kelo

Kelo and the MSM
The Supreme Court recently upheld decades old law that allows government to take private property for public use, if the property owner is paid just compensation. The media, playing on the fears of those that it expects to contribute to its ratings (not unlike local news coverage of every robbery and abduction), decided to utterly lie about the holding and precedent of US takings law.

A lawyer friend, and land use expert deeply familiar with constitutional issues involved in the takings clause, writes this:

The case really changed little in the law. The plaintiffs were in effect trying to get the court to overrule Berman v. Parker, the 1954 case allowing the use of eminent domain for urban redevelopment -- condemning all property within a blighted area and then transferring title to private parties for redevelopment (a principle followed in a even broader context in a 1984 case from Hawaii). The urban renewal program certainly had some major problems with how it was carried out in some cities, but the legal principle that this is a "public use" is long standing, though long contested by the property rights crowd.

Much of the media treatment of the decision was abysmal. NBC's report last night said this was a major and new expansion of govt authority to take your home for any reason whenever it wanted. Clearly they hadn't bothered to read the opinion, only the press releases from the plaintiffs who lost. The majority and concurrence make it abundantly clear that there must be a comprehensive plan, a general public need being addressed, and not being employed simply to benefit a single private party.
Whether one thinks such use of govt power is wise or not (and I would be in the camp that sometimes it is, sometimes it is not, it all depends on the specific facts of the case), the decision is far from what its opponents and most of the mainstream media have portrayed it. Unfortunately a lot of folks confuse the policy question (should govt be doing this type of thing and under what circumstances) with the constitutional one.

There are also some interesting undercurrents of judicial activism and deference to legislative judgment as to where to draw lines (e.g., O'Connor saying the court can decide it is ok to condemn land for a privately-owned sports arena but not for an economic development project, while Stephens says that distinction amongst the scope of public purposes is best left to the legislature acting within broad constitutional limits), but that is for another day.

And he's right. More on the activism bit later.

springsteen on the failure of war

Andrew (really, Bruce) on the failure of war, 2

I look forward to Lily's critique of Berry's "Failure of War" essay. As mentioned below, my primary reaction, matched with his "Two Minds" essay, has been a fear that our current paradigm causes our (sometimes unconscious) conclusion that violence is the sole, ultimate enforcement of a norm that we wish to maintain.

In any event, I was listening to Bruce Springsteen's new "Devils and Dust." Realizing this steps outside normal means of point-making on this site, I found the lyrics helpful to Berry's point:

I got my finger on the trigger
But I don't know who to trust
When I look into your eyes
There's just devils and dust
We're a long, long way from home, Bobbie
Home's a long, long way from us
I feel a dirty wind blowing
Devils and dust

I got God on my side
I'm just trying to survive
What if what you do to survive
Kills the things you love
Fear's a powerful thing
It can turn your heart black you can trust
It'll take your God filled soul
And fill it with devils and dust

Well I dreamed of you last night
In a field of blood and stone
The blood began to dry
The smell began to rise
Well I dreamed of you last night
In a field of mud and bone
Your blood began to dry
The smell began to rise

We've got God on our side
We're just trying to survive
What if what you do to survive
Kills the things you love
Fear's a powerful thing
It'll turn your heart black you can trust
It'll take your God filled soul
Fill it with devils and dust

Now every woman and every man
They want to take a righteous stand
Find the love that God wills
And the faith that He commands
I've got my finger on the trigger
And tonight faith just ain't enough
When I look inside my heart
There's just devils and dust

(chorus)

It'll take your God filled soul
Fill it with devils and dust

Lily on Berry's "Two Minds" essay

Lily on Berry's "Two Minds" essay

The essay in Citizenship Papers called "Two Minds" is also interesting. Many thanks to Andrew for pointing it out to all of us.

The discussion of the two different ways that humans think is very useful. I find myself, however, a little surprised at the vehemence of Mr. Berry's normative judgment between the Rational Mind and the Sympathetic Mind: the former is Bad, the latter is Good. Since he acknowledges upfront that, for the sake of discussion, his analysis of these two different kinds of intelligence necessarily renders them "allegorical, too neat, and too separate," I wonder why he is so unhesitating throughout the rest of the essay, in his condemnation of the Rational Mind.

