Libertarian? Or Fascist-Light?
The shooting death by police of Ferguson, MO teenager Michael Brown, and what has happened in the aftermath, has been blanketing the news for the past few days. It’s a story about race, but it’s also become a story about the power of the state and how it’s wielded, and against whom.
So my question is this: Where are the libertarians?
– Why aren’t libertarians talking about Ferguson?, Paul Waldman, Plum Line, Washington Post, yesterday
The answer to the question that the title to that post asks is: they are. Libertarians are talking about Ferguson.Waldman’s question addresses a linguistics problem, a misappropriation of a particular ideological term, “libertarian,” by those who ascribe to a narrowly prescriptive ideology that adopts extreme economic libertarianism and certain aspects of fascism.
It is a curious brand of fascism that is peculiarly American, in that it artificially distinguishes between federal powers and state and local ones. A veritable foundation of this ideology formally or tacitly authorizes the use of state and local government police powers—by police, prosecutors, judges, prison guards–to engage in wholesale violations of American constitutional and international human rights. Federal prosecutors and federal judges engage in abuses, including on presumably-rare occasions of actual illegality, but now, finally, at least there’s the possibility of actual scrutiny of federal prosecutorial excess. There remains no working mechanism by which federal or state judges will be investigated for actual illegality in relation to their judicial office, unless the conduct involves an overt monetary bribe or express monetary extortion; judges themselves operate within a statutory system whose very essence is cover-up by their colleagues, and every attempt, including by members of Congress, Republican and Democrat, to change this statutory sham vis-a-vis federal judges is batted down with cries from several Supreme Court justices, including the two Clinton appointees, about judicial independence. (Freedom! Liberty! Judicial Independence!) As if an independent office of inspector general, as statutory proposals would establish, couldn’t distinguish between unethical or outright illegal conduct and, well, everything else. And wouldn’t be forced to do that.
About a month ago, Simon Lazarus of the Constitutional Accountability Center wrote an article in The New Republic titled “John Roberts’ Supreme Court is the Most Meddlesome in History” and subtitled “How radical libertarianism is reshaping the bench.” I remember thinking when I saw that article that the primary title is correct but the subtitle is not. Certainly there are some radical libertarians—those who want to eliminate virtually all taxes, federal and state, an virtually all government regulations and civil and criminal prohibitions, federal and state, and who also are, as Waldman puts it, talking about Ferguson. And who want to dismantle the prison-industrial complex. But best as I can tell, they’re not Republicans, and they’re certainly not federal judges, much less federal Supreme Court justices. Accepting their pose as libertarians, without the modifying adjective “economic,” is buying their marketing campaign.
Freedom! Liberty! Libertarianism! The new and improved variety, marketed as the late 18th century strain. Back from the future. I guess.
What most of this crowd actually is is sort of classic-fascist-light, not libertarian. By which I don’t mean that they’re Nazis; Nazism was (and is) only one brand of fascism. I mean fascism more along the lines of the Benito Mussolini or Francisco Franco variety—a pairing of a muscular state police force left to its own (and the dictator’s) devices, and moneyed interests whose support the dictator an his party needed. Modern U.S. neo-federalism, a.k.a. “states’ rights!”–i.e., the right of state and local government officials and employees to violate individual, non-Republican humans’ constitutional rights—is libertarianism only in a George-Orwell-comes-to-Madison-Avenue sense, but it underpins much of Tea Party/Supreme Court libertarianism, if only ostensibly.
One of the most stunning sentences I’ve ever read in a Supreme Court opinion, a sentence that has not received nearly the amount of attention in the general news media or by Democrats that it deserves, is John Roberts’ express statement in the majority opinion in McCutcheon v. FEC, this year’s Citizens United sequel, that extremely wealthy campaign donors become “constituents”–constituents, in the literal election-law, voter-ID sense–of members of Congress not by living in the senator’s state or in the representative’s district but instead by buying access and the right to author proposed legislation. Ordinary folk are constituents only of the elected officials in whose voting jurisdiction they have their primary (for most people, their only) residence, but the Koch brothers are the constituents not just of Kansas’s senators and Wichita’s congressional representative but also of any other senators and congressional representatives that they choose to co-opt as their legislative proxy, for a fee. This, Roberts said, is at the heart of our democracy.
Which indeed it now is, formally and officially, as per the Supreme Court. It’s at the very heart and soul of our democracy these days–our democracy, alone among democracies, since ours is the only democracy in which this flavor of freedom!, liberty!, is packaged as libertarianism. It’s a specialty flavor that would be recognized by 1930s Europeans for the albeit-milder iteration of the political ideology that it really is. And that is recognized, I’d bet, by most close observers of the Supreme Court’s state-courts’-and-state-prosecutors’-and-local-police-officers’-and-state-and-local-prison-guards’-rights-to-violate-individuals’-constitutional-rights-because-the-Constitution’s-structure-requires-it jurisprudence.
This ideology is libertarian only as some characters in Lewis Carroll’s novels, or the Koch brothers, would define that word. Or as five current Supreme Court justices do, as suits their focused interest of the moment. Or of the Conservative Legal Movement era, which has in fact been very focused for more than three decades now. So any moment will do.
Pick your moment. Any moment. They sure do. Just call what you’re doing anything but what it actually is.
We are seeing Bell and Hofstadter’s descriptions of radical reactionarianism and the paranoid style reach full fruition.
The Tea Party brand of libertarianism is little more than an anti tax reactionary attitude based in selfishness and political narcissism. At best libertarianism is an immature philosophy based on the totally unrealistic principle of noncoercive interaction. In that form it’s foolish Utopianism.
