The Objective Standard Blog

Author: Larry Salzman

Wednesday, October 18, 2006

Condemn the Power of Eminent Domain

Posted by Larry Salzman at 11:16 am

Last years’ United States Supreme Court decision in Kelo v. New London, which refused to prohibit local governments from using eminent domain to promote private economic development, has spawned a massive popular and legislative response at the state level. A comprehensive list of legislation pending, passed, or dead is available from the Institute for Justice’s Castle Coalition website, as well as a report with a discussion of common “weasel words” in bills that may appear to reform the law but will in fact have little legal effect in constraining the power of eminent domain. Because the merit of much of this legislation is suspect, it is worth carefully reviewing legislation proposed in those states where multiple bills or popular referendums are pending, prior to next month’s elections. The passage of nearly any such laws is of some value in registering popular support for property rights, but enactment of better variants of the proposed legislation is likely to lead to a steady stream of lawsuits which will keep the subject of property rights in the headlines for many years to come, which is to my mind a worthwhile result in itself. The more coverage the subject gets, the more time and opportunity are presented to intellectuals to speak to the issue of property rights in popular venues.

In my own state, California, at least nine separate bills were introduced in the state legislature and two popular initiatives were proposed. Unfortunately, only one initiative has made it to the ballot for next month’s election: Proposition 90. Although it is among the weakest of the bills introduced, it nonetheless has the virtue of causing city planners to run scared that they may see some restraints put on their power to take private property for economic development. For those in the area of Orange County, California, the Federalist Society and Pacific Legal Foundation are sponsoring a legal conference this Friday at Chapman University featuring a debate over the Proposition and a symposium on the history of eminent domain.

Posted in: Individual Rights and Law

Thursday, May 18, 2006

Welcome, Ayaan Hirsi Ali

Posted by Larry Salzman at 9:36 am

Courtesy of Neva Paintings (www.nevapaintings.com)Ayaan Hirsi Ali is among the most courageous women (and incidentally among the most beautiful) in the world today. She sought asylum in the Netherlands in 1992 as an escape from an arranged marriage brokered in her native Somalia. When established in Holland she was shocked to find the same radical Islamism she left behind growing in her adopted country and became an outspoken critic. In 2003, already hunted by Islamists for her ideas, she acceded to a seat in Parliament and became a Continental voice for reason against Islamist oppression. She gained enormous attention by authoring the script for, and acting in, a short film entitled Submission, directed by Theo Van Gogh. Van Gogh was shortly thereafter murdered by an Islamist in retribution for the film and her life was also threatened. The New York Times ran an interesting article about her entitled “Daughter of the Enlightenment” last year, which is now available at no charge.

I was planning to write soon to describe the cowardice of her neighbors, who sued—and won a court victory—to have her evicted from her apartment. The problem: she is so hunted by Islamists and under such heavy security that it causes a nuisance to neighbors who must put up with the security and fear for their own safety should the building be the target of an attack. See this post at Volokh.com for details, which includes links to an English translation of the court decision. An article decrying this injustice and promoting Ayaan Hirsi Ali’s book, The Caged Virgin, recently appeared in Slate.

Today, however, that injustice has been compounded beyond comprehension. Rather than celebrated as a national treasure, this remarkable woman has been stripped of her Dutch citizenship by a bureaucrat—the Minister of Immigration and Integration—because she “lied on her citizenship application” by using a false name. This is a breach of Dutch law and she is being forced to flee Holland. There is now an immigration debate raging in the U.S., and I have no sympathy with those who insist that all they seek is “for immigrants to follow the law,” but it is worth asking in this case: Why did she lie?

She lied because she feared that her family would find her in the Netherlands after her escape and altered her last name on her citizenship application so it could not be easily searched by those who would harm her. See her statement on the affair here. Perhaps most bewildering, the decision to revoke her citizenship was not mandated by the law but was a discretionary act of a “hardline” enforcer of immigration policy. This article in today’s Spiegel Online (English edition) details this action.

In the context of our national debate on immigration, I advocate total neutrality on the part of the government: except to keep out criminals and perhaps those with communicable diseases, the government should remain indifferent to who or how many people may seek a better way of life in the United States. This case, however, is an exception. Ayaan Hirsi Ali is twice a victim, by two anti-American forces stalking the United States today: Islamism and anti-immigrationism. It is a moral imperative that the United States extend a public invitation, courting Ayaan Hirsi Ali and making certain she knows how welcome she would be here. Drawing her to the United States would be an important symbol against militant Islam. Breaking a pattern of appeasement, it would say to the world: the United States stands with those seeking shelter from Islamists anywhere. And where else will she be more free to continue her campaign against Islamism, which is a direct benefit to our national security? Furthermore, the attention her arrival in America would generate would make her virtues more known to the world and dramatically publicize just how much the Netherlands has lost by its unjust policy. Such a lesson may erode support for similar bad immigration policies being advocated here.