I think I'd find his discussion of the topic somewhat more convincing - and useful - if he seemed to think that the Rational Mind had at least some usefulness or worth. Seems to me it'd be more accurate to say that each mode of thought is what it is, for better or worse, and the two can complement and balance each other. The person of full integrity is the one who has integrated the two - that is, the one in whom the two "minds" are in harmony and balance. Decisions are made with reference to both reason AND emotion, rationality AND intuition.

Perhaps Mr. Berry's strong endorsement of the Sympathetic Mind over the Rational Mind is employed at least partly as a rhetorical device to draw out the differences between the two? I'd be very interested to hear whether he has anything to say elsewhere about how/whether we can integrate the two, both on the collective and individual levels; and/or whether we should try.

Bizarre moments in Justice

Be Ready for this:

I have now seen the strangest moment in all of the history of Americans responding to Justice.

While watching AP's live camera on the crowd during the Jackson verdict announcement, I noticed a lady releasing a white dove for every count of "not guilty."

This ancient symbol of peace. Used for not-guilty verdicts at the molestation trial of a pop singer who compares himself to Peter Pan.

We have sunk this low. But at least it's pretty damn amusing.



rejoice, rejoice

Andrew on Berry, 1

Andrew on "The Failure of War"

Somewhere towards reading the last paragraphs of "The Failure of War," I realized I had hardly given due attention to this third essay in Wendell Berry's latest collection of essays, The Citizenship Papers. With some frustration, I experienced that painful realization of having, more or less, slept through the last about four pages of text. I remembered some of his arguments, I agreed with some and not others (Berry wonders why we think the value judgments we make when allowing abortion and capitol punishment won't bleed over from the state to individuals; we have externalized the costs of war so as to vastly under-appreciate those costs; global capitalism is the same as war - corporations, aimed at conquest, plunder lands, placing no value on the health of nature or human communities); but, I read the majority of this essay, the first time, denying the radicalism of Berry's argument.

Berry is not arguing against unilateral force, and for UN Security Council approval for war. He is not posing a plea for so-called just wars. To do war is always, Berry says, to do war on one's self. Wars damage the world. It is not OK to enter a war to conquer land, nor to assure imports of a resource; but it is also not OK to enter war as a response to terrorist attacks, nor preemptive strikes against naval bases. Berry supports no war, and that radical stance is too easily half-read, half slept-through.

Largely, I realized Wendell Berry's point while reading his well-what-do-we-do-about-it section. If war is never good, how do we proceed? Can we strive to release ourselves of the conviction that we can solve our problems with violence? Berry proposes that our current predicament of modern warfare forces this question upon us:

How many deaths of other people's children by bombing or starvation are we willing to accept in order that we may be free, affluent, and (supposedly) at peace?

And his answer to this question, a question so like Sunday morning rhetoric lost on us while we read weekday news stories, is what forced me to turn back to the start of this essay to re-read.

None. And I know that I am no the only one who would give that answer: Please. No children. Don't kill any children for my benefit.

And upon reading Berry's "Two Minds" essay, some four or five down the way, I became haunted by my reaction to "The Failure of War." In "Failure," Berry gives some faint idea of what we can do to not be dependant on force. We can emphasize self-sufficiency, quitting the import-dependency (foreign and cross-country) on food and natural resources. OK, I thought. This is a step to preserve national security, and some isolationalist positions could make war less likely.

That was my response. And it was half-hearted because I could, and cannot, escape the rational conclusion that only force can assure compliance. Only force can make a genocidal leader stop; only force can prevent crime (forced penitence giving us the name for penitentiaries); and only force, as we were so often reminded by our Leader, can assure compliance with international law. And I cannot escape a mindset that accepts this as, albeit sad, fact.

With reading "Two Minds," one comes to the full thrust, beyond glassy eyed pacifism, of Berry's "Failure of War" essay. Ending dependency on war will not come about with shifts in foreign policy. It will and can only come about with a paradigm shift in Human thinking. That needed shift is from exclusive reliance on what Berry calls the Rational Mind to a mindset that includes the Sympathetic Mind. We will dig into this more (as I'm springing this inclusion of a second essay unfairly on Lily). For now, I will quote two paragraphs. He has just explored the Sympathetic Mindset that acknowledges that one's obligation to oneself cannot be isolated from one's obligation to everything else. "The whole thing is balanced on the verb to love. Love for oneself finds its only efficacy in love for everything else."

