That Boring Blogger

One of my mythical readers questioned whether I could fairly call the Majority Opinion a good example of strengthening States' rights. After all, as D.H. correctly points out, property rights are basic and this is certainly a Constitutional issue.

My argument would be that the Constitution is appropriately vague about what constitutes "public use," so that it is well and appropriately left to the states to define that term severally. In the great political laboratory that is our states, each state could come up with its chosen definition in the hopes that the states naturally gravitate towards the best.

It is understandable that one would be anxious about such a fundamental right being treated so variably. A reasonable solution to this problem may have been furnished by a letter to the New York Times I read some years back. Simply put appropriate billboards on the highways:

"Warning: You are now entering Connecticut, the Constitution State. Public use is defined more broadly than in many neighboring states."

As always, thanks for reading,

Since the Kelo decision is both topical and controversial, I thought that it might be a nice place to start.

This case concerns a hard-luck city decided to build a commercial park with the goal of bringing more business, jobs and tax revenue into the region. The park was designed with a major corporate tenant in mind. In order to build the park, the city had to purchase a fair amount of land from the folks who currently owned it. In most cases, a deal was worked out, but in a few cases, the owners refused to sell. The city pulled out its “eminent domain” card and sought to take the land, for public use, with just compensation.

For those playing at home, eminent domain is outlined (in reverse) at the end of the second amendment

“…nor shall private property be taken for public use, without just compensation.”

Kelo and others challenged use of eminent domain and the case eventually wound up before on the Supreme Court of the United States.

To state my bias up front, I sympathize with both sides of the decision, but I tend to side with the majority on this case. First, to the dissents. Justices Thomas and O’Connor wrote separate dissenting opinions, but both argued that this decision essentially eliminated the requirement that private property can only be taken for public use. First O’Connor:

“To reason as the Court does, that the incidental public benefits resulting from the subsequent ordinary use of private property render economic development takings ‘for public use’ is to wash out any distinction between private and public use of property – and thereby effectively to delete the words “for public use” from the Takings Clause of the Fifth Amendment.”

And Thomas:

“If such ‘economic development’ takings are for a ‘public use,’ any taking is, and the Court has erased the Public Use Clause from our Constitution.”

These are powerful arguments made all the more powerful by the visceral fear that what we possess is only ours at the leisure of the government. The majority opinion, written by Stevens, simply says that the state legislation, state Supreme Court and even SCOTUS decisions all allow this taking. To decide against would be to invalidate the lower courts decision and deviate from the Federal courts history.

With case law showing that non-blighted property has been found to be condemnable, and that transfers from private entity to private entity can still be within the realm of “public use” the opinion was unable to

“grant petitioners the relief that they seek, [and] the judgment of the Supreme Court of Connecticut is affirmed.”

In the end, I side with the majority because to have done otherwise would have

• Constituted Federal interference with what is essentially a state matter
• Involved writing legislation from the bench

Several state legislatures responded quickly, drafting legislation meant to keep state governments from engaging in these kinds of takings. There are those who wish that the SCOTUS had stepped in here, but I think they were right not to do so. I guess it was just one of those cases where there ought to be a law, but there ain’t.

As always, thanks for reading,

Talk show host Jay Severin has taken to calling John Roberts a "stealth nominee," by which he means that the nominee has relatively few (~50) opinions authored in his name. This leads to the situation in which one cannot really guess how he might respond to reproductive rights question before him. On the one hand, he has said that

"Roe v. Wade is the settled law of the land. ... There's nothing in my personal views that would prevent me from fully and faithfully applying that precedent."

But that comment was not made in the context of a legal decision. Alternatively, as Solicitor General for the U.S. Solicitor General under President Reagan, he apparantly argued against reporductive rights. Some have discounted that statement as an example of a lawyer arguing on behalf of his client. The truth is that Roberts is a relatively unknown quality (although I tend to side with those who feel he would be fairly conservative).

