"You Are Such a Bastiat!"

A reminder that every week I cross-post my recent relevant pieces over at Bastiat's Window, the specialty blog set up by Jeremy Horpedahl (a/k/a The LCD) dedicated to documenting examples of the Broken Window Fallacy.

In each case I've appended a brief "Broken Window Analysis" putting the piece in a Bastiat perspective. (Sort of like "Extended Version" DVD's -- so now your insatiable curiosity will compel you to re-read everything I wrote!)

The economically inclined might want to check them out.

Post-Kelo Roundup

The initial reports of the oral arguments from the two eminent domain cases, Kelo v. New London and Lingle v. Chevron, were decidedly pessimistic -- examples here and here.

But, like those supposedly scientific and reliable exit polls on Election Day, the accuracy of those early descriptions is now being questioned somewhat -- examples here and here. When I'm able to review the transcripts myself, I will blog accordingly.

On a side issue, what an utterly silly post from Volokh Conspirator Orin Kerr:

The text of the [Takings] clause says that if private property is taken for public use, then just compensation must be paid. The Constitutional text doesn't address takings for private use at all. Not only would such a taking seem to be allowed by default, but the Constitutional text doesn't even seem to require the government to pay just compensation for it. The text doesn't say, "Private property shall not be taken for private use, nor shall private property be taken for public use without just compensation." It only says "Nor shall private property be taken for public use, without just compensation." Obviously there are good policy reasons why we might not want the Court to read the text this way, and there are also reasons why someone might or might not be a textualist. Still, if you're a textualist it seems that you're kinda stuck with that reading.

Long-time readers of my blog know that I am indeed a textualist (or, as I label myself, a "constitutional literalist"), which I define roughly as "the intellectually honest cousin of strict constructionism." Examples here and here. Unless absolutely necessary, yes the Constitution should be assumed to "mean what it says and say what it means." But just as the Constitution is not required to be a suicide pact, neither is it required to be nonsensical. I guess even among law professors the old saying is true: Common sense is not so common.

Stuart Buck has a good smackdown of Kerr's smarminess:

This argument is the equivalent of the following: "The Fifth Amendment prohibits the government from putting someone in jeopardy of 'life or limb' twice 'for the same offense.' Granted, this prohibits the government from prosecuting someone twice for the same offense, but it doesn't prohibit the government from prosecuting people for no reason at all. Thus, if you're a textualist, you have to admit that the 5th Amendment allows the government to prosecute innocent people willy-nilly."

I love it. A related saying is that just because Article I only refers to "Armies" and "a Navy" doesn't mean the Air Force is unconstitutional. There's honest interpretational debate, and then there's just being snide. Why should I waste time on the latter? Other (not utterly silly) responses to Kerr at Crime & Federalism, The Right Coast and Freespace. Right Coast sums it up best:

A private use taking was simply the kind of thing that the government was not allowed to do.

In other words, utterly silly. Had anyone suggested to the Framers that it might be constitutional to seize Monticello from Thomas Jefferson to give it to George Washington just because Washington might pay more taxes on it, they would have used far harsher language than "utterly silly."

It's posts like Kerr's, among other reasons, that made me give up on VC long ago. To an unfortunately large extent it's just a collection of bored semi-scholars and intellectual narcissists preening themselves in front of the blogospheric mirror. Reality, meanwhile, keeps chugging along.

Again, I'll update on Kelo and Lingle as appropriate.

UPDATE: Legal Affairs has an excellent exchange between two law professors on either side of the debate. The always-good-for-laypeople FindLaw Writ has a good piece suggesting a compromise rule.

Related Posts:
Will the Supreme Court Extend the Poletown Reversal?
From the Archives: The Other Supreme Court Property Case

"Don't Write, Don't Send"

Sick:

An American soldier overseas is fuming over letters he received from Brooklyn middle-school children accusing GIs of destroying mosques and killing civilians in Iraq.

Pfc. Rob Jacobs of New Jersey said he was initially ecstatic to get a package of letters from sixth-graders at JHS 51 in Park Slope last month at his base 10 miles from the North Korea border.

That changed when he opened the envelope and found missives strewn with politically charged rhetoric, vicious accusations and demoralizing predictions that only a handful of soldiers would leave the Iraq war alive.

