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Even When They Get It Right, They Get It Wrong
Topic Started: Nov 4 2005, 06:17 PM (537 Views)
QuirtEvans
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I Owe It All To John D'Oh
The conservatives in Congress can't help themselves, they just can't help themselves.

The House voted today, by 376-38, in favor of a bill that would try to bar localities from using eminent domain power to take property for economic development.

Personally, I think that's the right thing to do. Personal property rights are too fundamental in this country. It goes against our national identity to take property away from one person and give it to another, even with just compensation, simply because it will benefit the community more if the second party owns it.

So the House, under the Republican leadership, is doing the right thing. And the Bush Administration is doing the right thing too, because it supports this bill.

But, even when they are doing the right thing, they can't resist taking cheap shots in the process.

The reason for this bill ... the Supreme Court found that using eminent domain for economic development was consistent with the Constitution. That's a decision that the conservative Republicans should respect, because it's an example of judicial restraint. It's following the Constitution. It's deferring to the power of the legislature. And it's wholly within the legislature's power to reverse the effects of that decision, as the House voted to do today.

But nooo, the Republicans couldn't simply say that they were addressing an inequity in the Constitution. They had to blame it on the Supreme Court. They had to call the Supreme Court's decision "infamous". They had to accuse the Court of failing to follow established principles of Constitutional law.

It just proves how morally bankrupt the conservatives are. Instead of celebrating the fact that the Court said that this was really a legislative decision ... instead of celebrating the bipartisan support for ensuring that private property rights are respected ... the conservatives had to launch a final few shots at the Supreme Court. Thinking about the upcoming debate over Judge Alito, no doubt.
It would be unwise to underestimate what large groups of ill-informed people acting together can achieve. -- John D'Oh, January 14, 2010.
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JBryan
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I am the grey one
I suppose I agree that taking cheap shots at another branch of government is tawdry in a piece of legislation but I am still mystified by SCOTUS' interpretation of "public use" in the Fifth Amendment. I find a lot to criticize about that decision myself.
"Any man who would make an X rated movie should be forced to take his daughter to see it". - John Wayne


There is a line we cross when we go from "I will believe it when I see it" to "I will see it when I believe it".


Henry II: I marvel at you after all these years. Still like a democratic drawbridge: going down for everybody.

Eleanor: At my age there's not much traffic anymore.

From The Lion in Winter.
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Rick Zimmer
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Fulla-Carp
I wonder how many of these fine conservatives who seek to strip the states of their right to control land use in their own communities are going to support the new Supreme Court nominee because he wants wants to give more power to the states.

The hypocrisy is overwhelming.
[size=4]Violence is incompatible with the nature of God and the nature of the soul -- Benedict XVI[/size]
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JBryan
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I am the grey one
I suppose personal property rights is a concept foreign to you. Fortunately, it is not a concept foreign to the Constitution as interpreted by those who are not given to searching for emmanating penumbra and repairing to foreign precedents in law. I think John Roberts will probably understand that giving more power to the states does not mean stripping more power from the people. It will probably be from the opposite direction.
"Any man who would make an X rated movie should be forced to take his daughter to see it". - John Wayne


There is a line we cross when we go from "I will believe it when I see it" to "I will see it when I believe it".


Henry II: I marvel at you after all these years. Still like a democratic drawbridge: going down for everybody.

Eleanor: At my age there's not much traffic anymore.

From The Lion in Winter.
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Larry
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Rick, your last post was ridiculous.

And Quirt, explain to me how you think the ruling by the supreme court was following the Constitution? It is a perversion of imminent domain. Taking private property through imminent domain for the public good means roads, right of ways for needed infrastructure, not so a developer can build a shopping center.

Of the Pokatwat Tribe

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Rick Zimmer
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JBryan
Nov 4 2005, 09:13 PM
I suppose personal property rights is a concept foreign to you. Fortunately, it is not a concept foreign to the Constitution as interpreted by those who are not given to searching for emmanating penumbra and repairing to foreign precedents in law. I think John Roberts will probably understand that giving more power to the states does not mean stripping more power from the people. It will probably be from the opposite direction.

