My good friend The Freak, who is a licensed attorney (because he felt like becoming one even though his job isn't actually in the field of law), responded to some questions by guest-blogger (or guest-questioner) Chris Jenkins. The response arrived as a comment but it's worthy of its own post.

Hi Chris,

Thanks for taking the time to read and respond.

I am not a libertarian, at least not nearly as much of a libertarian as Ross is. Consequently I cannot pretend to speak for libertarians and their view of Bush v. Gore. On the other hand, I am an attorney and a legal historian (although my academic focus is medieval common law). I also have an unswerving belief in the need for clarity, predictability, and consistency in the rule of law. That having been said, let me offer you my opinion.

I concur in part and dissent in part.

I concur with the court's (7-2) finding that Florida's proposed recount method violates equal protection. There is no question but that states are free, in accord with constitutional provisions, to determine the manner in which their electors for the presidency are chosen; in fact, I don't personally like the notion of popular vote where the federal presidency is concerned. Nevertheless, once they make that decision it is pretty clear that they must select a voting process which complies with federal constitutional notions of equal protection (again, we can debate whether equal protection is a good idea or not, but it does exist).

Federal law (constitutional and statutory) as well as the jurisprudence is very clear that equal protection implies consistent treatment of voting. The courts consistently rejected any voting scheme that treated votes differently and at different times within an election. This occurred under both "liberal" as well as "conservative" courts, as pointed out in the majority opinion (citing Gray v. Sanders and progeny).

The evidence, which was not contested, revealed widespread subjective treatment of votes in Florida. This quote from the decision summarizes well the mess that the recounts had become:

testimony at trial also revealed that at least one county changed its evaluative standards during the counting process. Palm Beach County, for example, began the process with a 1990 guideline which precluded counting completely attached chads, switched to a rule that considered a vote to be legal if any light could be seen through a chad, changed back to the 1990 rule, and then abandoned any pretense of a per se rule, only to have a court order that the county consider dimpled chads legal. This is not a process with sufficient guarantees of equal treatment.

I agree. Voting standards have to be objective and the very notion of a subjective "intent of the voter" standard is offensive to the rule of law and the dignity of citizenship. As a result, I concur withe the court's finding on this issue.

On the other hand, I disagree with the court's conclusion (5-4) that time had expired and the results had to be certified immediately. There was plenty of time to certify the results to meet federal requirements and it should have been left up to Florida and the Florida supreme court to determine whether the time had expired or not. I would have remanded the case to the Florida supreme court for further adjudication (possibly development of new recount rules) in accord with the equal protection findings above.

As far as the eminent domain cases you cite, I am familiar with neither.

I will give you my perspective: eminent domain is a vestigial act of violence against property that we inherited from the medieval feudal paradigm, and it has no place in modern society. It is an offense against natural law and I wish the framers had done away with it altogether. That having been said, it is tolerated in this country with the restriction that it must be for public use and compensation must be provided.

So what is public use?

It is interesting to note, and Thomas' dissent in Kelo points this out, that eminent domain law has always been distinguished from nuisance law. The former entails a taking and therefore is more tightly regulated, whereas some light recourse might be given from nuisance. The US Constitution is silent on the matter of nuisance, which is left up to the states to regulate in accord with established jurisprudence (which does not include the possibility of taking). Therefore, what you refer to as "blighted areas" owned by "slumlords" might be rightly classified (and adjudicated) under nuisance theories. This limits the remedy, but such limits are just in that they respect the fundamental right to property and they are inherent in the fifth amendment's narrow wording. Additional color is provided on the matter of eminent domain and public use by Justice Thomas, who's much smarter than I am and whom I feel comfortable quoting:

The most natural reading of the Clause is that it allows the government to take property only if the government owns, or the public has a legal right to use, the property, as opposed to taking it for any public purpose or necessity whatsoever. At the time of the founding, dictionaries primarily defined the noun “use” as “[t]he act of employing any thing to any purpose.” 2 S. Johnson, A Dictionary of the English Language 2194 (4th ed. 1773) (hereinafter Johnson). The term “use,” moreover, “is from the Latin utor, which means ‘to use, make use of, avail one’s self of, employ, apply, enjoy, etc.” J. Lewis, Law of Eminent Domain §165, p. 224, n. 4 (1888) (hereinafter Lewis). When the government takes property and gives it to a private individual, and the public has no right to use the property, it strains language to say that the public is “employing” the property, regardless of the incidental benefits that might accrue to the public from the private use. The term “public use,” then, means that either the government or its citizens as a whole must actually “employ” the taken property. See id., at 223 (reviewing founding-era dictionaries).

