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In the Lone Star State

I leave Saturday to speak at a couple conferences in Texas, so blogging will be light or nonexistent until I return on Wednesday.

The facts about eminent domain reform

The Victorville Daily Press is carrying my article about California's eminent domain ballot propositions. Excerpt:

Prop. 98 is being attacked by government bureaucrats and their supporters who want to keep abusing eminent domain as they have for decades. These bureaucrats wrote Prop. 99 with the specific intent of deceiving voters in to enacting a meaningless promise that will do nothing to protect property rights. It’s sickening, and voters should not fall for it.

If you think Kelo v. New London went too far, and if you think eminent domain abuse must be eliminated you should vote yes on Proposition 98 and no on Prop. 99.

(Read the rest...)

Doug Kmeic denied communion

Eyebrow-raising news on the Catholic front: law professor and Federalist Society mainstay Doug Kmeic claims he was denied communion by a chaplain who disapproved of Kmeic's (odd) endorsement of Barack Obama. That does seem like a pretty extreme response. Maybe a politician who votes in a way the Church disapproves of deserves such treatment, but a law professor who endorses that politician's candidacy? Isn't that a bit much? What about that law professor's research assistants?

Seems like a doctrinal tempest in the silliest of teapots, but I know (distantly) Doug Kmeic, and there's hardly a nicer, more levelheaded guy around, whatever one thinks of his opinions. This act seems like a disrespectful and extreme reaction to a minor political disagreement. More at SA.

A novel about Locke (the town)

There's a new book out about Locke, California, the fascinating Chinatown I blogged about here. The book is Locke 1928 by Shawna Yang Ryan.

From the Commonplace Book

"A barbarian [to the Greeks] was a man content to believe without reason and to live without liberty."--Will Durant, The Life of Greece 70 (1939)

Are civil unions “separate but equal”?

In my posts on the Marriage Cases, (1, 2) I’ve tended to agree with Justice Corrigan in dissent that so long as California allowed gay couples to form civil unions with the same substantive protections as straight couples, it does not violate the Constitution for the state to denominate the former “civil unions” and the latter “marriages.” That, to emphasize, was what was decided in yesterday’s decision—not whether gay couples can actually form such unions, which was already legal in California.

But what about this argument: for the state to permit gay and straight couples to create substantively identical partnerships, but with a different name, is “separate but equal,” and therefore a violation of the spirit, if not the words, of Brown v. Board of Education?

Friday art

Prometheus by Maxfield Parrish

Justice Baxter’s dissent in the Marriage Cases

Justice Baxter’s dissenting opinion in today’s Marriage Cases is convincing on most of the major points in the case, although there are some parts that I think unnecessarily go too far. The big issues here are 1) nomenclature—can the state denominate same-sex relationships by a different name than “marriage”; 2) strict scrutiny—are homosexuals entitled to the same level of equal protection scrutiny as racial minorities? On both of these, Justice Baxter’s opinion is logically stronger than the majority opinion.

The California Supreme Court did not “legalize same-sex marriage”

You’re going to hear in the news that the California Supreme Court today “legalized same-sex marriage” or “struck down the state’s ban on same-sex marriage.” As is always the case when the media report about law cases, that is not the whole story, or even a particularly helpful way of characterizing the story.

What the California Supreme Court did was to declare that the state may not confine use of the word “marriage” to opposite-sex couples while denominating same-sex couples as “civil unions” or “domestic partnerships.” California already extended all of the benefits of marriage to same-sex couples under its civil union laws. The only issue here was whether the state could refuse to call those unions “marriages.” The case was about semantics (which is not to say it was unimportant; semantics are 9/10ths of the law). The Court found that refusing to extend the word “marriage” to same-sex couples was demeaning and therefore discriminatory and therefore a violation of the state Constitution. But it did not declare that the state must extend any substantive guarantees that it was not already extending. I explain in more detail here.

A look at The Marriage Cases

The opinions of the justices of the California Supreme Court in the Marriage Cases take up some 170 pages, but the bottom line is that by a 4-3 decision, the Court finds it unconstitutional (under the state Constitution) to establish a civil-union mechanism for homosexuals which provides the same substantive protections as the marriage law that prevails for heterosexuals, and yet to call it by a different name than marriage.

More Obama theocracy appeal

I've asked before how secular liberals can support Barack Obama, given his blatant pitches to religious groups and his long-standing connections to very extreme religious leaders. How about this? Christian Broadcasting News reporter David Brody comments, "Remember (Gov.) Mike Huckabee’s supposed subliminal cross in his Christmas campaign ad? Well, Obama campaign ditches the subliminal and goes for the in your face cross.” (c/o)

Still waiting for an answer from my secular liberal friends....