I am probably the only one in this forum who has ever been involved in proposing and implementing the use of eminent domain for private purposes for local economic development projects. So, I know a likttle something about this and how it works, what its limits are and what the rights and benefits are to the property owners and residents whose lands are taken.

If someone here wants to tell me how a city that is trying to deal with economic distress caused by blighted and slum conditions is going to clean it up, I am open to listening. But pelase do not explain to be the altruism of property owners and how they will resolve the problem themselves. if it made economic and financial sense for them to do so, they, as business men and investors, would do so.

Or, if someone wants to claim that slums and blight do not effect the economic condition of an entire community, hence cleaning them up is not for the greater good and a legitimate public purpose, please explain your reasoning to me.

And finally, if someone wants to tell me why a state legislature, which ahas traditionally had the right to land use control within its own state, cannot choose on its own to use its power of eminent domain (or eliminate its use for that matter) and should instead be subject to the wisdom of the Congress on this issue, please explain your reasoning on this one to me as well.

If the US Constitution allows it but does not mandate it as the Supreme Court says, why not leave this to the states to decide on their own? It is, after all, their power of eminent domain that is being used.

But if the Congress thinks that the property rights of slum lords should be protected, then let them propose, approve and send to the states a Constitutional Amendment for ratification, if they have the guts to go that far as oppose to just pander for votes knowing the law will be overturned again.
[size=4]Violence is incompatible with the nature of God and the nature of the soul -- Benedict XVI[/size]
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JBryan
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Conspicuously absent from this post of yours is even any hint of a mention of personal property rights.

Fortunately, the Constitution is not so silent on the matter.

Unfortunately, we have Supreme Court Justices who have a problem understanding that "public use" does not mean seizing the property of one individual to hand it over to another.

Fortunately, John Roberts appears to be a man who can make that distinction and, again, as your words seem to fall short of, can see that the "people" actually have enumerated rights under the Constitution at least as compelling if not more than the enumerated powers of the state.
"Any man who would make an X rated movie should be forced to take his daughter to see it". - John Wayne


There is a line we cross when we go from "I will believe it when I see it" to "I will see it when I believe it".


Henry II: I marvel at you after all these years. Still like a democratic drawbridge: going down for everybody.

Eleanor: At my age there's not much traffic anymore.

From The Lion in Winter.
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QuirtEvans
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I Owe It All To John D'Oh
Quote:
 
Quirt, explain to me how you think the ruling by the supreme court was following the Constitution? It is a perversion of imminent domain. Taking private property through imminent domain for the public good means roads, right of ways for needed infrastructure, not so a developer can build a shopping center.


I've read the Constitution over and over again, and I find no reference that says that eminent domain can only be used for roads and rights of way needed for infrastructure.

What the Constitution says is very simple:

Quote:
 
nor shall private property be taken for public use, without just compensation.


The Supreme Court decision was equally simple. They basically said, the local government decided that the taking in this particular instance was a public use. That decision of the local government deserves some deference, and we're not going to overturn it unless there's no reasonable basis for it. In other words, it isn't the job of the courts to decide what a "public use" is; that's the job of the legislature, and we're not going to get in the way unless they are totally irrational about it.

That seems to me to be exactly the sort of decision that conservatives have been screaming for. It holds strictly to the words of the Constitution, and says that it isn't the job of the courts to get in the way of locally elected government.

Moreover, the Court noted that, if the state or federal government didn't like how the eminent domain power was being used, they had the power to stop it. On the other hand, if the Court had found that this was an unconstitutional use of eminent domain, there would be no way to reverse it, short of a constitutional amendment. Again, giving the elected branch of government the power to decide how this issue should be handled. Again, exactly what conservatives typically want.

