Bush and Kelo

Per David’s Kelo anniversary posts below, skeptics are probably right to question the sincerity of the White House’s halfhearted embrace of property rights last week. Back in 2004, when Kelo was pending before the Supreme Court, the Bush administration not only refused to file an amicus brief on behalf of the property owners, but was actually on the verge of filing a brief on behalf of the land-seizing local governments.

The Institute for Justice’s Clint Bolick wrote at the time:

One would expect the Bush administration, with its professed support for strict constitutional construction and for property rights, to join the dozens of conservative and libertarian groups arrayed in this effort, or at worst to sit on the sidelines. But for reasons unfathomable to President Bush’s core constituency, the administration is seriously considering filing a brief opposing property rights.

[…]

So what is it that is impelling the administration to betray its principles?

Is it succumbing to pressure from federal bureaucrats born of solidarity with state and local power? Is it seeking to shelter big business interests that are beneficiaries of eminent domain abuse?

We can’t know because no one in the administration is saying. Even worse is the brazen disdain with which the administration has dismissed pleas from some of its staunchest allies to stay out of the case.

On Oct. 29, a letter signed by 44 conservative and libertarian luminaries — ranging from Grover Norquist to Paul Weyrich and David Keene, and encompassing such groups as the Free Congress Foundation, Family Research Council and National Taxpayers Union — sent the president a letter imploring him to stay on the sidelines. It would be nice to have the administration on the playing field on the side of its friends; but at this point, agnosticism is preferable to adopting the wrong religion.

When property-rights advocates presented a copy of the letter to Timothy Goeglein, the administration’s emissary to the conservative movement, he dismissively dropped it to the ground.

[…]

So when the arguments are submitted in the New London case, it will be jarring if we see the administration standing with the foes of property rights. Perhaps by then the administration will explain its betrayal — or maybe not, for its actions appear truly inexplicable.

Sadly, we now know that advocating for limitless government power isn’t “bizarre” for this administration, it’s routine.

Sam Walker in the L.A. Times

Last week I wrote about a conversation I had with Sam Walker, the University of Nebraska criminology professor whose research was abused by Justice Scalia in the Hudson case. I mentioned that conversation to ex-Reason associate editor Matt Welch, who’s now at the L.A. Times.

That turned into an op-ed for Walker in today’s paper. Excerpt:

The misuse of evidence is a serious offense — in academia as well as in the courts. When it’s your work being manipulated, it is a violation of your intellectual integrity. Since the issue at stake in the Hudson case is extremely important — what role the Supreme Court should play in policing the police — I feel obligated to set the record straight.

Scalia quotes my book, “Taming the System: The Control of Discretion in American Criminal Justice,” on the point that there has been tremendous progress “in the education, training and supervision of police officers” since the 1961 Mapp decision, which imposed the exclusionary rule on local law enforcement.

My argument, based on the historical evidence of the last 40 years, is that the Warren court in the 1960s played a pivotal role in stimulating these reforms. For more than 100 years, police departments had failed to curb misuse of authority by officers on the street while the courts took a hands-off attitude. The Warren court’s interventions (Mapp and Miranda being the most famous) set new standards for lawful conduct, forcing the police to reform and strengthening community demands for curbs on abuse.

Scalia’s opinion suggests that the results I highlighted have sufficiently removed the need for an exclusionary rule to act as a judicial-branch watchdog over the police. I have never said or even suggested such a thing. To the contrary, I have argued that the results reinforce the Supreme Court’s continuing importance in defining constitutional protections for individual rights and requiring the appropriate remedies for violations, including the exclusion of evidence.

I’m not familiar enough with legal scholarship to know just how much of an ethical breach it is for a judge to misuse academic research in an opinion. But Scalia was an academic before coming to the bench, so it seems to me awfully untoward — or awfully careless — to have invoked Walker’s research to further a point that the research pretty clearly disputes. Moreover, Scalia cited Walker in advancing a key argument in a case that could have some pretty significant repercussions.

Walker seems to think it’s a big deal. I find him convincing.

A Legacy of Bias

Last week on my personal weblog, I ran an excerpt from Dan Baum’s essential book Smoke and Mirrors about how the 1986 overdose death of Maryland University basketball star Len Bias led to the 1986 Anti-Drug Abuse Act. The act is arguably the most militant, draconian crime-fighting bill ever passed by Congress.

Much of Baum’s book is told from the point of view of Eric Sterling, a congressional staffer who helped write most of the 1980s drug laws, but who has since become a vocal opponent of those laws, and of the drug war in general.

Yesterday, Sterling and Julie Stewart of Families Against Mandatory Minimums had an op-ed in the Washington Post arguing that, sadly, the legacy of Bias’s death isn’t an end to the use of illicit drugs, but an exploding prison population, violence, and increased drug use — all caused not by Bias’s death, but by Congress’s overreation to it.

Chicago Tribune columnist Clarence Page covered similar ground this week.

A Footnote on Kelo

I’m still amused at conservatives who call the Kelo decision “activist” and make it an exhibit in their jihad against “activist” judges. See the House Republicans, the Alabama Policy Institute, or the American Conservative Union.

But the Kelo decision wasn’t wrong because the Court was activist. It was wrong because the Court failed to actively enforce the Constitution’s restrictions on government. As Richard Epstein wrote in a Wall Street Journal column, “Justice Stevens’s lamentable opinion was the polar opposite of judicial activism. Indeed, it represented a deadly form of judicial deference to legislative action that makes a mockery of both the text and purposes of the ‘Public Use’ Clause.”