In the toxic Tea Party edition it’s really a quite coercive force that endorses state power solely for the protection of the property rights of select groups.
You are absolutely right in your comparison to Mussolini’s brand of fascism. The shooting of Brown and the reaction from many on the Right both to the shooting and the response of the local community exposes the utter fatuousness of the “libertarian” Right.
The Roberts court is a reflection of Gilded Age ideology on steroids. Preferred and economically empowered groups simply get a judicial endorsement of the power they derive from their economic supremacy. There’s nothing remotely libertarian in the philosophy, there’s actually no philosophy just a baldly coercive use of judicial power as a means of securing position and power.
Except Mussolini’s version was anti-capitalistic in restoring the aristocracy, who didn’t like capitalism.
“Right-Hegelians’ in the US are whites who were seduced by the Calvinists and Sephardic traditions of usury(capitalism). Mussolini was no fan of them.
“Libertarianism” IS Facism. It is the rule of the strongest, where the only rule is that the ordinary people are not allowed to cooperate to resist the thugs who ARE the government. Don’t worry about “government” vs “capitalism.” When the capitalists become the government there is no distinction between them and the old “aristocracy.”
The foolish little Libertarians, who think they are ushering in a utopia where government “force” is no longer used againt them, are about to find out that government force was the only thing that protected them from the thugs…. who have now become “the government.”
This does not mean, oh foolish libertarians, that I was ever fond of the draft, the wars, the police, and the “moral” laws that allowed the people in their stupidity to act as their own jailers.
“Thomas More: …And when the last law was down, and the Devil turned around on you–where would you hide, Roper, the laws all being flat? This country’s planted thick with laws from coast to coast–man’s laws, not God’s–and if you cut them down…d’you really think you could stand upright in the winds that would blow then? Yes, I’d give the Devil benefit of law, for my own safety’s sake.”
― Robert Bolt, A Man for All Seasons
John, I was careful not to use the term capitalism, or plutocracy, or anything of that sort in mentioning Mussolini and Franco, because, although I’m no expert on the subject, I don’t think they were all that particular about what moneyed interests funded them and their party. Although the aristocracy throughout Europe declined precipitously, in wealth and land ownership, after WWI, capitalism in Italy was, I believe, largely comprised of petite bourgeoisie in Italy, so the inherited wealth of the aristocracy probably was his only option. A marriage of convenience, really.
When I want to picture the nature of fascism, I look at the symbol of the fasces — the slender rods bound tightly together, holding the head of an axe. The rods are the ordinary people of a nation, strapped together, neither free to move nor escape, whose collective power wields a weapon. Do the rods themselves wield the weapon, or decide who is the enemy? No, their bindings allow them no choice in how their power is directed.
Libertarianism is not fascism, but without care most forms of government will morph into the fascist format. Libertarianism would remove, as unnecessary, many of the controls that prevent that metamorphosis.
Dale, I think you make the same mistake that Robert Draper, author of the already-infamous New York Times Magazine cover story last week titled “Has the ‘Libertarian Moment’ Finally Arrived?”, glaringly makes. Both of you conflate economic libertarianism and socio-cultural libertarianism, an error caused mainly by semantic happenstance; they are, in important respects, counter forces, and in any event, don’t have much to do with each other.
Draper’s article is just plain silly. The theme of it is that Millennials think “the Obama economy doesn’t work for them”; ergo, they demand a return to the Bush economy and related policies. More tax cuts for the wealthy and for corporations! Kill Dodd-Frank! Get rid of all financial-industry regulations—and while they’re at it, all environmental regulations! Go, the oil, gas and coal industries! Go, Koch brothers. Go, Citizens United!
Paul Krugman and Jonathon Chait both deconstruct that article, btw, at
http://www.nytimes.com/2014/08/10/magazine/has-the-libertarian-moment-finally-arrived.html?ref=magazine&_r=0 and http://nymag.com/daily/intelligencer/2014/08/america-is-not-turning-libertarian.html?mid=twitter_dailyintelligencer.
Spot-on, Mark, about the Tea Party and the Roberts Court.
not being an intellectual i have no idea what you are talking about.
Libertarianism as espoused in this country is the road to facism.
Telling people fairy tales is how the thugs take power.
Whatever the intellectuals talk about.
and if you think i am echoing Draper, as you describe him, you can’t read.
Some contemporary examples of “Libertarianism” of the type you are opposing here would be helpful.
(Modern U.S. neo-federalism, a.k.a., “states’ rights!”–i.e., the right of state and local government officials and employees to violate individual, non-Republican humans’ constitutional rights)
The only member of the supreme court who embraces a broad reading of the 14th amendment’s privileges and immunities is Thomas. All others subscribe to a limited Incorporation of the BOR including Due Process protection of certain fundamental rights, though there is wide disagreement about what comprises fundamental rights.
Your reference to Fascism is way off target, as Mussolini was opposed to people striving only their individual gain and to the concept of divided government which is what protection of “state’s rights” and federalism are meant to achieve. .
Seems to me that your complaint is against what I would call crony capitalism in which state and local officials scheme with wealthy supporters to the detriment of the greater part of their constituents, while hiding behind “states rights” and local traditions. However the problem is not as great as it was say a century ago with whole towns being owned by operators of coal mines (as in Matewan). From my point of view the crony capitalists that are in bed with the federal government and trampling on states rights and individual persons are the larger problem today.