And again

Tellingly, the phrase “public use” contrasts with the very different phrase “general Welfare” used elsewhere in the Constitution. See ibid. [omissis] The Framers would have used some such broader term if they had meant the Public Use Clause to have a similarly sweeping scope. Other founding-era documents made the contrast between these two usages still more explicit. [omissis] The Constitution’s text, in short, suggests that the Takings Clause authorizes the taking of property only if the public has a right to employ it, not if the public realizes any conceivable benefit from the taking.

I will leave you with a few thoughts that, I hope, will suggest more dialog and, perhaps, even change your mind (for that, in the end, is the purpose of political dialog).

The Union was not established to become an all encompassing government. It was established, on the one hand, so that certain functions that are more easily regulated on a large scale could benefit from the larger size and, on the other hand, so that certain fundamental rights and obligations could be protected by an independent framework from the scourge of factionalism (see e.g. Federalist n. 10). The federalist (remember that this term, historically, refers to those who would give the federal government more, not less, power) founding fathers argued that the risk to the states' independence would be controlled. The power of the union was very narrowly defined. Madison writes:

The powers delegated by the proposed constitution to the Federal Government are few and defined. Those which are to remain in the State Governments are numerous and indefinite. The former will be exercised principally on external objects, as war, peace, negociation [sic] and foreign commerce; with which last the power of taxation will for the most part be connected. The powers reserved to the several States will extend to all the objects, which, in the ordinary course of affairs, concern the lives, liberties and properties of the people; and the internal order, improvement, and prosperity of the State. (Federalist n. 45).

My, how far from the founders' vision we have come. How did this happen?

I believe there are three fundamental shifts that occurred in our nation's history that led to the current mess; one of them may be licit, the other two are illicit and, in my opinion, these last two must be reversed.

The first is the passage of the XIV amendment, in particular section 1 of the same amendment.

Leaving aside the legitimacy of the XIV amendment (it was ratified by several states following military occupation by other states) section 1 of the amendment has several components. The citizenship clause is reasonable and provides a uniform standard of citizenship that is a federal issue and fully within the normal remit of the union to regulate. The clause subjecting life, liberty, and property to the due process of law is fine. The problem comes with the sentence "No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States." This sentence led to the inclusion doctrine which means that any right the citizens may claim against the federal government may also be claimed against the individual states. We can go at length discussing why this was bad, but I will leave it for now, since this is most probably a fair, but unintended and bad, consequence of the amendment.

The next really bad moment in the history of our country was an offense perpetrated by that most villainous president, FDR. When his worthless "New Deal" legislation kept failing constitutional muster (as it should have), the congress and the president decided that they'd do away with proper judicial review and drafted the court-packing bill. A switch in time may have, indeed, saved nine. But the cost was a series of judicial decisions which undermined the federal balance of power. I'm troubled FDR is on my dimes.

The final nail in the coffin was the commerce clause interpretation (or, I should say, non interpretation) brought on to pass civil rights legislation. In the Heart of Atlanta Motel and Ollie's Barbeque cases the court decided not to decide. In other words, they said that if congress thought something had an impact on interstate commerce sufficient to regulate at the federal level, then they would not review that determination (this led to the phrase "dormant commerce clause"). In other words, congress was given carte blanche to enact any legislation it wanted under a claim of power flowing from their power to regulate interstate commerce -- the court would not (and has not) review whether the claim is legitimate or not.

This is absurd.

A fundamental tenet of any political system is that no judge (or group of judges) can stand in judgment in his own case(s). This is the threat to political balance that Madison warned about in Federalist n. 10. By giving congress a ruling that established the dormant commerce clause, the Supreme Court made congress a judge of its own cases; congress gets to decide the limit of its power. This, unsurprisingly, led to an unprecedented expansion of federal power in areas which are well outside the limits imposed by art. 3 of the constitution. When an independent judiciary abdicates its supervisory role, abuse is inevitable.

Is this the type of country, the type of rule of law, you support? Or is it time to replace the tired ideology of Bader Ginsburg and her ilk with law abiding judges and make congress fight for expansion of its power the old fashioned way -- through constitutional amendment at the tail end of vigorous political debate?

Freak