My Wikipedia contribution

I've drafted a Wikipedia page about Charles V. Stuart, the delegate to the California Constitutional Convention of 1878, about whom I wrote here. The article still needs a little work but at least it gives Stuart some deserved recognition.

My appearance on Pacesetters

I'll be appearing (by phone, unfortunately) in a Prop. 98 debate on KTLA channel 5's show Pacesetters, airing Sunday, June 1, at 6 a.m.

Tom McClintock for Congress

This will be of interest only to my thousands of readers in El Dorado County, California, but if you’re like me, you’ve been blown away by the nastiness of the campaign against Tom McClintock. His opponent, Doug Ose, has now taken to accusing McClintock of voting against benefits for veterans—the commercial even has an almost self-parodying line, “how does he sleep at night?” It’s laughable in its demagoguery.

The fact is that Tom McClintock is a man of integrity with a passion for freedom and our constitutional traditions. I’ve rarely met a political leader more sincerely devoted to the principles of liberty and respectful, not only of soldiers, but of the political leaders who have fought for our freedom in the past. The man quotes Jefferson and Lincoln off the top of his head, for crying out loud—and actually understands what they mean. How a man as sincerely devoted to the promises of freedom and opportunity could stay sane in the legislature of California is beyond me, but he has done a masterful job of it and has earned the respect of every Republican in California as a result. In fact, he’s earned the respect of many Democrats, too, who may not agree with him but recognize him as a principled and serious believer in the principles of Goldwater and Reagan.

Of course, I’m not a Republican, and I disagree strongly with McClintock on some things. I think he’s completely wrong on gay marriage—he would support legal prohibitions of this fundamental right. I wish he were better regarding drugs—he supports medical marijuana, which is good, but doesn’t go far enough. He describes himself as “pro-life” although it is not clear if he would try to fo farther than eliminating the most extreme forms of a woman’s fundamental right to an abortion.

But McClintock is one of only three or four members of the California legislature that acted to protect property rights against eminent domain abuses. He has long been the only member of the legislature to speak honestly about the state’s budget problems. Long before Schwarzenegger was “surprised” by the size of the state’s debt, McClintock was warning of looming financial problems, the problem of pension obligations, and fraudulent bookkeeping by Democrats in the legislature. And he had the best ideas for fixing those problems. He has consistently opposed tax increases and welfare boondoggles. He is a hardworking, honest, and decent candidate who would make an unusually effective member of Congress.

Is initiative reform of eminent domain desirable?

A commenter at the Volokh Conspiracy writes, “I think this shows again the dangers of the proposition system: the all-or-nothing approach to legislative language. Why not allow a legislature debate and revise/amend the details of a bill this complicated?”

I, too, am deeply suspicious of the initiative system, but the bottom line in the case of eminent domain reform is that legislatures in general, and the California legislature in particular, have shown virtually no interest in protecting people from eminent domain abuse. Despite an overwhelming nationwide outcry about the Kelo decision, and almost unanimous, bipartisan support for some form of protection against the abuse of eminent domain, very few states have enacted realistic protections for property owners. By far, most legislatures have chosen instead to adopt meaningless reforms that do nothing to protect homeowners, but are intended to fool voters into thinking something has been done. Texas, for example, which enacted a law that forbids the taking of property for “private use”—even though that is already illegal even under Kelo—and which then allows takings for transfer to private developers so long as the property is “blighted.” “Blight,” of course, is then legally defined to encompass virtually any property that government officials feel like pointing at.

Why this failure? Prof. Somin and I have written that it is due to ignorance on the part of voters (understandable, given the technical complexity of eminent domain laws) and to the powerful rent seeking effects that are to be expected when government is in the real estate business.

What, then, of the initiatives? In fact, in last year’s elections, we saw powerful new protections for property rights in several states via initiatives. None of these initiatives had the sort of “blight” loopholes and other language that would handicap their effectiveness. These initiatives applied strong new protections for property rights.

It’s frustrating that people should have to resort to the initiative process, a process that has so many shortcomings. The primary shortcoming is the petition requirement, which prohibits an initiative from being placed on the ballot without enormous sums being spent on first collecting signatures. This means that for an initiative to qualify, it must pay back the investors—which deters a great many worthwhile initiatives, encourages frivolous initiatives, and clouds legitimate initiatives with aspersions of wrongdoing that they don’t deserve (as is the case with Proposition 98).