"It's hard enough for soldiers to deal with being away from their families, they don't need to be getting letters like this," Jacobs, 20, said in a phone interview from his base at Camp Casey. "If they don't have anything nice to say, they might as well not say anything at all."

One Muslim boy wrote: "Even thoe [sic] you are risking your life for our country, have you seen how many civilians you or some other soldier killed?" His letter, which was stamped with a smiley face, went on: "I know your [sic] trying to save our country and kill the terrorists but you are also destroying holy places like Mosques."
...
The letters were written as a social-studies assignment.

Defender of America or Mosque-Destroyer?

War is ugly, and one can argue that sixth graders should be exposed to that fact and, if they can absorb it, the policy debate over the occupation and reconstruction of Iraq.

But policy is not set by PFC's in Korea (where, incidentally, there are no mosques to destroy). Those guys and gals are plain old American heroes sitting on their butts on the other side of the world waiting for a maniac to prove himself as such.

Putting aside the whole "indoctrination" issue (which in the grand scheme of things should most definitely not just be "put aside"), why target poor PFC Jacobs? Brainwash your students by having them send nasty vitriol to Donald Rumsfeld -- some might argue that he actually deserves it.

But leave PFC Jacobs alone -- he deserves better. (And incidentally, as part of the all-volunteer military, PFC Jacobs is not only protecting the future of South Korea and America, but also a future without a draft. Go figure.)

Shame on the snivelling little brats (by which I of course mean the teacher and principal, not the students).

UPDATE #1: The NYC Board of Education is formally apologizing for the incident. On a tangent, however, they are digging in their heels over this travesty (mentioned in passing by me in this previous post). Meanwhile, more thoughts at Slant Point and The Moderate Voice.

UPDATE #2: The teacher has apologized as well. New York City's philosopher-king, meanwhile, demonstrates the depth of his wisdom:

"We have freedom of speech and you certainly cannot go around censoring what people want to write," Bloomberg said.

Translation: Public school teachers have a First Amendment right to indoctrinate their students by "not censoring them" into harassing a grunt soldier in Korea over U.S. military policy in Iraq. What a jackhole.

Linkfest -- Special "Crazy Courtrooms" Edition

Some juicy jurisprudence gems:

ITEM: Can a city refuse to do business with companies that sue it?

Mayor Don Williamson [of Flint, Michigan] is taking a novel tack in fighting lawsuits - he's withholding city business from anyone who has sued Flint within the past five years.

Williamson said the Jan. 21 policy is in the taxpayers' best interests. In recent years, the city faced a multimillion-dollar deficit that prompted the state to declare a financial emergency. "Who in the world would want to do business if you're sued by 'em?" Williamson said.

But Greg Gibbs, chairman of the Greater Flint branch of the American Civil Liberties Union, said he would go to federal court to have the policy declared unconstitutional. "That's just a reckless, retaliatory action (against) people who exercise their rights to go to court," Gibbs said. "It's reactionary. It's extreme."

Employees who violate the policy face discipline, including a 30-day suspension or firing.

MY TAKE: Understandable at first glance, but more competition means lower prices, which is good for taxpayers. Also, I don't see the constitutional issue -- a city can surely set "reasonable" restrictions on who it does business with -- or is this not "reasonable"? UPDATE: Mayor Williamson has withdrawn the policy in the face of an ACLU lawsuit.

ITEM: What constitutes "hard time" depends of course on the person doing it --

More than a year after he was convicted of violating a federal endangered species law, Smithsonian Institution Secretary Lawrence Small is still negotiating with the Justice Department over what kind of "community service" he must perform as part of his sentence.

The Smithsonian's chief executive wants to use the 100-hour punishment to lobby Congress to change the "outmoded" law he violated, while prosecutors argue that Small's proposal doesn't match the severity of his crime.
...
Small provided a list of books he would read and lawmakers, environmentalists and private sector officials he would meet with to discuss endangered species issues. The goal, Small said, would be to use his stature to start "the process of modernizing" the Endangered Species Act, which he said is "an outmoded law that doesn't work very well."
...
Last December, Heredia pleaded guilty in federal court to selling [exotic bird feathers]. With rare exceptions for educational purposes, it is illegal to possess or buy protected animals, or their parts.

MY TAKE: As far as I'm concerned, "community service" should mean picking up trash along the highway in a gauche orange jumpsuit with leg irons. The concept can't just being about doing the most "productive" good deeds; it should always include some element of "gee, this sucks." [SIDEBAR: Bird feathers?]

