Archive for Monday, April 4, 2011

Government arrogance triggers dispute

April 4, 2011

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— A dialectic of judicial deference and political arrogance is on display in St. Louis. When excessively deferential courts permit governmental arrogance, additional arrogance results as government explores the limits of judicial deference. As Jim Roos knows.

He formed a nonprofit housing and community development corporation that provides residences for low-income people. Several times its properties have been seized by the city government, using “blight” as an excuse for transferring property to developers who can pay more taxes to the seizing government.

The U.S. Supreme Court’s 2005 Kelo decision legitimized this. It permits governments to cite “blight” — a notoriously elastic concept, sometimes denoting nothing more than chipped paint or cracked sidewalks — to justify seizing property for the “public use” of enriching those governments.

Roos responded by painting on the side of one of his buildings a large mural — a slash through a red circle containing the words “End Eminent Domain Abuse.” The government that had provoked him declared his sign “illegal” and demanded that he seek a permit for it. He did. Then the government denied the permit.

The St. Louis sign code puts the burden on the citizen to justify his or her speech rather than on the government to justify limiting speech. And the code exempts certain kinds of signs from requiring permits. These include works of art, flags of nations, states or cities, symbols or crests of religious, fraternal or professional organizations. And, of course, the government exempted political signs. So the exempted categories are defined by the signs’ content.

The Institute for Justice, a libertarian public interest law firm defending Roos, notes that signs may be the oldest form of mass communication — Gutenberg made advertising posters — and they remain an inexpensive means of communicating with fellow citizens. St. Louis says it regulates signs for “aesthetic” reasons and to promote traffic safety, but admits it has no guidelines for the bureaucrats exercising aesthetic discretion and no empirical evidence connecting signs with traffic risks. And why would Roos’ mural be less aesthetic and more distracting to drivers than, say, a sign — exempted from any permit requirement — urging the election of the kind of city officials who enjoy censoring Roos?

St. Louis is not the problem; government is. Many people go into it because they enjoy bossing people around. Surely this is why a court had to overturn a decision by the government of Glendale, Ohio, when it threatened a man with fines and jail because he put a “for sale” sign in his car parked in front of his house. The city said people might be distracted by the sign and walk into traffic.

St. Louis Alderman Phyllis Young is distressed that Roos’ speech might escape government control: “If this sign is allowed to remain, then anyone with property along any thoroughfare can paint signs indicating the opinion or current matter relevant to the owner to influence passersby with no control by any City agency. The precedent should not be allowed.”

The alderman’s horror of uncontrolled speech is an example of what Elizabeth Price Foley, law professor at Florida International University, calls “an ineluctable byproduct of disregarding the morality of American law.” In her book “Liberty for All” (2006, Yale), she says the growing exercise of legislative power “in the name of majoritarian

whims” has eroded America’s “twin foundational presumptions” — limited government and residual individual sovereignty.

The original constitutional structure has, she says, been inverted: Citizens are required to convince the courts that laws restricting liberty are “irrational”; government should be required to articulate justifications for limiting liberty. The Founders’ goal — in John Adams’ formulation, a nation of “laws, and not of men” — has, Foley believes, “been taken much too far.”

She thinks we have become a nation of laws, and not of liberty. We are, she notes, a nation with local laws prohibiting the wearing of hats in theaters or courtrooms, catching fish with one’s bare hands, carrying a slingshot, teaching others about polygamy, having a garage sale for more than two days a year, serving alcohol within a mile of a religious camp meeting. ...

The 8th U.S. Circuit Court of Appeals is considering whether the city of St. Louis can regulate what Roos can say concerning what the government has done to him. This case, which arises from unwise judicial deference to city governments wielding the power of eminent domain, demonstrates the dialectic of courts inciting governmental arrogance by deferring to it. So judicial deference often is dereliction of judicial duty.

— George Will is a columnist for Washington Post Writers Group. His email is georgewill@washpost.com

Comments

cato_the_elder 4 years, 5 months ago

The Kelo case, a 5-4 decision, remains one of the worst Supreme Court decisons in recent memory. Long-time residents of the Fort Trumbull section of New London, Connecticut, lost their homes to an "eco devo" eminent domain scheme concocted by Pfizer and local government shills.

Four years later, Pfizer announced that it was leaving New London altogether. The residents affected had lost homes that had been in families for generations, and the project that caused it had never even gotten off the ground. The land had been cleared, and the corporate "vision" of a hotel, stores, and condos had never materialized.

The Supreme Court's liberal wing, joined by Justice Anthony Kennedy, constituted the majority in the Kelo case. Justice Sandra Day O'Connor, joined by Chief Justice William Rehnquist and Justices Scalia and Thomas, dissented.

The day that this was announced, I sold every share of Pfizer that I owned.

Jimo 4 years, 5 months ago

"Citizens are required to convince the courts that laws restricting liberty are “irrational”; government should be required to articulate justifications for limiting liberty."

Last week, the GOP House struck another blow for "liberty" passing a bill to bar the Environmental Protection Agency from requiring farmers or companies to comply with the Clean Water Act when using pesticides on or near water sources. H.R. 872

You see, it's not a problem if your baby ends up with birth defects or you develop cancer or neurological disorders from the acetochlor, atrazine, metolachlor, cyanazine, alachlor, metribuzin, bentazon, and trifluralin that farmers dump onto their land--and thereby into our rivers--by the ton every year. Those are known and documented consequences of exposure to those chemicals. The U.S. Geological Survey found these chemicals virtually in every river and stream in America: http://pubs.usgs.gov/circ/2005/1291/

You see, your "liberty" to get sick and die is more important than some government bureaucrat (no doubt motivated by a crazed belief in communism) trying to boss you around.

notajayhawk 4 years, 5 months ago

"You see, it's not a problem if your baby ends up with birth defects or you develop cancer or neurological disorders from the acetochlor, atrazine, metolachlor, cyanazine, alachlor, metribuzin, bentazon, and trifluralin that farmers dump onto their land--and thereby into our rivers--by the ton every year."

Right! Much better to let them starve to death because their parents couldn't afford that over-regulated food, and/or because the crops were wiped out by insects.

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