Because apartment owners suffer from the violation of their property rights, they contributed to the signature gathering effort for Prop. 98. And as a result, the opposition can act like demagogues and scream “evil greedy landlords are behind Prop. 98!” It’s childish nonsense, but it’s predictable, given the incentive structure created by the initiative system.

Yet I see no realistic alternative to the initiative system in California. This state’s government is simply broken at a very deep, very fundamental level. Its legislature is unable to legislate. Its governor is unable to govern. (I think the judiciary does a better job, but even it is hopelessly overloaded.) As a result, basic elements of government that no reasonable person could legitimately oppose—like non-partisan redistricting, or a third lane on the 5—cannot get enacted, but everyone’s petty, private, pet project gets fully funded at the taxpayer’s expense. The people of California are resorting to the initiative system in this case as in many other cases because they have to. California is in need of serious structural reform.

Dan Walters has some—as always enlightening—thoughts on the initiative system here.

Ed McMahon drunk

A friend passed along this brilliant clip from Johnny Carson, with Ed McMahon absolutely smashed. I miss Johnny so much, I think I could cry.

The Deep Dishonesty of Prop. 99

Proposition 99’s backers—that is almost entirely government groups who love eminent domain—are running an enormously dishonest commercial arguing that Prop. 99 is the “only” way to get “real” eminent domain reform, and smearing the alternative Proposition 98. I have rarely seen such brazen misinformation.

The fact is that Prop. 99 would not protect anyone in California from eminent domain abuse. It would not apply at all to small businesses, which are the most common victims of eminent domain. It would not protect people living in apartments at all. It would not protect farms, or churches. It would only protect “owner occupied residences.” And in fact, it would not even protect them, because the small print in the initiative eliminates such protections in almost every case of eminent domain abuse—click here for an explanation.

Proposition 98, by contrast, would prohibit the government from taking away small businesses, apartment buildings, farms, churches, and homes, and giving the land to private developers. If you are outraged about Kelo v. New London and the abuse of eminent domain, the only genuine protection is Proposition 98. It was written, not by evil greedy landlords, but by the Howard Jarvis Taxpayers Association, for decades the strongest defender of California’s homeowners.

Prop. 99, on the other hand, was drafted by the League of California Cities, a group made up of city bureaucrats who are hoping to use their initiative to derail any attempt to protect property rights in California. Do not be fooled by their cynical scheme.

What about rent control? One charge routinely leveled at Prop. 98 is that it would hurt the poor by eliminating rent control. But here are the facts:

1) Rent control is already illegal in most California cities. Under laws passed a decade ago, California cities are not allowed to adopt new rent control laws in almost any case.

2) Prop. 98 would not eliminate rent control for any person who is currently living in rent controlled property. It would phase out rent control only when people leave their apartments. It does not allow landlords to evict people for paying low rents. It does not allow landlords to raise rents for people living there. Prop. 98 would not throw people out on the street at all. That is nothing but a lie being spread by Prop. 99’s backers to again fool people into voting against eminent domain protections.

3) Rent control is a bad idea that hurts the poor and actually drives up the cost of housing—and it violates property rights. If you make it illegal to charge what something is worth, businesses are going to provide less of it. Rent control laws create housing shortages by deterring people from putting places up for rent. They also lead to poor maintenance because landlords don’t find it worthwhile to maintain their property since they can’t get what the property is worth.  That is why rent control is already illegal in most of California. Worst of all, rent control violates property rights by forbidding landowners from charging what they want for their land. You can’t say you believe in your property rights, but not in the property rights of “the rich” or “evil landlords.”

4) Even if you think rent control should be retained, Prop. 98 is the only proposition that protects property rights from eminent domain abuse—you would be better off voting for it and then later going back and repealing the rent control sections if you think they are bad.

Prop. 98 is being attacked by government bureaucrats and their supporters who want to fool Californians into voting against eminent domain protections. It’s absolutely sickening, and voters should not fall for it.

If you think Kelo v. New London went too far, and if you think eminent domain abuse must be eliminated you should vote yes on Proposition 98 and no on Prop. 99.

Herschensohn on McCain

My friend Bruce Herschensohn has a discussion on YouTube about why he supports John McCain. It's a bit outdated, and I'm not sure I agree with him, but when Bruce talks, I always listen. (Part 1 / Part 2).

Separated at birth?

Jason Castro and Towlie?

Friday art

The Dog by Goya