Judicial Relativism

by Edgar Steele

16 July 2005

"No person shall be...deprived of life, liberty or property, without due process of law; nor shall private property be taken for public use without just compensation." --- U.S. Constitution, Fifth Amendment (1791)

"[T]hat alone is a just government which impartially secures to every man, whatever is his own." --- James Madison (fourth President of U.S.), National Gazette, Property, (Mar. 29, 1792), reprinted in 14 Papers of James Madison 266 (R. Rutland, et al. eds. 1983)

"I'm as mad as Hell and I'm not going to take this anymore!" --- Howard Beale, played by Peter Finch in the movie "Network" (1976)

Yes. Yet another commentary on the recent Kelo decision by the US Supreme Court...more or less. Actually, both more and less.

I generally avoid writing about things that I deem to be receiving adequate commentary on the Internet (I gave up long ago on the nonstop lies of traditional media, of course). Kelo is getting plenty of that...adequate commentary, that is. And totally appropriate, too. About the only observations I can't officially get behind are those made by a few hysterics suggesting that nine lengths of rope be secured for a visit to the Supreme Court chambers.

However, I received such an overwhelming demand from list members for my take on the Kelo case (particularly since I chose to talk about the Supremes' Ten Commandment decision a few days ago) that I have decided to add my ranting to the cacophony, after all.

Actually, anybody who follows my writings knows exactly how I feel about this case, already. I suspect that what you really want simply is to hear me rant and rave about it. Even if it gets me disbarred, because criticizing sitting judges is the third rail for practicing lawyers - especially those of us still standing and who are politically-incorrect. Well, I'm not practicing law much anymore, anyway, because the deck gets so stacked against my clients, so I haven't that much to lose. For the record, let's consider you my clients and this to be legal advice - not much shelter for a disbarment hearing, but it's something.

I read the decision, the concurrence and the two dissents. Nothing surprising - except for the mere fact of O'Connor and Thomas dissenting, of course. I've grown so accustomed to judicial intellectual dishonesty, irrationality and outright lies (I almost used the word "prevarication" there, but you deserve better from me). As a lawyer, I am well past my "use by" date, for the reasons given in my 20 Commandments for New Lawyers. I no longer can tolerate judicial intellectual tripe, pretense and false justification, which differ from gutter logic only in the number of syllables used per word.

I know my next sentence will get this article barred by a great many ISPs, but there simply is no better description. The U.S. Supreme Court's decision in Kelo v. New London, et al., is absolute and total bullshit. Pornographic, even, under the old standard for pornography, in that it possesses "no redeeming social value." Let me say it again: BULLSHIT!!! Make no mistake. Shout it from the rooftops. Hear it echo down the halls. Throw open your windows, lean out and shout, "I'm mad as Hell and I'm not going to take this BULLSHIT anymore!" (With apologies to Howard Beale.) There simply is no better word, else I would use it (as with "prevaricate," above, you deserve the best from me, after all).

Susette Kelo owns (soon to be "owned") an expensively-improved house with a prime water view. She was joined in her suit by several other petitioners, among them an elderly couple who have lived in their home for 60 years, with the wife actually having been born there in 1918 and never having lived anywhere else. To say we are talking about unique and prized personal residences would be a gross understatement. The City of New London, Connecticut, is taking their homes, among many others, and "selling" them to a private developer, who intends to construct a waterfront "urban village" which will include shops, condos and 90,000 square feet of private office space. Note the repeated usage of the term "private."

Justice Stevens, speaking for the majority of the court in his written opinion, correctly framed the issue involved: "The question presented is whether the city's proposed disposition of this property qualifies as a 'public use' within the meaning of the Takings Clause of the Fifth Amendment to the Constitution." (Kelo vs. City of New London, et al., USSC No. 04-108, 6/23/2005)

Where's the "public use" in this taking, as required by the Fifth Amendment, you might ask? "Economic development" is the court's response: "Clearly, there is no basis for exempting economic development from our traditionally broad understanding of public purpose." (Kelo, Ibid) I'm not even going to dignify usage of the term "clearly" in Stevens' opinion with any sort of reasoned discussion. It simply is more bullshit. "Clearly," indeed. I'll tell you what is clear about this opinion, because we all can smell it, even way up here in the cheap seats. Can you say, "taxes," boys and girls? "Economic development" is a euphemism that bureaucrats employ when contemplating an increase in the current tax base. Money, in other words.

