Trump dismisses significance of basic property rights with rant on eminent domain

Donald Tump told a Fox News anchor this past week that eminent domain is wonderful and it is perfectly acceptable to take someone’s private property and hand it over to someone else if it means creating jobs and making things better for the collective public welfare.

“I think eminent domain for massive projects, for instance, you’re going to create thousands of jobs, and you have somebody that’s in the way, and you pay that person far more — don’t forget, eminent domain, they get a lot of money, and you need a house in a certain location, because you’re going to build this massive development that’s going to employ thousands of people, or you’re going to build a factory, that without this little house, you can’t build the factory — I think eminent domain is fine,” Trump said.

He was basically agreeing with the wrong-headed majority of justices in the 5-4 decision in Kelo v. New London, which held that the city of New London could take private property if the new owners would generate more tax revenue. I did not think this country was established on the principle that the citizens are merely cash cows to be milked by their government masters.

Justice John Paul Stevens wrote in the Kelo opinion:

“The City has carefully formulated an economic development plan that it believes will provide appreciable benefits to the community, including – but by no means limited to – new jobs and increased tax revenue. As with other exercises in urban planning and development, the City is endeavoring to coordinate a variety of commercial, residential, and recreational uses of land, with the hope that they will form a whole greater than the sum of its parts. To effectuate this plan, the City has invoked a state statute that specifically authorizes the use of eminent domain to promote economic development. Given the comprehensive character of the plan, the thorough deliberation that preceded its adoption, and the limited scope of our review, it is appropriate for us, as it was in Berman, to resolve the challenges of the individual owners, not on a piecemeal basis, but rather in light of the entire plan. Because that plan unquestionably serves a public purpose, the takings challenged here satisfy the public use requirement of the Fifth Amendment.”

The public purpose was to increase tax revenue?

All rights begin with property rights. All other rights, such as freedom of speech and religion, depend on owning a place to stand and practice those rights.

Apparently Trump would have liked to have been on the receiving end of a few eminent domain decisions. “I think eminent domain is wonderful, if you’re building a highway, and you need to build, as an example, a highway, and you’re going to be blocked by a holdout, or, in some cases, it’s a holdout — just so you understand, nobody knows this better than I do, because I built a lot of buildings in Manhattan, and you’ll have 12 sites and you’ll get 11 and you’ll have the one holdout and you end up building around them and everything else, okay?” Trump said. “So, I know it better than anybody.”

For Trump it is all about the money and only about the money. “It’s not right! It’s not right,” he bleated. “Look, they get, the money — you know the way they talk, people would say ‘Oh, it’s turned over.’ It’s turned over for four or five, six, 10 times sometimes what it’s worth! People pay them a fortune. But sometimes you have people that want to hold out just for the — most of the time, I will say, I’ve done a lot of outparcels, I call them outparcels. Most of the time, they just want money, okay? It’s very rarely that they say ‘I love my house. I love my house. It’s the greatest thing ever.’ Because these people can go buy a house now that’s five times bigger, in a better location. So eminent domain, when it comes to jobs, roads, the public good, I think it’s a wonderful thing, I’ll be honest with you. And remember, you’re not taking property, you know, the way you asked the question, the way other people — you’re paying a fortune for that property. Those people can move two blocks away into a much nicer house.”

Sandra Day O’Connor anticipated the likes of the Donald in her Kelo dissent:

“Any property may now be taken for the benefit of another private party, but the fallout from this decision will not be random. The beneficiaries are likely to be those citizens with disproportionate influence and power in the political process, including large corporations and development firms. As for the victims, the government now has license to transfer property from those with fewer resources to those with more. The Founders cannot have intended this perverse result. ‘[T]hat alone is a just government,’ wrote James Madison, ‘which impartially secures to every man, whatever is his own.’”

The right of the individual must be protected from land grabbing socialists no matter how well intentioned they might be.

It also turns out there are practical problems with decisions like Kelo as well as philosophical.

New London seized the homes in question so Pfizer could expand its pharmaceutical operations. Instead the plant was closed and the land stands vacant a decade later.

Pfizer “facility” now is vacant, trash-strewn land.

 

 

Nevada Supreme Court rules too narrowly in free speech case

Nevada Supreme Court

The Nevada Supreme Court made the right decision but for the wrong reason.

