Eminent domain and Terry Schiavo

[Sauron]

They're the same thing.

Don't take my word for it; take Tom DeLay's word:

http://www.washingtonpost.com/wp-dyn...063001082.html

Sensenbrenner said at the news conference that the federal government's money "will not be used to finance taking somebody's property from them to build a strip mall or a hotel or something simply because more tax revenue will come in as a result of an improvement." He said the decision, Kelo v. City of New London, "shows that the majority of the court had an utter disrespect for private property."

DeLay said as he left the news conference that he views the legislation as part of the review of congressional oversight of the judiciary that he requested after the death of Terri Schiavo, a Floridian who died March 31 after her feeding tube was removed despite congressional intervention to establish her rights in federal court.

"People are starting to understand what we've been talking about for the last two to three years," he said.

[D. Scarlatti]

He didn't really compare the two cases, as the thread title seems to imply, but he could have, since they're both examples of the federal judiciary abstaining from exercising its power over issues better left to the competency of state and local governments, which I had thought was the essence of the New Federalism.

But Tom DeLay has never been a competent authority on the Constitution.

[godfry n. glad]

Originally Posted by D. Scarlatti

He didn't really compare the two cases, as the thread title seems to imply, but he could have, since they're both examples of the federal judiciary abstaining from exercising its power over issues better left to the competency of state and local governments, which I had thought was the essence of the New Federalism.

Hmmm... But that prompts the question as to why the preeminent champions of the "New Federalism" were on the minority in the Kelo case.

Did they lose their way, like on Bush vs. Gore?

But Tom DeLay has never been a competent authority on the Constitution.

On what little I know of him, I'm inclined to agree.

[D. Scarlatti]

That's the thing. Most of the so-called schools of constitutional interpretation can be adhered to consistently only to a point, that point being a result a judge finds repellent to her political views.

Of course there are examples of judges holding their noses at their own results as well, but insisting they've arrived at where the legal logic leads despite their repugnance at the result. But the political climate these days demands people like DeLay find only the most conservative judges to fill vacancies, the battle cry being, "No More Souters, No More Kennedys," etc., etc.

And of course the sort of congressional interference in the judiciary DeLay is suggesting, the likes of which hasn't been seen since the Jefferson administration. I read somewhere DeLay wants to codify what the Constitution means by "good behavior," during which judges serve. That might be interesting to see.

Many people argue that it's predeominantly liberals and intellectuals that favor an independent judiciary, since its the last bastion of protection against the democratically expressive mob, as represented by people like DeLay. I don't think the framers were terribly fond of the mob either.

[D. Scarlatti]

It occurred to me the above may be the least coherent post I've ever made.

[ms_ann_thrope]

Originally Posted by godfry n. glad

On what little I know of him, I'm inclined to agree.

[godfry n. glad]

Originally Posted by D. Scarlatti

It occurred to me the above may be the least coherent post I've ever made.

But, wait...

I understood it. I think.

I don't think you have to go back to Jefferson. Just try FDR, he threatened "nine old men" with more justices. And, what's wrong with the impeachment process for justices, anyway? It has been used, from my understanding. It can be used again.

And, yes, the framers held a healthy distrust of the mob. If you look at the structure of our government, it's designed to slow thing down, to impede change. It's based upon the understanding that a desired change can come about, if all parties to the process agree to the change. The House was to be the voice of the people, and allowed for rapid change. The executive was given four year terms and the states (now the millionaire's club) were to be represented by senators of overlapping six year terms, a third at a time. Thus, lifetime justices are the most conservative brake upon change in the US.

I think it was actually inspired. I have no trust of the mob, either. The thing is, I have little trust for those who have come to own an imperial Presidency, or the representatives of plutocracy in the nation - the Senate. Also, a new power has arisen since, and acts to control all parties to some degree...corporations. The Constitution says little about corporations and any limitations upon their powers, and the Supreme Court of the land has given them unprecedented standing.

I'm torn over the whole "New Federalism" thing. I'm very disgusted with many of the roles which the federal government has taken on and why we need to send so much tax revenue to Washington to be frittered away and then be offered back pittances if we happen to have an effective representative who can bring home the pork barrel. It seems to me we've alloted way too much power to too far up the line. Department of Education at the federal level? Why? Shouldn't the defense industries be nationalized so we can get away from the overbilling and drive to create conflict to justify one's existence? Can we actually ever do away with the $420 US claw hammer?

Then, there's the understanding that returning power back to the states holds the promise of a far more provincialized and regionalized power structure. Like the ones which fostered marginalization and oppression of black humanity in the American South and the ghettos of the rest of the country. I remember that many of the civil rights I have now were expressed in a battle for those rights which, of necessity, took a national struggle and a national response, in the form of nationally recognized and enforced legislation, to merely change the course to a positive direction. Without that national presence, regional, state or local powers can be exercised to our deteriment.

Then I wonder, if it is left in the hands of those who would pervert it, is it worth saving?

[D. Scarlatti]

Great sign, ms.

That's a good post, godfry. I think all of that is true, and those are some of the important federalist issues.

I thought of FDR, but that was more of a blatant attempt by the executive. I had in mind the Judiciary Act wars that occurred during the Jefferson administration, and now that you mention impeachment, I believe the impeachment (and acquittal by the Senate) of Samuel Chase took place during TJ's presidency as well.

These are not new issues of course. I suppose in retrospect it's a judgment call as to whether the Jeffersonian attacks on the federal judiciary were as crass as DeLay's. The political climate in those days was just as laden with invective as it is now, if not more. Whether there was more substance to Jefferson's objections to the power of the federal judiciary than DeLay's, it's far too late for me to think about now. (Comparing DeLay to Jefferson is prima facie a joke in the first place, of course.)