It seems to me that all the conservatives complaining about this decision are really asking for judicial activism in the area of property rights. They are saying, in effect, the courts should have jumped in and told the local government that the local government didn't have the right to decide that this particular use of land was a "public" use. Exactly the opposite of what they are saying the courts should do in every other instance (except, of course, the Second Amendment).
It would be unwise to underestimate what large groups of ill-informed people acting together can achieve. -- John D'Oh, January 14, 2010.
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Phlebas
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Bull-Carp
Rick Zimmer
Nov 4 2005, 09:31 PM

If someone here wants to tell me how a city that is trying to deal with economic distress caused by blighted and slum conditions is going to clean it up, I am open to listening. But pelase do not explain to be the altruism of property owners and how they will resolve the problem themselves. if it made economic and financial sense for them to do so, they, as business men and investors, would do so.

Or, if someone wants to claim that slums and blight do not effect the economic condition of an entire community, hence cleaning them up is not for the greater good and a legitimate public purpose, please explain your reasoning to me.

And finally, if someone wants to tell me why a state legislature, which ahas traditionally had the right to land use control within its own state, cannot choose on its own to use its power of eminent domain (or eliminate its use for that matter) and should instead be subject to the wisdom of the Congress on this issue, please explain your reasoning on this one to me as well.

If the US Constitution allows it but does not mandate it as the Supreme Court says, why not leave this to the states to decide on their own? It is, after all, their power of eminent domain that is being used.

But if the Congress thinks that the property rights of slum lords should be protected, then let them propose, approve and send to the states a Constitutional Amendment for ratification, if they have the guts to go that far as oppose to just pander for votes knowing the law will be overturned again.

Rick,

Two wrongs don't make a right. Just because some people are slum lords, or do not develop their property, or are not civic minded enough to better their neighborhoods, does not give the government the right to take private property away.
The people who are against that SCOTUS ruling fear the slippery slopw, and rightly so. Where does it end? I decide not to mow my lawn, and point the bricks on my house, and it's deamed a "blight on the neighborhood," and can be taken by the government? (ok, a bit of a stretch)
Random FML: Today, I was fired by my boss in front of my coworkers. It would have been nice if I could have left the building before they started celebrating. FML

The founding of the bulk of the world's nation states post 1914 is based on self-defined nationalisms. The bulk of those national movements involve territory that was ethnically mixed. The foundation of many of those nation states involved population movements in the aftermath. When the only one that is repeatedly held up as unjust and unjustifiable is the Zionist project, the term anti-semitism may very well be appropriate. - P*D


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Dewey
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HOLY CARP!!!
I deal a bit with the balance of personal property rights and public welfare myself. The states have the right to control how land is used within their jurisdiction, through zoning and comprehensive planning. This right, however, is one of control - not ownership - and this control does not extend to the taking away of rights that a property owner had at the time of purchase, without compensation. Of course, the government has the right to eminent domain for public use, but the idea that "public use" includes the taking of property merely for another person's private economic development, on the argument that it would increase the tax base, is ludicrous and should send chills down the spine of anyone who is genuinely concerned with individual civil rights.

We're not talking about public condemnation of blighted or otherwise ignored property. The government does, and should, have police rights including confiscation of such property in extreme cases. I've seen this separate issue lumped into this argument as a means to possibly strengthen the pro-confiscation argument. This case was about the public taking of property under the premise of eminent domain, strictly on the basis that another individual's proposed private development would net more tax revenues than the existing use in place by the current property owner. That is not only unconstitutional, but sickening.
"By nature, i prefer brevity." - John Calvin, Institutes of the Christian Religion, p. 685.

"Never waste your time trying to explain yourself to people who are committed to misunderstanding you." - Anonymous

"Oh sure, every once in a while a turd floated by, but other than that it was just fine." - Joe A., 2011

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Larry
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Mmmmmmm, pie!
This whole thing is proof that the wrong side won the civil war.

Of the Pokatwat Tribe

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QuirtEvans
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I Owe It All To John D'Oh
Quote:
 
That is not only unconstitutional, but sickening.


It's neither.

Whether something is a public use or not can be decided by the publicly elected governing body, which isn't a court. Don't like their decision? Vote for someone else. The Supreme Court was simply deferring to the local, elected authority as to what is and is not a public use. This is the sort of deference that conservatives are usually begging for.