This condition of lawfulness and this set of laws did not originate in the Rational Mind, and could not have done so. The Rational Mind reduces our complex obligation to care for one another to issues of justice, forgetting the readiness with which we and our governments reduce justice, in turn, to revenge; and forgetting that even justice is intolerable without mercy, forgiveness, and love.

Justice is a rational procedure. Mercy is not a procedure and it is not rational. It is a kind of freedom that comes from sympathy, which is to say imagination - - the felt knowledge of what it is to be another person or another creature. It is free because it does not have to be just. Justice is desirable, of course, but it is virtually the opposite of mercy. Mercy, says the Epistle of James, "rejoiceth against judgment."

The Sympathetic Mind is one that recognizes that our full humanity can only be approached with something we would, in our current socially conditioned mindsets, call irrational. With the Sympathetic Mind, "We forget whatever we know about the physiology of the brain, and we think; we forget what we know of anatomy, the nervous system, the gastrointestinal tract, and we work, eat, and sleep. We forget the therapies of 'human relationships,' and we merely love the people we love, and even try to love the others.... The Sympathetic Mind leaves the world whole, or it attempts always to do so. It looks upon people and other creatures as whole beings. It does not parcel them out into functions and uses."

I am haunted by my own stuck-ness in a mindset given me by society. And it is no fear-less thing wondering the extent to which I should allow my Rational Mind to give way to the Sympathetic Mind. But, I don't need Berry to know this is needed and right. The Rational Mind, when it is all we look to, denies our humanity.

The failure of war is a failure of human capability. Rather, it is a failure of our achieving our capability to love, to reach our human potential. I hope Berry is right, because. I hope we have a world to look forward to that escapes the trap of violence we live with now.

Wendell Berry's essay, The Failure of War

Wendell Berry's essay, The Failure of War

We're getting ready to start up a discussion about an essay by Wendell Berry called "The Failure of War." The essay can be found in Berry's most recent book of essays, Citizenship Papers (Shoemaker & Hoard, 2003). Citizenship Papers is a thoughtful book that Andrew got me started reading, and, much as I disagree with much of what the author says, I'd certainly recommend it to anyone.

Berry's premise in "The Failure of War" is summed up by the first sentence of his essay: "If you know even as little history as I do, it is hard not to doubt the efficacy of modern war as a solution to any problem except that of retribution -- the 'justice' of exchanging one damage for another, which results only in doubling (and continuing) the damage and the suffering." War, in other words, is useless.

The essay goes on to explain that war's uselessness lies in a paradox: it is impossible to damage your enemy without also opening yourself up to being damaged in the same way. "You cannot kill your enemy's women and children without offering your own women and children to the selfsame possibility." Modern rhetoric about war, moreover, reflects the fact that most people are aware that war is useless and bad; this is why most wars are fought with peace as their justification (the current war in Iraq being a prime example). The irony of this rhetoric is that peace can never be forged by war. Rather than ensuring the preservation of those who wage it, war cannot but result their self-destruction.

Berry then moves to comparing the modern American economy to modern American warfare. Our energy and agricultural policies are geared towards consuming everything we can get our hands on from abroad, instead of husbanding the resources (natural and human) that we already have at home. This practice is paradoxically self-destructive in the same way warfare is: we appear to be consuming others, but in fact we are consuming ourselves.

After a haunting plea for our government to stop killing the children of other nations on our own and our children's behalf, Berry closes with Christ's exhortation to love our enemies, which he says is the only real way that humanity can make progress.

I'll save my own opinion and comments on the essay for future posts. Hopefully others will chime in as well.

greenhouse gasses do, in fact, have greenhouse effects

If any readers can explain President's hesitancy to acknowledge that humans and our air pollutants have something to do with the climate, I look forward to your comments below. The President was asked head on during a press briefing yesterday, "do you believe that climate change is manmade and that you, personally, as the leader of the richest country in the world, have a responsibility to reverse that change?"

And he refused to answer that question. Rather, like the "hard work" of Iraq, climate change is a "serious long-term issue that needs to be dealt with."

There is no doubt that the global climate changes regardless of human impact. That glaciers no longer grace our backyards is evidence enough for me.

It should be evidence enough for Bush to notice that this off-colored emission from cars floats up into the sky. And multiplying that emission a quadrillion times to account for what vehicles emit, one is not hard pressed to note a human contribution to the atmosphere. Unless our gasses magically have, contrary to the findings of the great majority of those that study this, no affect (say, greenhouse-like quality) on Earth...unless the gasses happily dither away...then our President, in not acknowledging this human contribution is either 1) an idiot, or (more likely) 2) deceptive/lying/captured-by-interest-outweighing-Earth.