Lastly, Crony capitalists aligned with state and local governments, such as in the Kelo eminent domain case, were opposed mostly by Libertarians, but only meekly by Progressives. Same was true in Raich, though that case did not involve crony capitalists (unless one believes that drug manufacturers were behind opposition to medical marijuana, maybe they were for all I know), just run of the mill federal/congressional power grab, which Progressives, though no doubt sympathetic to Ms Raich’s plight, were way too timid in opposing lest they undercut the federal power that on occasion they wish to harness for other uses.
I should have added that I agree with your “constituent” remark, that was yet another Roberts’ speak-O.
Also agree with your rebuttal to Coberly, and get that you are not trying to start a flame war with Libertarians in general, but I think that your article would benefit from some concrete examples of the type of economic libertarianism that you are opposed to.
This caught my eye.
“about judicial independence. (Freedom! Liberty! Judicial Independence!) As if an independent office of inspector general, as statutory proposals would establish, couldn’t distinguish between unethical or outright illegal conduct”
Judicial independence as they determine it to be for those associated with the keeping of the law. Where are these justices now when Ferguson police announce they are further analyzing the incident? Where will they be when the incident is brought before them for “fair and impartial (sic) hearing?” The problem as I see it is the impartiality of judges to the law itself as it is applied to themselves and those who enforce it. There is no real justice for them as it is interpreted by them.
As we well know one person previously charged causing the death of another gets out on bail and later paroled and two others who played lesser roles are jailed and later sentenced to prison. The difference being one was an lawyer, an officer of the court hooked on drugs and who embezzled tens of thousands and of the other two, one was his mule and the other his dealer.
Very much the same will play out in Ferguson. There are two different court systems. One for the court and those who buy their influence and the other for every day citizens.
i guess it was me trying to start a flame war with Libertarians. Unfortunately words mean different things to different people.
I do NOT mean whatever it is you think you mean by “libertarian.” From what I have heard people who call themselves libertarians are about two or fourteen years old and think they can have a country run without force or taxes or laws they don’t like.
From what I have seen these people are encouraged by people who call themselves libertarian but who vote in congress for laws that remove all regulation and restraint from the folks with big money.
It is my contention that these people use “libertarian” to get the votes of the aforesaid fourteen year olds… including those who think Ayn Rand was a philosopher. To the exent these people succeed, they are NOT ushering in a utopia of peace and freedom, but ushering a reign of rule by the strongest. And it won’t be them, and it won’t be nice.
It will look like the Facism of Mussolini and Hitler, whatever they called themselves, whatever lies they told, whoever they got to give them money..
Well, maybe it won’t look exactly like that: no brown shirts. But the laws will all be ad hoc and will work only to protect the strong against the weak.
No doubt I am failing to make a distinction you think important. That was my point.
Tea partiers are tools of Hayek/Misies libertarians and other accumulative interests.
Hayek/Mises libertarians libertarians are Lockeian worshippers of property, ‘property is the basis of liberty’, whatever “founding father” dogma that may imply. Rather selfish.
The coincidence of Road to Serfdom to 1944 seems to me to advocate rearming the wehrmacht in 1945 to go after the Bolshevist.
In short libertarians are proto-Nazis extremism to keep the Bolshevists from defending the coomons……..
Pope Francis has a criticism of accumulative capitalism (social darwinism) and the creation of helpless who are exploited by the neo fascists claiming to be libertarians.
Militarized police are the tool to protect hoarded property from the helpless, who would not be so helpless if not for the militarized police.
It has always been one law for the propertied (libertarian) and one for the helpless.
it makes me feel better to hear someone else is parsing reality about the way i do.
i think…. think…. that what Beverly did was say that “the are not Libertarians” they are “Facists-light.” When I agreed with her she disagreed with me, because she seems to take “Libertarians” at their word… or words… and I try to judge them by what they do, knowing or unknowing.
And from time to time suggest that those who are really still children take a hard look at who is doing them.
Libertarians are very excited that the fascists are talking about them.
Most of the libertarians I knew were retired military, old system GS employees, etc.
I called them ‘libertarians for empire’.
The local tea partiers I know keep spouting Locke, out of context federalists memes and all that slaveholding founding father stuff about the sanctity of property.
I think Hayek was selling the idea, extant among some Americans toward the end of WW II that the real enemy was the Bolshevist, who would endanger property.
They evolved into the Birchers etc. Whom are active today as libertarians and tea party.
All the accolades about followers of Ayn Rand being like Tolkien enthusiasts are approrpiate to libertarians.
Fascism and Nazism appealed to a lot of different views.
What is more selfish: wanting to control one’s own property, or wanting to control another’s?
you are hopeless. your comment assumes a distinction that no one makes. and you ignore what I, at least, said.
You want to control your own property. Fine. The law gives you a right to do that. Of course the law and the operations of the law, and the cooperation of your neighbors is all made possible by taxes. But as long as you regard “your money” as your sacred property you will never get what it takes to live in a world with more than one person in it.
And just so you don’t get me completely wrong
The law is a dangerous thing, Government is dangerous. The only thing more dangerous than government is no government. You do not advance the cause of freedom by making government too weak to protect you from the thugs.
I would rather control greed, which is not a virtue.
So, a limit on the 1% is socialism, while the suffering of the rest is acceptable fascism!
Or by making government so strong that it becomes the thug.
The federal government claiming that the commerce clause grants Congress the authority to compel commerce (as in NFIB) is way over the line towards the government itself being the thug. Thank God only 4 justices on the court bought that happy horsebleep.