It's also not sickening. It's the greatest good for the greatest number. Which underlies the argument that each of you make in favor of torturing terrorists ... because we can save many more innocent lives by torturing one guilty terrorist.

I don't happen to believe that, in most cases, the greatest good for the greatest number should override individual rights. But some conservatives are incredibly hypocritical about this. Individual rights are paramount ... when we are talking about guns and property. If we're talking about less tangible rights, like free speech or due process, suddenly individual rights aren't as important as the overall good.

Sorry, but the question of individual rights versus the general good should not be decided depending on whether the rights in question involve guns or property. The Constitution does not give guns and property special protection, compared to other Constitutional rights.

And Larry, it hardly surprises me that, in a war that was about abolition of slavery versus property rights, you think the wrong side won.
It would be unwise to underestimate what large groups of ill-informed people acting together can achieve. -- John D'Oh, January 14, 2010.
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JBryan
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I am the grey one
Quirt,

What would you say to a local government creating its own definition of "freedom of speech"? Or does the Supreme Court have something to say about what that should mean.
"Any man who would make an X rated movie should be forced to take his daughter to see it". - John Wayne


There is a line we cross when we go from "I will believe it when I see it" to "I will see it when I believe it".


Henry II: I marvel at you after all these years. Still like a democratic drawbridge: going down for everybody.

Eleanor: At my age there's not much traffic anymore.

From The Lion in Winter.
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QuirtEvans
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I Owe It All To John D'Oh
Not quite the same thing, JB, as you well know.

Whether something is "speech" is the same thing everywhere.

Whether a particular use of property is a "public use" is going to be very fact-dependent, and it will be different in different circumstances.

But, since I've addressed your question, please address my point. Why is it that conservatives want the courts to defer to the legislature, EXCEPT on issues involve property and guns? Why are the other Constitutional rights viewed as not as worthy of protection? Is it something you find somewhere in the Constitution?
It would be unwise to underestimate what large groups of ill-informed people acting together can achieve. -- John D'Oh, January 14, 2010.
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JBryan
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I am the grey one
Since when is a complete deference to local governments with regard to personal property rights regarded as protecting Constitutional rights. The only reason speech is defined the same everywhere is because the Supreme Court made it so. Therefore, there is a certain circular aspect to your reasoning.
"Any man who would make an X rated movie should be forced to take his daughter to see it". - John Wayne


There is a line we cross when we go from "I will believe it when I see it" to "I will see it when I believe it".


Henry II: I marvel at you after all these years. Still like a democratic drawbridge: going down for everybody.

Eleanor: At my age there's not much traffic anymore.

From The Lion in Winter.
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Rick Zimmer
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JBryan
Nov 5 2005, 08:37 AM
Since when is a complete deference to local governments with regard to personal property rights regarded as protecting Constitutional rights. The only reason speech is defined the same everywhere is because the Supreme Court made it so. Therefore, there is a certain circular aspect to your reasoning.

It is not deference to local government; it is deference to the state government. Cities and coujnties are only arms of the State; they have no power nor do they even exist outside of that power. And why deference to the state? Because the states have always maintained primary control over land use.

If a state wishes to use this tool to resolve serious land use problems and to strengthen its economy by providing jobs, economic activity and tax revenues, why should the Congress get involved?
[size=4]Violence is incompatible with the nature of God and the nature of the soul -- Benedict XVI[/size]
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Rick Zimmer
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Phlebas,Nov 5 2005
05:40 AM
Rick Zimmer,Nov 4 2005
09:31 PM

Rick,

Two wrongs don't make a right. Just because some people are slum lords, or do not develop their property, or are not civic minded enough to better their neighborhoods, does not give the government the right to take private property away.
The people who are against that SCOTUS ruling fear the slippery slopw, and rightly so. Where does it end? I decide not to mow my lawn, and point the bricks on my house, and it's deamed a "blight on the neighborhood," and can be taken by the government? (ok, a bit of a stretch)

Phlebas,

It is a power which needs to be carefully watched, no doubt about it. In my classes when I teach redevelopment, I tell my students that the power of the government to forcefully take property ranks right up there with the power of the government to take lives and to confiscate money for taxes as among the most severe powers the governemnt has -- and that we as citizens must watch it carefully.