Of course, just to complicate the matter, one could say that a court is activist when it finds powers for government that are nowhere granted in the Constitution. In that case, the Kelo Court was activist.

That’s the kind of activism Randy Barnett was getting at when he wrote:

Is discovering and enforcing the original meaning of the Ninth Amendment activism? Or is it activism to characterize this inconvenient piece of text as an “ink blot” on the Constitution, as Robert Bork did in his infamous confirmation testimony? …

Is it activism to construct a doctrine to define the wholly unenumerated “police power” of states in a manner that is consistent with the limits on state power enumerated in the Fourteenth Amendment? Or is it activism to give states unchecked power, notwithstanding the Fourteenth Amendment? 

But conservatives cannot complain that the Kelo decision was another example of judges overriding the decisions of elected officials, which is their usual definition of “judicial activism.” In this case, the judges lamentably deferred to local elected officials, ignoring the property rights protections in the Constitution.

One Year after Kelo, Good News and Bad News

June 23rd was the anniversary of the Supreme Court’s infamous Kelo decision, allowing local governments to transfer property from one private owner to another so long as there is some perceived public benefit. And, of course, there always is some benefit; as Justice Sandra Day O’Connor wrote in dissent, “Nothing is to prevent the State from replacing any Motel 6 with a Ritz-Carlton, any home with a shopping mall, or any farm with a factory” — because in each such case the city would get more tax revenue, and the city council would regard that as a public benefit.

On the anniversary of the decision, homeowners Susette Kelo and Pasquale Cristofaro finally settled with the city of New London on the terms of their eviction.

Also on the anniversary, President Bush signed an executive order that, in the words of a Washington Post headline, “Limits Eminent-Domain Seizures.” The Post and the AP should have learned by now to be more skeptical of Bush administration claims. The executive order really does very little. It says the federal government will only take property from its owners “for the purpose of benefiting the general public.” But the Supreme Court has just said that virtually anything goes under that standard.

Cato author Timothy Sandefur says that the executive order likely means nothing, but it’s good that the president issued it anyway, considering that the administration didn’t file a brief in the Kelo case.

Cato author Ilya Somin disagrees, saying, “Bogus reform efforts such as this one create a danger that the public will be falsely persuaded that the problem has been solved.” And he agrees that “this language validates virtually any economic development condemnation that the feds might want to pursue. Officials can (and do) always claim that the goal of a taking is to benefit ‘the general public’ and not ‘merely’ the new owners.”

If you don’t believe these churlish libertarians, you can listen to dedicated land-grabber Douglas Kendall of the Community Rights Counsel (a private nonprofit organization formed to assist governments in their efforts to take their citizens’ property), who told the AP, “This order appears to apply to a null, or virtually null, set of government actions.” He noted with relief that the order did not include a ban on funding for state and local development projects that employ eminent domain.

So where’s the promised good news? Well, it may pale next to the news that Kelo and her neighbors are finally being forced out and the news that the Kelo decision opened the floodgates for more property seizures than ever. But it’s still good news that Cato has just published Cornerstone of Liberty: Property Rights in the 21st Century by Timothy Sandefur, the first post-Kelo book on why property rights matter, how they’re protected in the Constitution, how local governments and the Supreme Court are ignoring the Constitution, and how to protect property rights after Kelo. Buy it now. Read it. Send it to your legislator and your member of Congress. And keep an extra around to give to the next neighbor whose property is threatened with seizure.

Protecting Your Privacy

As I purchased $10 worth of trinkets at the Container Store, the clerk began the transaction by saying, “May I have your phone number?” I replied, “Uh, no.” And that was that; without any objection he rang up the transaction. 

One way people can protect their privacy is by saying “no” more often. Companies ask for information, but they often don’t require it.

A couple of years ago, a guard at the White House looked at my driver’s license and told me, “You shouldn’t use your Social Security number as your driver’s license number.” So there’s another tip: ask the DMV to assign you a random number for your license.

None of this, of course, will stop your bank or phone company from giving up your information when the feds ask. But there are steps everyone can take to keep our lives just a little more private.

AMA: We’ll Cure Those Market Forces

It should have been an invigorating story for free-marketers.

Saturday’s New York Times describes how competition from health care clinics in retailers such as Wal-Mart and CVS is pushing traditional doctor offices to be more responsive to customer needs:

Professional societies for family doctors and internists are urging their members to break with tradition by making it easier to schedule appointments — or even making appointments unnecessary in the case of walk-in patients who need immediate attention.

“It’s a big trend,” said Amanda Denning, a spokeswoman for the American Academy of Family Physicians, which has about 94,000 members.

The academy is spending $8 million on consultants who visit doctors nationwide to suggest improvements in patient care. The advice is meant to “keep them from going to an in-store clinic,” Ms. Denning said, while also benefiting doctors by making office procedures more efficient.

Speedier appointments for patients who need immediate attention, more efficient office operations, and (the article later states) increased doctor office revenues as more (satisfied) patients are treated. American health care would certainly benefit from such a shot-in-the-arm.

So, naturally, the American Medical Association wants to perform a competition-ectomy. The Times goes on to report:

At its annual meeting this month, the American Medical Association called on the clinics to accept a list of principles that would limit their scope to simple services and ensure that a physician oversees the operations.

“Patients want quick and easy access to health care services, but they shouldn’t have to worry about the safety and quality of care provided in these clinics,” said Dr. Rebecca J. Patchin, an A.M.A. board member.

Once again, the AMA is making sure health care providers will do no harm … to AMA members’ bottom lines.