A state government claiming that it has the power to grab a person’s home (as in Kelo) because a corporation offers to pay higher taxes on that property is a thug. A supreme court that sides with such a state, is a thug.
A government that militarizes the police is a thug.
A government that spies on its citizens is a thug.
A government whose Congress writes a law a particular way, sells it to the public as one thing, then argues that it is another thing altogether before the court (which aids and abets in the subversion of our democracy) is a thug.
And just so you don’t get me completely wrong.
I agree with you that “The law is a dangerous thing, Government is dangerous. The only thing more dangerous than government is no government. You do not advance the cause of freedom by making government too weak to protect you from the thugs”.
But then that is pretty much the point of the US Constitution, Federalism, divided government, subordinate governments, etc. The point was to create a national government strong enough to maintain the rule of law, protect the rights of individuals, etc. but not so strong as to become tyrannical itself by subverting the rule of law and trampling the rights of individuals.
well, i quite agree with you. only problem is that the thuggishness of our government can only be controlled by active citizens who care about good government. it can’t be controlled by people who run around talking about pfreedom and voting for the guys who are making our government more thuggish because those are the guys who talk about pfreeedom.
and yes, as far as i can tell the guys who wrote the constitution were trying very hard to avoid a thuggish government. i don’t think they entirely succeeded, but the idea is worth fighting for.
“trampling the rights of individuals.”
That old meme Hitler used.
With rights (aka: freedoms, power, etc) come responsibilities and a moral foundation.
Moral foundation lacking!
Government comes in to either help trample the masses or most infrequently help the masses.
I rather not a Koch as “philosopher prince” nor Hitler, nor Mao.
“problem is that the thuggishness of our government can only be controlled by active citizens who care about good government. it can’t be controlled by people who run around talking about pfreedom and voting for the guys who are making our government more thuggish because those are the guys who talk about pfreeedom”
That is a fine concept, but concrete examples of what you consider thuggish would help.
We agree that militarizing the police is thuggish.
But I am not so sure we agree with Raich, Kelo, or NFIB.
You seem more comfortable with government use of coercion than I am. From my point of view government should use force to prevent persons from harming others, but government use of force to make persons do what some consider good works is a very dangerous thing.
It leads otherwise intelligent people to jump to the conclusion that the commerce clause empowers congress to compel commerce, regulate a person’s economic decisions, and other such nonsense.
30 years in technology and last 18 in TX has introduced me to a lot of self described libertarians (many of whom initially supported W then abandoned the GOP over his disastrous administration heheh). So I’ve had ample opportunity to examine these people’s views up close and the thing that has always struck me is how much they all emphasize the critical right to exclude.
Without fail or exception every one of these people insisted that the most important aspect of liberty is the right of exclusion. Exclusion from schools, neighborhoods, public accommodations in businesses etc. Kind of a strange place to put emphasis for people who insist they are about “Liberty” and “the right to be left alone”.
My opinion was fortified by browsing a long list of “political discussion group” meet ups on line once. The GOP had 1 or 2 groups at most as did the Democrats. But the local Libertarians had over a dozen separate meet ups. I laughed out loud as I realized what had likely taken place over the years. I’m willing to bet every one of the separate libertarian groups was created when somebody said “Ok but I’m not coming if He/She’s going to be there…”
When you examine these people closely this is what they believe and want more than anything. The right to say No. Sad really.
i am not at all comfortable with government coercion.
what i object to about libertarians is they have no reasonable way to control government coercion… note that word “control” how do you control coercion with coercing the coercers?
and the libertarians appear to fall for anyone who announces he is “against government coercion”. then they elect him and he starts coercing all over the place.
like other people you end up worshipping a word, or words, to save yourself the trouble of actually thinking about how things work.
Hansberry, what’s with the incessant, mindless use of the “states’ rights = freedom” cliché? You mention Kelo, yet you don’t realize that “states’ rights” is a facially silly canard? Most people, I think, don’t really care which government entity—federal, state, or local—is violating their constitutional rights; there’s not complete agreement, of course, on what constitutes constitutional rights, but most people recognize that, say, imprisonment does not constitute freedom even if it’s being done by a state or local government rather than by the federal government.
What’s really weird and nonsensical is your definition of freedom as consisting only of property rights. Most people who aren’t Tea Baggers/Conservative-Legal-Movement-types define freedom as including, well, freedom.
I disagreed with the Kelo result, btw. But I understood what the fear was among the five justices, certainly including Stevens, who authored the opinion, if they ruled the other way: They feared, probably correctly, that the opinion would used to support wholesale attacks on environmental regulations, because that was at the time (2005) and clearly remains a key obsession of the Conservative Legal Movement. I shared that fear, so I did have mixed feelings about the result. Anyone who’s followed the Conservative Legal Movement recognizes their modus operandi. And Roberts, who was not on the Court when Kelo was decided, is the most aggressive, overt practitioner of it—using some flagrantly dishonest tactics in the service of a complete restructuring of broad swaths of the law.
Where did you read this: “They feared, probably correctly, that the opinion would used to support wholesale attacks on environmental regulations, because that was at the time (2005) and clearly remains a key obsession of the Conservative Legal Movement.”
Just curious. I read the wiki version which does not mention this.
So you excuse the 5 justices who failed to protect individuals against wealthy corporation combining with state action in Kelo -the very thing that your OP was meant to highlight?
“What’s really weird and nonsensical is your definition of freedom as consisting only of property rights.” Well Beverly THAT would be a canard. Pray tell, where did I say that?