Eminent domain for private purposes should not be used willy-nilly. Those who are upset about the use of eminent domain for these purposes seem to think that a city can use it any place it wants, any time it wants and for any purpose it wants. This is simply not true in any state that allows it. In all states, it is limited only to certain circumstances and then its use is severely restricted and the treatment of the property owners and residents subject to it is highly regulated to ensure fair and equitable treatment.

And property owners never walk away empty-handed, indeed in my experience are most often in a better position financially. Moreo ften than not, when eminent domain is used for this, it is a "friendly" condemnation action, in which the property owner is more than happy to have the city take the property.

As for the two wrongs don't make a right...

The existence of blight and slums has severe consequances on a community. It produces limited tax revenues to offset local costs, and yet slums are usually among the highest cost area a city has to deal with because of crime, health problems, infestations, code enforcement, potential for fires, etc. This directly impacts the property near the slums and within the vicinity, making it less financially viable and hence it begins to deteriorate as property owners cannot bring in the income to maintain the properties or simply sell them to less than desirable owners as they decide to invest elsewhere. Hence slums expand.

And because these areas are a drag on the local economy and cost so much in public funds, other necessary public works and public actions cannot be undertaken in other areas of the community.

These are not isolated properties that do not impact the rest of the community; they most certainly do. To argue that resolving these problems is not an appropriate public need and that public action is not acceptable to solving them is to throw up one's hands in the face of serious local problems.

(As for your not mowing your grass -- we'd get you on weed abatement! Mow it for you and then assess your property for the cost! :wink: )
[size=4]Violence is incompatible with the nature of God and the nature of the soul -- Benedict XVI[/size]
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ivorythumper
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QuirtEvans
Nov 5 2005, 08:30 AM
Not quite the same thing, JB, as you well know.

Whether something is "speech" is the same thing everywhere.

Whether a particular use of property is a "public use" is going to be very fact-dependent, and it will be different in different circumstances.

But, since I've addressed your question, please address my point. Why is it that conservatives want the courts to defer to the legislature, EXCEPT on issues involve property and guns? Why are the other Constitutional rights viewed as not as worthy of protection? Is it something you find somewhere in the Constitution?

Quote:
 
They basically said, the local government decided that the taking in this particular instance was a public use.


Yet they allowed a local authority to define a private development as "public use" -- quite against the established understanding of what "public" and "private" means regarding land, and they allowed that to be subverted.

What is the difference between that and the local authorities deciding that only non-political speech was protected as "free speech"?

You keep hammering on the point that conservatives ought to applaud this decision and that they are hypocrites for not doing so, which is just bad reasoning. There is a principle of subsidiarity that underpins much conservative political thinking (actually, classical liberalism), which says that if the local authority is incompetant to adjudicate or does so against the common good, then a higher authority can be called upon to intervene. This is precisely what happened. As it is, the higher authority ruled in favor of the lower authority so there you have it. But don't try to make this into a case of conservatives wanting to eat their cake and have it too. You simply fail to understand the principles of conservative thinking.
The dogma lives loudly within me.
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JBryan
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Rick Zimmer
Nov 5 2005, 10:51 AM
JBryan
Nov 5 2005, 08:37 AM
Since when is a complete deference to local governments with regard to personal property rights regarded as protecting Constitutional rights. The only reason speech is defined the same everywhere is because the Supreme Court made it so. Therefore, there is a certain circular aspect to your reasoning.

It is not deference to local government; it is deference to the state government. Cities and coujnties are only arms of the State; they have no power nor do they even exist outside of that power. And why deference to the state? Because the states have always maintained primary control over land use.


That is a quibble. Replace local with state and my argument remains the same.

Quote:
 
If a state wishes to use this tool to resolve serious land use problems and to strengthen its economy by providing jobs, economic activity and tax revenues, why should the Congress get involved?