In the case of Citizen Outreach vs. State, the court ruled 5-2 that the organization did not violate a 1997 law requiring those who engage in express advocacy to file paperwork with the secretary of state’s office revealing donors and expenditures. The majority said the fliers mailed out by Citizen Outreach during the 2010 election season criticizing Assembly member John Oceguera for being a double-dipper — drawing pay as a North Las Vegas firefighter while serving in Carson City — did not contain the “magic words of express advocacy,” such as “vote for” or “vote against,” which would trigger the need to comply with the law.

The ruling overturned a summary judgment by Carson City District Judge James Todd Russell, who fined the group $10,000 plus $7,600 in costs in 2013. (In a bizarre twist, the court first reported that case was affirmed 5-2, but the ruling and dissents contained identical language. The court blamed a clerical error. This turn of events practically gave Citizen Outreach head honcho Chuck Muth whiplash.)

The corrected ruling stated:

“Because it is undisputed that Citizen Outreach’s flyers do not contain magic words of express advocacy, the flyers were not subject to regulation under Nevada’s campaign practices statutes that were effective in 2010.

“Accordingly, we ORDER the judgment of the district court REVERSED.”

The problem now is that in 2011 the Legislature rewrote the law to remove the question of whether “magic words” — a silly creation of the U.S. Supreme Court — and state that express advocacy “means that a communication, taken as a whole, is susceptible to no other reasonable interpretation other than as an appeal to vote for or against a clearly identified candidate.”

The court majority noted that the secretary of state testified that the change would “make it clear that Nevada does not require” magic words for a communication to be express advocacy.

The problem is not with magic words. The problem is that both the 1997 and the 2011 law blatantly violate both the First Amendment and the Nevada Constitution because they are not “content neutral” and address no “compelling government interest” in curtailing free speech by requiring revealing donors and expenditures under penalty of $10,000 fines.

In a similar case involving a Virginia-based organization that failed to file the proper paperwork with the state, Judge James E. Wilson Jr. stopped televised ads from being broadcast and said,“Nevadans have a right to know who is behind election advertising. … Irreparable harm will occur to the voters and to the electoral process if broadcasting of the Ad is not enjoined, because voters are being deprived of the information to which they are entitled under Nevada law prior to casting their ballots.”

There is no such right to know. A compelling government interest might be public safety, but not whether voters must be told who is donating to a given cause. The voters get to decide what communication is persuasive, whether the source of funding is revealed or not. The voters tell the government what to do, not the other way around.

Article 1, Section 9 of the Nevada Constitution states: “Every citizen may freely speak, write and publish his sentiments on all subjects being responsible for the abuse of that right; and no law shall be passed to restrain or abridge the liberty of speech or of the press.”

NRS 294 clearly restrains and abridges.

The words are clear and unambiguous — “no law shall be passed to restrain or abridge the liberty of speech or of the press” — and thus any state law that does so violates the state Constitution and is null and void from inception. A $10,000 fine in any dictionary is a restraint.

In 1988, Margaret McIntyre was fined $100 for distributing leaflets opposing a school tax levy at a public meeting in Westerville, Ohio. She had violated a state law prohibiting unsigned leaflets — similar to unrevealed donors, don’t you think?

In declaring the Ohio law unconstitutional, Justice John Paul Stevens wrote:

“Under our Constitution, anonymous pamphleteering is not a pernicious, fraudulent practice, but an honorable tradition of advocacy and of dissent. Anonymity is a shield from the tyranny of the majority. … It thus exemplifies the purpose behind the Bill of Rights, and of the First Amendment in particular: to protect unpopular individuals from retaliation — and their ideas from suppression — at the hand of an intolerant society.”

The Federalist and Anti-Federalist papers, as well as “Common Sense,” were all penned anonymously. The former to avoid clouding the message about the new Constitution with personalities, but the latter to avoid being hanged for treason.

In this day and age, donating to certain causes, such as the anti-gay marriage campaign in California, have resulted in threats, intimidation, boycotts and ruined careers.

Justice Clarence Thomas said in a dissent in Citizens United v. FEC:

“I cannot endorse a view of the First Amendment that subjects citizens of this Nation to death threats, ruined careers, damaged or defaced property, or pre-emptive and threatening warning letters as the price for engaging in ‘core political speech, the “primary object of First Amendment protection.”’

As I said, the Nevada high court made the right decision but for the wrong reason. The law itself should have been declared unconstitutional.

There is no constitutional authority for government to drag more information out of a speaker than the speaker wishes to convey, under the excuse that voters are just too darned stupid to evaluate anonymous speech for themselves. Compelled speech is not free speech.

The Legislature should repeal this law or someone should challenge the 2011 version of the law in the courts and make the right argument.

Free speech must be free of government restrictions.