What is weird is people who say they are for individual freedom and against fascism, writ large or small, but cannot bring themselves to
denounce the screwing over of individuals by their team when there is any chance the federal government might become an iota weaker.
From my point of view government should use force to prevent persons from harming others, but government use of force to make persons do what some consider good works is a very dangerous thing.
It leads otherwise intelligent people to jump to the conclusion that the commerce clause empowers congress to compel commerce, regulate a person’s economic decisions, and other such nonsense.
Mike, this is sloppy and vague to the point of sloganeering. What real-world examples of the ‘good works’ do you have in mind? Please be specific.
I’d agree about the sloppy, but that’s about as you can expect from a first pass. The trick is to get beyond the first bass.
As for the commerce clause, I was certainly bemused by it’s being invoked to control non interstate commerce on the grounds that what happens in one state affects what happens in all states…
sorry, can’t be more specific than that. sloppy memory. but surely you have noticed that especially recently the Supreme Court has been pretty determined to interpret the law any damn way they please.
not that this never happened before, of course.
Where Hanesberry loses me… if he is still listening is first that his first liberty concern seems to be that he hates taxes (so do I). And second , he says “government use of force to make persons do what some consider good works is a very dangerous thing.”
certainly it is a dangerous thing. but it’s what governments do. because some people consider good works to be what they want the government to do. those who don’t want the government to do some good work need to make a case for why the good is not worth the harm. those who don’t want the government to do ANY good works are sociopaths, aka Republicans.
but not to fear
they only pretend to be sociopaths to get elected.
Purchasing more health insurance than one needs for example. (compel commerce / regulate a person’s economic decisions as in NFIB and lower court decisions on PPACA)
The leap from Wickard to the claimed power to compel commerce which was accepted by 4 justices in NFIB demonstrates the danger. Wickard itself was a ridiculous stretching of the CC power, then there was Raich which showed how far the government could go in using the CC to ban supposedly bad behavior having nothing to do with interstate commerce, followed by NFIB where the government attempted to use the CC to outright compel what it considers good behavior.
Another example of compelled good acts would be to sell one’s home to a Corporation that desires it, as in Kelo (though it was a State doing the compelling here, scotus gave its blessing, 5th and 14th amendments be damned).
Coberly does not note the difference between the government deciding to do good acts within the limits of its Const. powers (all well and good) and the government attempting to force a person to do what the government considers good acts. Congress attempting to do good by way of regulating the health insurance market is one thing, compelling persons who are not providers of healthcare or health into commerce is another.
on the contrary, I do note the difference, and I agree with you.
the thing i don’t agree with you about is the Libertarian rhetoric which ends up putting you on the side of the thugs who will use their coercive power to make life quite miserable for everyone.
the Libertarian rhetoric does nothing to solve the problems you cite. it just makes people stop listening to you.
attack the problems at hand. don’t propose utopian solutions.
What utopian solutions have I proposed?
I have proposed only that people who believe in good government should oppose militarizing the police, gov spying on citizens, Kelo, Raich, and Congressional claims to have the power to compel commerce (which were advanced in NGIB but accepted by only 4 justices)..
Thus far you have not disagreed with any of those, so maybe you are a utopian as well? I believe it would be much better to leave aside labels and simply take each issue as it comes. I agree with Beverly on the issue of labels, but chided her for not opposing federal power grabs (in this thread Kelo was on point as that was a State&Corporate combination oppressing individuals that was upheld by the Supreme Court (likely as a concern for federal power).
Uh … okay, let me make sure I have your position straight, Hansberry: It doesn’t matter what needs to be done, and what the consequences would be from allowing the problem to continue; all that matters is which government it is that’s trying to correct the situation. Right?
Except, of course, that in Kelo, which was a classic eminent domain case rather than an environmental-statute or environmental-agency-regulation case, claimed a Fifth Amendment “takings” clause violation not by the federal governmment but instead by the City of New London, CT. And except that it is not jus the federal government but also some state governments that have environmental statutes and environmental-law enforcement agencies–and so a Fifth Amendment “takings” clause ruling by the U.S. Supreme Court wouldn’t just limit the EPA’s regulatory and enforcement mechanisms; it also would limit state and local government ones. The Fifth Amendment, after all, is a part of the U.S. Constitution, and a Supreme Court opinion interpreting the “takings” clause applies to actions by local and state governments as well as federal government.
Me? I don’t give one whit which level of government is acting to limit toxins in the air and in the water. Nor do I give a whit which level of government is violating some pretty fundamentals rights, including some that actually involve physical freedom. I don’t want to breathe toxic air and I don’t want to drink or shower in or eat produce grown in toxic water, and don’t want others to, either. And I don’t give a damn whether it’s a local or state court or agency or prosecutor’s office or prison guards or police force, or instead a federal one, that is making a mockery of even the most basic human rights and some pretty basic constitutional rights as well, irrespective of whether those rights are on the short list of ones that the Conservative Legal Movement is into.
Bill, yeah, Wikipedia wouldn’t get into that, because the possible implications for environmental law were not overtly part of the case. Kelo was a traditional-type Fifth Amendment “takings” clause case–i.e., it was a standard eminent domain case, in which the government wanted to actually literally take the private property at issue, and pay fair market value for it. But by 2005 it already was very clear that the Conservative Legal Movement wanted to transform the “takings” clause into a weapon against environmental laws and regulations, local, state, and federal ones. And the Conservative Legal Movement, including certainly its federal judges and justices, employ a tactic by which they take a sentence or two in a Supreme Court opinion and, if it’s dictum, treat it instead as part of the ruling itself, and if it is actually part of the ruling, remove it from its context and run with it to do whatever they wish.