Because it abridges a basic right. That of ownership and control of private property. By your reasoning there is no private property and all property ownership is at the pleasure of the state. In effect, all property is owned by the state. You can torture the language of the Fifth Amendment any way you like but that positition would never square with what we know of the framer's intent.
"Any man who would make an X rated movie should be forced to take his daughter to see it". - John Wayne


There is a line we cross when we go from "I will believe it when I see it" to "I will see it when I believe it".


Henry II: I marvel at you after all these years. Still like a democratic drawbridge: going down for everybody.

Eleanor: At my age there's not much traffic anymore.

From The Lion in Winter.
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Steve Miller
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Rick Zimmer
Nov 5 2005, 09:03 AM
I tell my students that the power of the government to forcefully take property ranks right up there with the power of the government to take lives and to confiscate money for taxes

Unlike taxes, here the government isn't "taking" anything; they're buying it fair and square.

Understand that, and you'll understand tht the whole brouhaha is little more than a squabble over money.
Wag more
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JBryan
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I am the grey one
No, they are not buying they are confiscating with compensation. "Buying" implies agreement between the two parties.
"Any man who would make an X rated movie should be forced to take his daughter to see it". - John Wayne


There is a line we cross when we go from "I will believe it when I see it" to "I will see it when I believe it".


Henry II: I marvel at you after all these years. Still like a democratic drawbridge: going down for everybody.

Eleanor: At my age there's not much traffic anymore.

From The Lion in Winter.
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QuirtEvans
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I Owe It All To John D'Oh
JB, you are more than willing to ask questions, and I replied. Are you not willing to answer questions asked of you?

As I asked earlier:

Quote:
 
But, since I've addressed your question, please address my point. Why is it that conservatives want the courts to defer to the legislature, EXCEPT on issues involve property and guns? Why are the other Constitutional rights viewed as not as worthy of protection? Is it something you find somewhere in the Constitution?


Really, it wouldn't be fair of you to be asking further questions unless you're willing to respond to those asked of you.
It would be unwise to underestimate what large groups of ill-informed people acting together can achieve. -- John D'Oh, January 14, 2010.
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QuirtEvans
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I Owe It All To John D'Oh
Quote:
 
don't try to make this into a case of conservatives wanting to eat their cake and have it too. You simply fail to understand the principles of conservative thinking.


No, it's a case of conservatives trying to squirm out of the logic that they have put forth in other situations. Much like Kay Bailey Hutchison saying that perjury and obstruction of justice are serious offenses when Clinton was the issue, but then saying that they are mere technicalities when her own party's ox is gored.

As to whether they should appeal to a higher authority ... sure, the legislature. If you don't like the behavior of the local government, the state legislature has authority to correct it. And, as Congress just proved, the federal government has influence, too.

As I've said, conservatives only want the Supreme Court to protect certain rights ... property rights and gun rights. The rest, not so much. And THAT is hypocritical, no matter how many angels you ask to dance on the head of a pin.
It would be unwise to underestimate what large groups of ill-informed people acting together can achieve. -- John D'Oh, January 14, 2010.
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ivorythumper
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QuirtEvans
Nov 5 2005, 10:31 AM

As to whether they should appeal to a higher authority ... sure, the legislature.  If you don't like the behavior of the local government, the state legislature has authority to correct it.  And, as Congress just proved, the federal government has influence, too.


The notion that we must go through the legislative process to correct laws that damage our rights is absurd.

Perhaps you don't understand the mechanism of government, that the judiciary adjudicates the laws. This is a right we have as citizens to sue the public authorities if we believe that our rights are being infringed upon.

I am surprised they didn't teach you these things in law school.

You can keep reiterating your perceptions of the conservative mind, but you still obviously don't get it.
The dogma lives loudly within me.
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Larry
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Mmmmmmm, pie!
Quirt writes:

Quote:
 
And Larry, it hardly surprises me that, in a war that was about abolition of slavery versus property rights, you think the wrong side won.


If you really think that's what the war between the states was about, you need to bone up on your history. Slavery had nothing to do with the war.



Of the Pokatwat Tribe

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