Aug 09, 2007 at 02:46:53 PM EST

It is obvious.


Thanks. (none / 0) (#28)
by Gabriel Malor on Thu Aug 09, 2007 at 05:48:58 PM EST

Decon, your points are well taken...by everyone except BTD, who would rather put words in the powerlinebloggers' mouths.

I, already knowing the outcome, decided it wasn't worth the time it would take to explain it to BTD. But I'm glad you did, and impressed that you managed to do it with patience and courtesy.


So was the Kelo decision Marxist? (none / 0) (#29)
by Big Tent Democrat on Thu Aug 09, 2007 at 05:55:16 PM EST

Does Hinderaker think it is Marxist?

Cuz McCain and Paul Mingeroff do.

Frankly, if you and Decon choose to be obtuse that is your business.

But Decon's entire explanation butressed my point, it did not in any way contraduct my point.

But I find you ignore what is inconvenient.

Decon's patience was wasted on me as he was telling me what I already knew and stated in my post.

Perhaps you needed Decon's explanation to get my pooint, but more you appear to still not get it. I can not say for Decon. He has not returned to the thread.


to answer your questions (none / 0) (#33)
by Deconstructionist on Thu Aug 09, 2007 at 06:10:51 PM EST

I can't speak for anyone else but I don't think Kelo is a "Marxist" decision. Beyond the obvious reality that the use of eminent domain in Kelo and other such instances serves to further enrich wealthy private actors at the expense of the rights of the less powerful, i don't advocate calling everything to the "Left" of my views "Marxist" or communist or whatever (or everything to the "Right" of my views "McCarthyite" or "Rethuglican" or whatever). I don't think such name-caling serves a good purpose regardless of source or target.

I do think it is a very bad decision and an opportunity missed for the court to overrule bad precedent and expand individual rights.

Slavish adherence to precedent is often as bad or worse than disregard of precedent. Stare decisis is a valid principle for "guiding" courts but it should not be used as an excuse to do the wrong thing over and over again. Sometimes, the Court needs the wisdom and courage to reject bad law written before.


What you are arguing for (none / 0) (#35)
by Big Tent Democrat on Thu Aug 09, 2007 at 06:24:10 PM EST

is ignoring precedent, history and the Constitution.

Certainly it would not be judicial modesty to do such a thing.

Why overturn decisions of the majority in the legislature?

I know you are not a conservative who abhors judical activism, but conservatives are and here they are hypocritically arguing for judicial activism and using false demagogy to do it.

I also must quibble with your characterization of the issue as one of individual rights. It is clearly a a government power issue.

The Right is arguing for limiting the government's right to invoke eminent domain, in express contradiction to the history of Anglo-American jurisprudence and the 5th Amendment.

After all, just compensation is guaranteed. What individual right do you see implicated?


Two sides of the same coin-- (none / 0) (#41)
by Deconstructionist on Thu Aug 09, 2007 at 06:38:13 PM EST

I also must quibble with your characterization of the issue as one of individual rights. It is clearly a a government power issue

The Bill of Rights exists precisely to protect individual rights from the power of government.

I'm not a radical libertarian, but defining "public use" to mean essentially anything a particular government body chooses to so define in a statement of legislative intent eviscerates entirely the PROTECTION of individual rights it would seem the takings clause was obviously intended to accomplish.


and.. (none / 0) (#42)
by Deconstructionist on Thu Aug 09, 2007 at 06:43:48 PM EST

The right protected is the right of an individual not to have his private property taken from him by government when he has done no wrong unless the taking is for a "public use" AND he receives just compensation.

The Supreme Court has essentially declared that "public use" means whatever government says it means-- even if it is giving the property to another individual for his enjoyment and profit so long as the government doesn't neglect to make a self-serving declaration it considers the alternative use better for it. i don't care how long and ancient the line of precedent supporting that position may be-- it's wrong.


: It is a declaration (none / 0) (#46)
by Big Tent Democrat on Thu Aug 09, 2007 at 06:56:41 PM EST

consistent with the general principle of judicial modesty on legislative purpose outside of the common understanding of individual liberites.
You basically are arguing with the New Deal it seems to me.

Sure (none / 0) (#45)
by Big Tent Democrat on Thu Aug 09, 2007 at 06:55:24 PM EST

but the phrase "public use" is the thinnest of reeds to hang this particular hat on.

If the government keeps ownership of the property, and does the exact same thing, how is individual liberty protected?

To ask the Court to go back on centuries of jurisprudence of deference to legislative judgments on "public use" is too radical for my tastes.