Michael also mentioned PPACA ruling by SCOTUS. I had this out with one other commenter (with him in attendance) as to why people should be insured if not covered by Medicare, Medicaid, ESI, etc. Mill would say minorities should be free of all encumbrance placed upon them as long as what the minority does places no harm or burden upon the majority.
Chapter I: “Over time, the meaning of liberty changed along with the role of rulers, who came to be seen as servants of the people rather than masters. This evolution brought about a new problem: the tyranny of the majority, in which a democratic majority forces its will on the minority. This state of affairs can exercise a tyrannical power even outside the political realm, when forces such as public opinion stifle individuality and rebellion. Here, society itself becomes the tyrant by seeking to inflict its will and values on others. Next, Mill observes that liberty can be divided into three types, each of which must be recognized and respected by any free society. First, there is the liberty of thought and opinion. The second type is the liberty of tastes and pursuits, or the freedom to plan our own lives. Third, there is the liberty to join other like-minded individuals for a common purpose that does not hurt anyone. Each of these freedoms negates society’s propensity to compel compliance.”
Chapter III: “Actions cannot be as free as ideas or viewpoints, and the law must limit all actions whose implementation would harm others or be an outright nuisance. He states that human beings are fallible, and therefore they need to experiment with different ways of living. However, individual liberty must always be expressed in order to achieve social and personal progress.”
Chapter IV: “he does suggest that because society offers protection, people are obliged to behave in a certain way, and each member of society must defend and protect society and all its members from harm. In brief, society must be given power to curtail behavior that harms others, but no more.”
Chapter V: “First, individuals are not accountable to society for behavior and actions that affect only them. Second, a person is answerable for any type of behavior or action that harms others, and in such cases it is the responsibility of society to punish and curtail such behavior and action.”
I would contend that not having insurance or failing to seek adequate coverage places a burden upon others to provide uncompensated care for individuals. Indeed, those who actively seek to be uninsured or pay for the care of themselves voluntarily violate the precepts of Mills Tyranny of The Majority. His argument in this case is silly.
Typically, we are very careful in dealing with land owners so as not to be accused of denying them the use of their land provided they do not harm others.
Well at least you didn’t say it was for the children. Still Ms. Kelo and a few others lost their homes because a local government acted in conjunction with a corporation to take it from them, in violation of 5th and 14th amendment protections, which were swept aside by the supreme court.
I guess you have to break some eggs to make mayonnaise. eh?
And if a few people have to lose their homes rather than even the slightest chance that there be any reduction in government power to do good -so be it says Beverly. That pesky BOR is so 18th century.
“the Conservative Legal Movement, including certainly its federal judges and justices, employ a tactic by which they take a sentence or two in a Supreme Court opinion and, if it’s dictum, treat it instead as part of the ruling itself, and if it is actually part of the ruling, remove it from its context and run with it to do whatever they wish”
That tactic is not limited to the Conservative Legal Movement. The Progressives have been doing the same with CC cases for the last 70+ years, from Wickard, to Raich, to NFIB (albeit only 4 justices in NFIB bought into the government’s CC argument)
Lastly, dishonest tactics by one side do not justify pre-emptive strikes by the other, as in watering down 5th amendment protections rather than risk any chance of a loss of government power.
Beverly said: Uh … okay, let me make sure I have your position straight, Hansberry: It doesn’t matter what needs to be done, and what the consequences would be from allowing the problem to continue; all that matters is which government it is that’s trying to correct the situation. Right?
First, you seem to be saying the ends justify the means.
Second -it does matter which government is trying to correct a particular problem. We are a nation of laws, no?
Can a State set out to correct a problem that the Const. grants authority to the federal government? Let’s say the Texas Air National guard decided to go to Iraq to squash the latest crazies. Are you opposed because it is a damn foolish idea, because it violates the Const., or both?
You don’t seem to care that the State government and the federal governments trampled Ms. Kelo’s 5th and 14th amendment rights, what you care about is that the federal government solved a supposed problem -stopping the Conservative Legal Movement by any means necessary.
i have to say i get confused between you and Beverly. It seems to me yo both rely too heavy on pious generalizations. while in Bev’s case she seems willing to stand aside and let the government trample individual human beings in the name of some abstract power the government otherwise needs in order to defend the people from harm they would not be able to protect themselves from as individuals.
while you seem to be willing to take away the government’s power to protect the people from harm… because some abuse of that power has hurt someone.
as long as bad people are in charge, it doesn’t matter what the laws are. (overstatement? over generalization?)
just for what it’s worth, i watched the State of Oregon condemn people’s property along a proposed freeway widening project. they paid “fair market value” for the property… which was unfortunately not a tenth what those people would have needed to find other “equivalent” property, not to mention the destruction of “neighborhood.”
i didn’t like that much. and in general i don’t like the arrogance of government, not to mention the stupidity, and the laws don’t seem to help…. though i expect they do “in general.”
but i despair at Libertarians because it always comes down to they don’t want to pay taxes. and of course they “don’t need insurance”… because they are too dumb to know that they do. don’t like Obamacare because it turns over medical care to the same thugs who were robbing the people in the first place. but you are going to need insurance one day, and if you wait until you “need” it, it will be too expensive for you, and all those years you weren’t paying for it will mean someone else has to pay more for theirs so that at the end of the day they can see that you get the care you need… as a “human right.”
years ago i got interested in Social Security because the Big Talkers were making no sense. I looked at it carefully enough to understand it and decided the Big Talkers were Big Liars. They were politically on “the right” so i guessed i must be “on the left.”