ITEM: Can a judge order a parent to learn English?

A judge hearing child abuse and neglect cases in Tennessee has given an unusual instruction to some immigrant mothers who have come before him: Learn English, or else.

Most recently, it was an 18-year-old woman from Oaxaca, Mexico, who had been reported to the Department of Children's Services for failing to immunize her toddler and show up for appointments.

At a hearing last month to monitor the mother's custody of the child, Wilson County Judge Barry Tatum instructed the woman to learn English and to use birth control, the Lebanon Democrat newspaper reported. Last October, Tatum gave a similar order to a Mexican woman who had been cited for neglect of her 11-year-old daughter, said a lawyer who is representing the woman in her appeal. Setting a court date six months away, the judge told the woman she should be able to speak English at a fourth-grade level by that meeting. If she failed, he warned, he would begin the process of termination of parental rights.
...
Tatum, a first-term judge, is becoming known for his unorthodox rulings. Last year, for instance, he sentenced a father to attend high school with his son to address repeated truancy. Bright said the jurist -- a well-liked attorney before he was elected judge -- has been known to pay personal visits to prisoners in jail and to join troubled teens in picking up trash as part of their community service.

MY TAKE: I have blogged previously about my support of making English the official language of the United States. On the other hand, the right to raise one's children as one sees fit is almost totally sacrosanct. On the other other hand, that right does not extend to child abuse or child neglect, and, for whatever reason, some of these "Mextico" families are simply not assimilating, even with respect to the basic standards of living, and are not making any attempt to assimilate their kids into American culture or the English language. That crosses the line in my opinion, and if a judge has to cross a line himself to fix the situation, then perhaps more drastic court action is necessary. Overall, a regrettable fact pattern. (Hat tip to How Appealing.)

ITEM: Some interesting tidbits from the never-ending "McLibel" trial in Europe --

Two British vegetarians convicted of defaming McDonald's Corp. did not receive a fair trial, the European Court of Human Rights ruled on Tuesday.

The court, based in Strasbourg, France, said David Morris and Helen Steel should have received legal aid from the British government and awarded them about $26,000 and $20,000 respectively.

[The McLibel trial] ended with the two activists, who were unemployed or in low-wage jobs, receiving fines of $71,000 and $64,000 for libeling the fast-food restaurant. An appeals court upheld much of the original judgment in 1999 but reduced the damages.

The activists then took their case to the European court, arguing that their human rights had been violated by England's legal system. They argued the trial violated due process because English courts at the time did not provide lawyers for defendants in libel cases.

They also claimed the case infringed on their freedom of expression because English law put the burden on them to justify the allegations in the leaflets, which they did not write.

MY TAKE: I'm almost starting to regret not having taken Comparative Law in law school. Almost. It probably helps to be well aware of just how superior the American system is.

Seriously, though, not to fisk "international law," but it seems that the U.K. system in this case pretty much parallels the American system (no surprise there -- it is, after all, generally referred to as "Anglo-American jurisprudence"). One big parallel that emerges from the "McLibel" appeal is that there is no constitutional right to a government-provided lawyer in a civil case, in either federal or state court. At the state level, there generally isn't even a right to a jury trial in a civil case (the Seventh Amendment is a rare example of a right at the federal level that has not been "incorporated" by the Fourteenth Amendment and therefore does not apply at the state level).

The idea that civil defendants are entitled to free lawyers is a bizarre notion -- if you're too poor to afford a lawyer, then you're likely too poor to warrant being sued in the first place (and, if you're poor, knowing that you'll have to hire a lawyer might actually deter you from committing the tort in the first place -- let's keep in mind that these two schmucks did in fact defame McDonalds).

Similarly, the idea that defamation somehow "reverses" the burden of proof (i.e., the defendant must "prove his innocence") is a common misconception in America, and apparently in Europe too. Of course that's incorrect. Falsehood is not an element of the tort of defamation -- the plaintiff need not prove a statement is false; he need only show it was defamatory. Truth, meanwhile, is an affirmative defense to defamation, and every defense of every tort must be proved by the defendant, whether the defense is privilege, consent, defense of others, or -- for defamation -- truth. There is nothing intrinsically "backwards" about the posture of a defamation lawsuit. The European Court of Human Rights flat-out dropped the ball on this one.