And I do realize (none / 0) (#31)
by Big Tent Democrat on Thu Aug 09, 2007 at 05:57:57 PM EST

that the chances of you actually answering my question is nil.

You have a history of ignoring pointed question that demolish your position.

Decon I have mnore hope for.


I think the people who matter get the point (none / 0) (#32)
by sarcastic unnamed one on Thu Aug 09, 2007 at 05:59:10 PM EST

whether or not BTD ever does.


The people who matter? (none / 0) (#34)
by Big Tent Democrat on Thu Aug 09, 2007 at 06:19:53 PM EST

the point?

Who are these people? What is the point they get?


Delicious, BTD, (none / 0) (#37)
by sarcastic unnamed one on Thu Aug 09, 2007 at 06:28:57 PM EST

just delicious.


: Delicious is the point? (none / 0) (#39)
by Big Tent Democrat on Thu Aug 09, 2007 at 06:35:49 PM EST

Or the people?

BTW (none / 0) (#30)
by Big Tent Democrat on Thu Aug 09, 2007 at 05:56:29 PM EST

It is not hyperbole to call the Kelo decision Markist. It is a demogogic falsehood.


Kelo (none / 0) (#7)
by Wile ECoyote on Thu Aug 09, 2007 at 01:22:35 PM EST

was, imo, the worst decision to come out of the SC in a while.

Since Berman presumably (none / 0) (#9)
by Big Tent Democrat on Thu Aug 09, 2007 at 01:27:49 PM EST

You see the Berman case, decided in 1954, controlled Kelo.

Or maybe the Hawaii case from 1982, that reaffirmed Berman.

Such hyberbole.


Nutshell version of my opinion (none / 0) (#36)
by Deconstructionist on Thu Aug 09, 2007 at 06:28:50 PM EST

Ambiguity in the Constitution (and I agree "public use" in "nor shall private property be taken for public use, without just compensation" requires some interpretation)
should be interpreted in favor of the rights of individuals and against the power of government to infringe those rights.

I see no ambiguity (none / 0) (#38)
by Big Tent Democrat on Thu Aug 09, 2007 at 06:35:13 PM EST

personally.


I would also ask you (none / 0) (#40)
by Big Tent Democrat on Thu Aug 09, 2007 at 06:38:12 PM EST

if you believe it is consistent with common conservative judicial philosophy to seek the type of interpretation you are favoring here?

Do you not agree with me that conservative legal crticis are being hypocritical here?


Don't think most political people (none / 0) (#43)
by Deconstructionist on Thu Aug 09, 2007 at 06:51:38 PM EST

are consistent or honest when debating these issues. I observe that almost everyone wants the courts to be "activist" when activism serves their position on one issue and "restrained" when restraint serves their position on a different issue.

The guiding principle for most people is let the legislatures decide if the legislatures vote the way I want and have the Courts rule against the legislatures when I lose in the legislatures.

Wait up (none / 0) (#44)
by Big Tent Democrat on Thu Aug 09, 2007 at 06:53:04 PM EST

It is not the Left that rails against activist judges.


Sure it is (5.00 / 1) (#47)
by Deconstructionist on Thu Aug 09, 2007 at 06:56:58 PM EST

remember when substantive due process was employed to block New Deal legislation?

or more recently, people exorcising Scalia and Rehnquist for a host of opinions ofn federalim and other issues?

Or Bush v. Gore?

with a bad pun to call it a night, it all deepneds on whose ox is being....


Sure (none / 0) (#48)
by Big Tent Democrat on Thu Aug 09, 2007 at 07:05:40 PM EST

but not because of the activism but because it is nuts.


: BTD (none / 0) (#59)
by Deconstructionist on Fri Aug 10, 2007 at 02:40:11 PM EST

Stare decisis is, as I said, a principle to guide the court not THE RULE it should follow.
Plessy v. Ferguson, was cited as precedent in 1954, and it inarguably was precedent and directly on point. Do you accuse the Brown v. BOE, Court of ignoring the Constitution and history or do you applaud it for rectifying a wrong?

What you believe the Supreme Court should decide (none / 0) (#23)
by Molly Bloom on Thu Aug 09, 2007 at 04:50:25 PM EST

economic policy?! Will the law clerks now hold hearings to to set economic policy of the states? Scotus will now make the decisions normally left to the legisaltures under our constitutional scheme of things? Whatever happen to the conservative view that SCOTUS should not legislate from the bench?

SCOTUS said they were ill equipped to determine if this was good economic policy or not and that this was a legislative function; further if voters didn't like what their legislature did, use the ballot.