Then I ran into “libertarian” arguments against SS. They were not lying. They were just ignorant.
But yes, along the way I have seen “progressives” call for paying for Social Security by “taxing the rich” using the argument about how “few” people would have their taxes raised if the rich were taxed to pay for the poor.
That’s when I realized that the libertarian right had some real reason to fear the left.
Stupidity and greed and hurting real people are not the exclusive property of the right.
Mike, I guest you missed this, but I said that I thought (and think) Kelo was wrongly decided. Yes, I supported the homeowners. Really, I did.
But the fact remains that toxic waste, toxic air, toxic water, and other environmental facts do impact, in large and small ways, actual lives. And the fact also is that the Conservative Legal Movement has an elaborate network of “legal foundations”–rightwing, nonprofit law firms—that operate around the country finding plaintiffs to use to end environmental controls by state environmental agencies and by the EPA and that work in open concert with several members of the Supreme Court to that end. The justices, including Kennedy (the only Movement justice then or now who cares about environmental issues), who voted against the Kelo plaintiffs knew that, given the fervor of the “takings”-clause-as-anti-environmental-laws crowd, it would be very hard to contain a ruling for the Kelo plaintiffs. And, yes, preventing the evisceration of local, state and federal powers to regulate land-use-related environmental issues is a legitimate reason to render the Kelo homeowners collateral damage in what shouldn’t be a war, but is.
I do think it’s funny that you claim that neo-federalism is all about enforcing the rule of law. What? It’s not about individual freedom! Individual liberty? But, but, but why, then, do five Supreme Court justices regularly invoke freedom! liberty! as their justification to privilege state “sovereignty,”state “dignity,”—and certainly state-COURTS’ “sovereignty”, state COURTS’ “dignity”–over the rights of actual individuals whose cause isn’t part of the Conservative Legal Movement?
No, Mike, the rule of law does not dictate the right of state courts to violate individuals’ constitutional rights in criminal cases or in civil cases. Really, it doesn’t. That’s because, contrary o the Conservative Legal Movement justices’ fabricated claims, the Constitution’s structure does not demand it, or even suggest. It demands exactly the opposite, and has since 1868.
That fabrication of constitutional law has made victims of countless—countless–actual individuals, whose lives have been impacted in far, far more serious respects than the eminent domain taking of the Kelo plaintiffs’ homes, with fair-market-value compensation.
But in order to understand this, you have to walk away from the rightwing reliance upon cliches. No, Mike, state courts’ rights, conferred not by the Constitution itself but instead by the Supreme Court’s Movement Conservative cadre, to grossly violate individuals’ most fundamental constitutional rights does not translate into freedom, into liberty. I absolutely marvel at the casualness with which the Supreme Court overturns state statutes that conflict with Movement Conservative ideals, without mentioning state “sovereignty”, state “dignity.”
So, maybe you’ll start caring about the rule of law when it’s state courts that are violating individuals’ rights?
Oh, yes, Dale! The horror—the HORROR!–of raising taxes slightly on the rich, to, say, the levels at which they were taxed in the 1990s, in order to shore up Social Security! Yup, the libertarian right definitely has reason to fear the left. Good thing they have the right to bear arms. The possibility of an American Kristallnacht, and all, y’know.
There are legitimate policy arguments for it, and legitimate policy arguments against it, but government-instituted Kristallnacht it is not.
What IS it with this claim by so many people that raising taxes slightly on the wealthy is the road to perdition? Germans, Scandinavians, Australians, Austrians, Canadians, the Dutch, the French, etc., etc., aren’t exactly living imprisoned lives. Why do social safety net programs, as opposed to, say, anything taxes pay for that aren’t social safety net programs, cause for libertarian hysteria?
I mean … seriously, Dale? Seriously?
I was with you, really I was, until you threw in that “fair market compensation.”
There IS no fair market compensation for taking your home. I tried to indicate that with my story about Oregon”s “fair market” taking: perhaps i was not clear. The people got about 10k for their homes, which because they were small and poor and in a not nice neighborhood was probably about what “the market” would pay for them. but to those people it was a place they could call home. they could not afford a home at the going rate in Portland… by a factor of ten. And even if they could, they would lose their neighborhood, as well as their home, which as the ad says, was “priceless.”
There is NO fair market at the point of a gun, and when the excuse for a taking is a lie to give benefit to a rich, private, corporation, it’s a damned lie.
I am pretty sure any honest court could tell the difference between that and some developer claiming “fair market value” for what he “might have gotten” from his property if only those pesky environmental laws didn;t keep him from “developing” it.
I am not sure Hanesberry could… but that’s the problem.
there was a lovely bit of property in corvallis. farm with surrounding “natural” areas.
developer wanted it to build student housing so OSU could raise it’s class sizes from one hundred to two hundred (it’s called sacred education).
owners wanted to sell. getting old. farm too small to compete in the modern world. no other farmer wanted to buy for same reason. citizens of town fought the sale. won election after election until they weren’t paying attention and the developer won. i never heard of any movement by the citizens of the town to buy the property themselves for a “natural area” which probably actual sanity and the health of the children need…. or needed before play stations.
Beverly said: So, maybe you’ll start caring about the rule of law when it’s state courts that are violating individuals’ rights?
But of course Kelo was a case of a state violating individual rights.
And imagine that, I and many other libertarian types were fervently opposed to that disgrace.
But the supreme court rubber stamped that denial of individual rights because they wanted to protect that all important government power -which you assure us is only used to protect individuals from thugs. If only that were true.