I would characterize his nomination as an interesting bet. President Bush has bet that

• Roberts will hold those values which Bush holds and that
• His paucity of documented opinions, combined with his unrelated credentials, will lead to a dignified confirmation

I really don't know what to expect from the confirmation process, but from what I have read, it seems a good bet that it will be from the Alberto Gonzales mold: No filibuster, lots of pointed questions, ultimately a succesful nomination.

As always, thanks for reading.

Given the anticipated 2 year hiatus from action in the world of Social Security blogging, this webpage shall be henceforth largely dedicated to the wholly unrelated topic of the Supreme Court of the United States. On the upside, this gives me more topical material to cover, through the confirmation of the next justice and decisions as we start to learn where said justice stands. On the downside, this involves your humble correspondent exchanging a topic on which he had some amount of credentials for a topic on which he has none.

I can hear the hue and cry of my mythical readers: "but J.G., the Supreme Court simply isn't a boring subject!" Rest assured that, when viewed through the appropriate lens, the life can be drained from virtually any subject.

For those mythical readers that choose to continue on this flight of fancy, thanks for reading. For those that do not, I shall see you when the world next decides to take steps towards fiscal responsibility.

It would appear that primary purpose of this blog -- to provide advocacy to the dozens of members of Congress who check it hourly for updates -- has come to a rather lengthy suspension. The Boston Globe reports that Social Security overhaul will almost certainly be pushed into the 2006 session. At that point, one can imagine those congressman up for re-election being too timid to vote for any significant change.

I recognize both the good and the bad in this developmemt. On the good side, some of the proposals on the table would have had some serious consequences, like transferring risk from the Federal Government to individuals, or saddling us with massive amounts of debt. However, it is very likely that Trust Funds are going to go bankrupt in the 40's, and a relatively small set of changes today, could have significantly helped. It is disappointing that the Federal Government could not figure out how to do that.

In the meantime, your humble correspondent will endeavor to keep you appraised of the latest developments and perhaps coalesce a complete suggestion of his own.

As always, thanks for reading.

For those of you who haven't read Thomas Stoppard's Jumpers, I highly recommend it. It's about people who end up in careers as if driven by their names. Some actual examples include Dr. Alan Heavens and Bob Walk. Also included in this wonderful list should be Thomas R. Savings, Trustee for the Social Security Administration. Except that if he continues to author studies like this one, his critics may take to calling him Thomas Ain't Savings.

The study shows that folks who contribute 4% of their salary to Personal Retirement Accounts (as payroll taxes) would have benefits equal to what they are guaranteed under the current system. I was going to talk about how this study is probably correct on average, but makes the mistake of treating an uncertain outcome (the stock market) as being worth as much as a certain outcome (guaranteed benefits as per Social Security). I could have gone on to discuss the question of how Congress would manage a portfolio like that in the people's best interest, but frankly, what really interested me was the source of this story -- U. S. Newswire.

It was the second sentence (emphasis added) which made me curious about this news.

"WASHINGTON, July 12 /U.S. Newswire/ -- Critics of President Bush's proposal to reform Social Security argue that it will result in benefit cuts. But that is because they are focused on a proposal to create personal accounts funded by 2 percent of payroll contributions in conjunction with progressive indexation of benefits. With the 4 percent contribution favored by the White House, however, a Bush-style Social Security system would provide benefits equal to or greater than what the current system promises, according to a new report from the National Center for Policy Analysis (NCPA). "

I had to wonder about the extent to which this "news" appeared to be "advocacy." So I checked out the section entitled About USN. In this section they proudly promote their credentials:

• In Lexus-Nexus
• Picked up by AOL, Yahoo and Google

But they also unabashedly talk about working for the Clinton/Gore campaign, as well as working for George W. Bush. I'm almost tempted to talk about how refreshingly honest this section is, but what holds me back is the name, "U.S. Newswire." There is, at least, the implication that the owners of the website are engaging in what we would think of as professional journalism, but the sentence referenced above suggests otherwise.

To you, my faithful, hypothetical audience, your correspondent can assure that he has taken his Blogger's oath: to never pertend to have actually engaged in journalistic professionalism, regardless of the costs.

As always, thanks for reading,