It's always about money, isn't it? Tell that to the 87-year-old lady and her husband living out their final years in the only home she ever has known. What an incredibly, disgustingly, money-grubbing, thieving, murderous and shabby enterprise America has become! This is not the country into which I was born. These are not the people who pledged certain values to me, in exchange for which I became the person I am today. This isn't your father's America.

I simply cannot resist dropping in this quote from the Kelo decision, either: "(O)ur jurisprudence has recognized that the needs of society have varied between different parts of the Nation, just as they have evolved over time in response to changed circumstances." In other words, the Supreme Court actually admits that it no longer interprets the Constitution, but merely issues fiat law in response to "the needs of society." Judicial relativism.

Like moral relativism, judicial relativism is a term I have coined to refer to the lack of any sort of legal compass, akin to the lack of a moral compass for those who preach, "If it feels good, do it." The legal compass, of course, would be the Constitution...at least, it used to be when the US Supreme Court did its job of interpreting the Constitution.

Like moral absolutism, judicial absolutism has been a casualty of the coup that has taken place in America during the past fifty years. You get an idea of the devolution of America's judiciary and government by considering the change of fare coming through your television set during the same period of time. From "I Love Lucy" to MTV, which today features nudity, miscegenation, religious blasphemy, thinly-veiled sex acts and human excrement thrown on contestants in certain of its shows. Yes, it is that bad.

In reality, the coup started with establishment of the Federal Reserve System under President Wilson, who thought he was selling out America for the job he really wanted - President of the World - which he was promised by his Zionist keepers in payment for his treachery, in the form of taking the helm of the soon-to-be-established-but-short-lived League of Nations. JFK's assassination marked the real beginning of the total takeover that you now see living and breathing throughout the halls of power in Washington, DC. and now entering into every level of state and local government. (Much, much more on all this in my book, Defensive Racism.)

There is an important topic barely mentioned in the Kelo opinion: The second of the two Fifth Amendment prerequisites to a taking of private property through eminent domain powers: the payment of "just compensation." The court seems to assume that all the property owners involved in this and other, similar cases, will get paid "just compensation." Nothing could be further from the truth. Let me illustrate with an example right here in North Idaho.

Several years ago, a local Sandpoint hotel embarked upon a major expansion that was to take up the better part of a square city block and spill across a street into part of the adjoining block for its rooms, restaurant, bars, meeting rooms, etc. Everybody in its way sold out at premium prices except for one guy who owned a run-down tavern. Nothing worked. Nothing would make him sell, not even an attempted court lawsuit. It was his dream. His little piece of heaven and no amount of money would provide him "just compensation." That's the problem with real estate. Every single piece is unique, some with values far beyond monetary to their owners. In some cases it is like trying to put a price on a child...or love...or vengeance. Can't be done.

Connie's hotel built around the Tervan, with its walls towering over the little structure, right on the property lines and, to this day, on Sandpoint's main street, you can see Connie's Hotel, a monolith except for one little pocket, right in the middle on one street fronting the hotel: The Tervan. (Seems some guy years ago meant to put up the word "Tavern" on the reader board but made a mistake which became endearing to some regulars.) During the onslaught by Connie's lawyers, the guy added to his sign the legend, "Hell, no, we won't go!" People loved it. You can still get a beer in the Tervan. Gotta wonder how much longer, though, because that parcel would produce a great deal more in the form of property taxes as a part of Connie's Hotel.

Today, Connie's could initiate an eminent domain action and not have to pay a premium, even. In fact, I predict that, eventually, the Kelo decision will result in property being taken from people for pennies on the dollar. Let your imagination run wild with how that might happen, as it is a topic for another day, but - mark my words well - it will happen.