Fortunately, as the Spiegal article linked above notes, she resigned from Parliament today and her first trip as a non-citizen was a visit to the U.S. Ambassador at The Hague, who offered her any assistance possible. In addition, the American Enterprise Institute, a conservative think tank, nearly immediately offered a position in Washington, DC. These are promising signs and I can only hope she arrives soon. And on a more personal note: if she prefers California to Washington and needs a roommate, I would like it to be known that no matter how intrusive her security needs, I would never seek to have her evicted.

Image: Courtesy of Neva Paintings

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Posted in: Foreign Policy and War, Individual Rights and Law, Religion

Saturday, May 13, 2006

A Victory for ‘Abstract Concepts of Personal Autonomy’

Posted by Larry Salzman at 8:22 pm

About a week ago the United States Court of Appeals for the DC Circuit told a lower court that it was wrong to dismiss out of hand and must reconsider a claim “whether the Due Process Clause [of the U.S. Constitution] protects the right of terminally ill patients to decide, without FDA interference, to assume the risks of using potentially life-saving investigational new drugs that the FDA has yet to approve . . .” See Abigail Alliance for Better Access to Developmental Drugs v. FDA. The opinion is filled with qualifiers, as it must be given the state of constitutional law in this area, but it is instructive for just that reason and nonetheless remarkable.

Since roughly the Progressive Era, the principle of liberty has been under direct attack by those who have largely succeeded in gutting the Constitution’s due process clauses. Previously, the U.S. Supreme Court understood the Constitution’s guarantee of “due process” to protect individuals against legislative acts that were not enacted in furtherance of legitimate governmental purposes, but were mere acts of force wielded at the behest of majority vote. In the 1874 case of Loan Association v. Topeka, for instance, the Court wrote that:

“[T]here are…rights in every free government beyond the control of the State.”

…

“There are limitations on such power which grow out of the essential nature of all free governments….No court, for instance, would hesitate to declare void a statute which enacted that A. and B. who were husband and wife to each other should be so no longer, but that A. should thereafter be the husband of C., and B. the wife of D. Or which should enact that the homestead now owned by A. should no longer be his, but should henceforth be the property of B….”

“To lay with one hand the power of the government on the property of the citizen, and with the other to bestow it upon favored individuals to aid private enterprises and build up private fortunes, is none the less a robbery because it is done under the forms of law…. This is not legislation. It is a decree under legislative forms.”

The legal doctrine of “substantive due process” embodied the idea that laws violating certain pre-political, moral rights, which establish the purposes of government, may not be upheld, regardless of whether they were enacted with all the right procedures in place. Today the phrase is almost an epithet in many judicial and academic circles because the judiciary has largely institutionalized the view that “due process” does not properly speak to substantive limits on the content of legislation. As the Supreme Court reminded us just last term in the controversial Kelo v. New London eminent domain case, today the government most certainly is able “to lay with one hand the power of the government on the property of the citizen, and with the other to bestow it upon favored individuals,” assuming that before doing so the legislature makes a determination that it will result in some public benefit.

And so it is worth some note that an appellate court has said “[d]espite the FDA’s claims to the contrary . . . it cannot be said that government control of access to potentially life-saving medication ‘is now firmly ingrained in our understanding of the appropriate role of government’ so as to overturn the long-standing tradition of the right of self-preservation.’” It may be difficult for non-lawyers to grasp that this watered down statement is an unusually straightforward defense of the principle of liberty, particularly if one reads the opinion and sees how much more water is spilled. But it may help to consider the thorough confidence of the dissent, which argues that by allowing a lower court to even hear a case on this subject—presenting the most minimal risk to the FDA’s total control over what drugs terminally ill individuals may ingest—the Court has engaged in judicial subjectivism and invented a new individual right “deduced [not from law, but] from abstract concepts of personal autonomy.”

For terminally ill patients to decide solely on their own what drugs they should take ignores the “intense and complicated scientific and moral debates about how best to regulate new drugs” and, according to the dissent, is an affront to the “particular balance already struck by Congress and the Executive.” The right thing to do, under the law as understood by the dissent—which in my estimation is more representative of the majority of judicial opinion—is for these patients to place their faith in democracy, “in which the voices of votes allied with these respondents may one day be heard in the halls of Congress.”

The DC Circuit has said, haltingly, “No,” at least not in this case.

(case citations have been omitted for ease of reading)

Posted in: Individual Rights and Law