While we wait for his better senses to take hold, look with me at this article. It explores the edits made by a White House official on several reports issued in 2002 and 2003. Mr Cooney "removed or adjusted descriptions of climate research that government scientists and their supervisors, including some senior Bush administration officials, had already approved."

Who is this man that, after researchers and administration officials had already edited the reports, had the power...neigh, must have had the over-riding knowledge about climate change, to make further changes to the reports?

Before going to the White House in 2001, he was the "climate team leader" and a lobbyist at the American Petroleum Institute, the largest trade group representing the interests of the oil industry. A lawyer with a bachelor's degree in economics, he has no scientific training.

Yes. a former Big Oil lobbyist. Awesome, isn't it, that this Administration gives him the final edit on policy positions dealing with what we will leave behind to countless generations.

Giving this guy the editor's pen for mark-ups and revisions on climate change is somewhere akin to praising Hugh Hefner's critique on the objectification of women.

rluipa, two

RLUIPA as a result of Smith
(this continues on the post below)


The free exercise portion of the Religious Clause (I'm continually playing with the Rhetoric, here) was abruptly shifted with Scalia's ruling in Employee Division v. Smith. What had become a vehicle for broad, constitutionally mandated accommodation of religious practice was dwarfed into a phrase that protects religious practice from government burdens only where the government acts, quite specifically, to quash a religion. Smith allows a free exercise challenge only where government laws are not generally applicable.

While many observers had grown wary of the broad protections the free exercise phrase was providing, Smith came as a shock to many--that government criminal laws, so long as they were generally applicable, were not to be subject to free exercise challenges. In response to Smith, Congress passed the Religious Freedom Restoration Act...more or less to restore pre-Smith jurisprudence. The law required strict scrutiny to government burdens on religious exercise.

The Court overturned RFRA, with fairly good and obvious reasoning: the law had no pinning on any Congressional power to act. Thus, cam RLUIPA. Congress narrowed it's focus to institutionalized persons and land use--and pinned (precariously, for land use) the law on the commerce and spending clauses. RFRA had been pinned on the 14th amendment, and that's a loser- especially with this Court.

I still must refrain from the land use aspect of this law. In the case before us, the Court found the essentials: the law only applies where stae and local governments take federal money...so the spending clause is satisfied. Second- this is a clear result of what Smith promotes; to wit, legislative acomodation.

Smith denies presumed, Constitutional accomodation. Scalia said, in effect, if legislators want to accomodate religious practice, they can do so themselves. Hence, RLUIPA. So long as the legislators have the requisite power to legislate, they can allow religious practice to their hearts content. The line--as far as the joints between accomodation and establishment--is, as this case makes clear, where the accomodation is not even handed and neutral. Where, in other words, the accomodation is a disguised favoritism.

rluipa

RLUIPA

This week, the Court overturned an appeals court decision that had ruled the Religious Land Use and Institutionalized Persons Act (RLUIPA) unconstitutional, violating the establishment clause. The case deals only with the institutionalized persons part of this Act: section 3 says that no state or local government can impose a substantial burden on religious exercise of a person confined to an institution (prisons, mental homes, and such) unless the government shows a compelling interest in the burden and that it so burdens with only the least restrictive means. The appeals court found that, by so accommodating religious practice over secular practices, the federal government was unconstitutionally favoring and promoting religion…in that institutionalized persons might take on religious practices in order to receive the accommodations.

The Court ruled, unanimously, that RLUIPA does not in fact violate the establishment clause-- and this is the right decision. As far as the legislated accommodation in section 3 goes, this is an easy case. There is nothing constitutionally wrong where Congress creates, legislatively, an accommodation for religious exercise. To rule otherwise would be, if we follow logical conclusions, to find the free exercise clause unconstitutional. What is important, and what Justice Ginsberg makes clear in her decision, is that the accommodation is appropriately balanced so as to not differentiate among bona fide faiths…that it does not single out one faith for privileged status. That is the line government cannot cross in post-Smith response/accommodation (see below, and this will make sense).

This ruling (call it half-way through the discussion of whether all of RLUIPA is constitutional…I will argue the land use portion is not) is one in a series; and, to understand its significance for Religion Clause jurisprudence, the history of prior cases and Congressional action is important.

(but I have to leave the computer...so, TBC)