So Kelo is fatally defective for ignoring the whole issue of "just compensation," inevitably tied to the inherently unique, one-of-a-kind nature of each and every single piece of real estate in America. Ask any real estate agent, "What's a piece of property worth?" Always, the answer will be, "Whatever somebody is willing to pay for it." There's the rub. When it's taken from you, nobody is bargaining to buy it, so its value never can be ascertained with anything approaching certainty. What if all the local appraisers are beholden to the developer? Or local government? Or....

A particularly entertaining counterpoint to this past week's Kelo decision was the announcement by a fellow in California, Logan Darrow Clements, that he is applying to take a New Hampshire farm away from one of the Supreme Court justices who signed the majority opinion, David Souter, by eminent domain and convert it into a hotel. In a letter to the local town fathers, Mr. Clements said: "The justification for such an eminent domain action is that our hotel will better serve the public interest as it will bring in economic development and higher tax revenue to Weare." Now, there is an eminent domain action that I can get behind!

America has a great many problems which are, in reality, merely symptoms of a far more fundamental problem: the people who presume to run America today.

The ability to acquire power trumps the ability to exercise power either thoughtfully or fairly. In other words, the people in power always are the very people who never should have been given power in the first place. Think on this for a moment and you will see how it must be so. In fact, how it never could be any other way except at the very beginning of any nation.

Why? Because those willing to do anything, all other things being equal, always will beat out those hampered by morals and ethics. That is the real reason why we get the kind of Presidents and Congresscritters and Judges that we have, year in and year out.

Never in a million years would I want to be a judge. I think that there must be something fundamentally wrong with anybody who actually wants to sit there and say to other people, "You live" or "You die." Really, now, what's the difference between that and being a serial killer? A serial killer makes that decision about everybody with whom he comes into contact.

Remember in Third or Fourth Grade, when the teacher suddenly announced, "Okay, children, now we are going to vote on class officers. Who would like to be Class President?" Remember the little fat kid who sat on the right, up in the front row? The really annoying kid who sucked up to the teacher all the time and didn't like you? His hand shot up so fast that you figured he might have dislocated his shoulder. Today, that little fat kid is a judge.

All of America's judges should be taken out and....well, let's just say they should be turned out of their jobs.

Next, we should assemble all the country's lawyers and ask who wants to be a judge. We could do it in the Poconos in August, since so many lawyers already will be there. All those who raise their hands should also be taken out and....turned out of their jobs. The rest simply should be disbarred, myself included.

Very few lawyers will be needed if we eliminate 99% of the laws that nobody can understand or stay on the right side of, anyway, and those lawyers should be forced to serve part time as judges at no pay. That will speed things up, I guarantee you. Since juries will be deciding all matters of fact and law, just as they should be doing anyway, but are kept from doing by a corrupt and unfair system, the judge is just a referee and needs only to know the rules of procedure.

Howard Beale's full rant deserves a listen at this point: "You've got to say, 'I'm a HUMAN BEING, Goddamnit! My life has VALUE!' So I want you to get up now. I want all of you to get up out of your chairs. I want you to get up right now and go to the window. Open it, and stick your head out, and yell, 'I'M AS MAD AS HELL, AND I'M NOT GOING TO TAKE THIS ANYMORE!' I want you to get up right now, sit up, go to your windows, open them and stick your head out and yell - 'I'm as mad as hell and I'm not going to take this anymore!' Things have got to change. But first, you've gotta get mad!... You've got to say, 'I'm as mad as hell, and I'm not going to take this anymore!' Then we'll figure out what to do about the depression and the inflation and the oil crisis. But first get up out of your chairs, open the window, stick your head out, and yell, and say it: I'M AS MAD AS HELL, AND I'M NOT GOING TO TAKE THIS ANYMORE!"

Let's close with a joke. How do you know when a judge is well hung? (Answer: When he stops breathing.) Now, that's a joke, don't forget, Mr. Chertoff. I don't want you trumping up charges against me of conspiracy to commit murder of a Federal judge just because this joke is a good deal more specific than that claptrap with which you managed to send Matt Hale away for forty years, simply because he failed strenuously enough to object to the suggestion by one of your FBI agents that a judge be plugged.

New America. An idea whose time has come.


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