Federalism is supposed to protect us from violation of rights at either the state or federal levels. it failed in the Kelo case because all levels of government decided to protect their own power rather than yield to the 5th and 14th amendments.
What good is the supreme court when it sides with the thugs? Madison thought that the higher level of government could be counted on to set things rights since it would be a disinterested and impartial judge.. However we see that the supreme court is hardly disinterested when federal power is in the picture, if even indirectly.
“Federalism is supposed to protect us from violation of rights at either the state or federal levels.”
Why do you act with such surprise to a supposed “takings?” States have been violating Federal Law and Constitutional rights for years now and very few get as excited about it. Hell, come to Michigan where “mens rea” or “actus rea” can be tossed in the garbage can with ease. The 1996 AEDPA allows state courts to ignore constitutional issues raised by a defendant. Raised by the defendant, ignored by the state, and nothing to be answered by federal courts.
Yes the state took property a physical thing; however, states have been violating the rights of individual to a fair and unbiased trial for years. People and many attorneys separately and acting as prosecutors have applauded those state and federal decisions. In the end, it appears to me SCOTUS looks to more cases involving those with influence and money.
Dale, what you say about eminent domain takings of homes for relative pittances is true, but the fact remains that the Constitution provides for eminent domain takings with “just compensation.” Fair market value is not just in many, many cases. You might not know this, but it was a huge political and legal issue in the 1950s and ’60s during planning and construction of the main interstate superhighway system, especially the superhighways– “expressways,” we Midwesterners call them—that run through major cities.
Earlier, when the main railroad lines were being built, and then rapid transit and metro commuter lines, there were issues of this sort, too, I assume, although I don’t know much about that. The railroads were private companies, and many of the regional or urban commuter systems were, originally, too, but I think that, for eminent domain purposes, they were treated–as per federal and state statutes, and by the courts–as though it was the government itself that was building them and would own them. I don’t remember whether I read Kelo back when it was issued, and if I did, I don’t remembers specifics of it, but I assume that the opinion in that case relies heavily on the long-ago transportation-network eminent domain court opinions.
Unfortunately, Michael, we see that the supreme court is hardly disinterested when state courts’ power is in the picture, very directly.
“The 1996 AEDPA allows state courts to ignore constitutional issues raised by a defendant.”
You know what, Bill? The only reason that AEDPA allows state courts to ignore constitutional issues raised by a criminal defendant is that the five-member States’ Rights! cadre on the Supreme Court has engaged in a series of bizarre, obsessive, really outlandish perversions, er, “interpretations”, of the statute—interpretations that were not intended by Congress, not anticipated by Clinton in 1996, and that render the statute itself flatly unconstitutional.
It’s all about Freedom! Liberty! dontcha know. Alice could explain that to ya, once she returns from Wonderland by walking back through the looking glass.
It’s really, really sick. As so, so much of the Conservative Legal Movement’s up-is-down Freedom!/Liberty! bizarreness is.
After dealing with our first crack head attorney who literally stole $20,000 from us, failed to prepare for trial, lied to the court, accused us of threatening the court, runs a drug house (apartment) sends his prostitute mule in to buy his crack and her heroin, and indirectly supplies the heroin to a 3rd party who dies in his apartment, gets off on parole while the mule and the dealer go to jail. Not to mention his abandoning upwards of 500 cases, not paying his rent (for which he is convicted of), drives on a suspended sentence, and is caught with 50 grams of crack after being on bail (and he is released on bail again . . . ?). Stealing rent from a property owner is really a terrible offense to be convicted of, dontcha yuh think?
I quote J.S. Mill which Michael may not be familiar with and the tyranny of a majority and minority and still we are met with a pious observation about a takings. WTF? This as opposed to individuals being deprived of due process because the state knowingly does not address constitutional arguments. Hos many courts have we been in Bev? We failed to go to Washington as SCOTUS would not even hear the case after Erwin filed the brief. We even did Cert early-on. Mens rea and actus rea don’t count; but, a takings has merit to be heard and decided upon.
As far as Alice?
“Now friends, there was only one or two things that Obie coulda done at
The police station, and the first was he could have given us a medal for
Being so brave and honest on the telephone, which wasn’t very likely, and
We didn’t expect it, and the other thing was he could have bawled us out
And told us never to be seen driving garbage around the vicinity again,
Which is what we expected, but when we got to the police officer’s station
There was a third possibility that we hadn’t even counted upon, and we was
Both immediately arrested. Handcuffed. And I said “Obie, I don’t think I
Can pick up the garbage with these handcuffs on.” He said, “Shut up, kid.
Get in the back of the patrol car.”
And that’s what we did, sat in the back of the patrol car and drove to the
Quote Scene of the Crime unquote. I want tell you about the town of
Stockbridge, Massachusets, where this happened here, they got three stop
Signs, two police officers, and one police car, but when we got to the
Scene of the Crime there was five police officers and three police cars,
Being the biggest crime of the last fifty years, and everybody wanted to
Get in the newspaper story about it. And they was using up all kinds of
Cop equipment that they had hanging around the police officer’s station.
They was taking plaster tire tracks, foot prints, dog smelling prints, and
They took twenty seven eight-by-ten colour glossy photographs with circles
And arrows and a paragraph on the back of each one explaining what each
One was to be used as evidence against us. Took pictures of the approach,
The getaway, the northwest corner the southwest corner and that’s not to
Mention the aerial photography.”
I’m very much afraid European neoliberalism is not much different from yours, albeit a little more covert in its workings