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Contributors
Ken
Masugi- Columnist
 Ken Masugi is the Director of the Claremont Institute's Center
for Local Government.
Its purpose is to apply the principles of the American Founding
to the theory and practice of local government, the cradle
of American self-government. Dr. Masugi has extensive experience
in government and academia. Following his initial appointment
at the Claremont Institute (1982-86), he was a special assistant
to then-Chairman Clarence Thomas of the U.S. Equal Employment
Opportunity Commission. After his years in Washington, he
held visiting university appointments including Olin Distinguished
Visiting Professor at the U.S. Air Force Academy. Dr. Masugi
is co-author with Brian Janiskee of both The
California Republic: Institutions, Statesmanship, and Policies (Rowman & Littlefield,
2004) and Democracy
in California: Politics and Government in the Golden State (Rowman & Littlefield,
2002). He is co-editor of six books on political thought,
including The
Supreme Court and American Constitutionalism with
Branford P. Wilson, (Ashbrook Series, 1997); The
Ambiguous Legacy of the Enlightenment with William Rusher,
(University Press, 1995); The
American Founding with J. Jackson Barlow
and Leonard W. Levy, (Greenwood Press, 1988). He is the editor
of Interpreting
Tocqueville's Democracy in America, (Rowman & Littlefield,
1991). [go
to Masugi index]
 Claremont
Institute at the Supreme Court
Preserving the Constitution...
[Ken
Masugi & John Eastman] 7/5/05
The last
days of the Supreme Court term reflected the particular strengths
of the Claremont Institute, our dedication to restoring and
applying the principles of the American political tradition
to the contemporary world. Our briefs and arguments made their
mark on the opinions, especially those of Justice Clarence
Thomas.
First, note
the amicus (friend of the Court) briefs our Center for Constitutional
Jurisprudence filed in one of the two Ten Commandments cases
and the homeowners' rights case, Kelo v. City of New London.
(These briefs can be found on our
CCJ website). We will then explore their implications for
a free and virtuous California, which our work at the Center
for Local Government emphasizes.
The Kelo case
has provoked congressional outrage, with the House passing
legislation cutting off federal aid to municipalities who act
under their newly acquired powers. The 5-4 Kelo decision
puts (in Kentucky and Texas)
private property at the mercy of local officials, who may take
it for "public use," which means for any purpose they deem
fit.
Eric Claeys
and John Eastman produced a brief from which Clarence Thomas
in dissent borrowed. The rare reference to natural rights in
a Supreme Court opinion by Justice Thomas, the only justice
who respects natural-rights arguments, indicates how close
to fundamental principles this case cut. "The Public Use Clause,
in short, embodied the Framers' understanding that property
is a natural, fundamental right, prohibiting the government
from 'tak[ing] property from A. and giv[ing] it to B.'" He
cites Claeys' probing essay, "Public-Use
Limitations and Natural Property Rights" (2004, Michigan
State Law Review 877, 897). That essay was supported by a grant
from the Center for Local Government. Claeys is now completing
a monograph on redevelopment, eminent domain, and property
rights for the Claremont Institute.
The implications
of Kelo for California are explored by attorney C. Robert
Ferguson in "Kelo in California: The Property-Rights
Counterrevolution," available here.
Ferguson concludes
Now,
after Kelo, without violating the rights of an American
citizen, a city or county can use the power of eminent domain
simply by creating a "Development Plan" (to ostensibly upgrade
an area or neighborhood), and an agency or a development corporation
to implement the Development Plan. The new agency or entity
will not be funded by property tax revenue, but it can be vested
with the power of eminent domain….
[T]he United States Supreme Court has decided that cities
can use their power simply as a convenient revenue source. Kelo will
unleash local governments to abuse their powers to unimaginable heights.
In its two
Ten Commandments cases, did the Supreme Court simply split
the religious liberty baby? The depiction of the 10 Commandments
in the Kentucky courthouse was held to be unconstitutional,
because it was only alongside other "religious" documents,
such as the Declaration of Independence (human beings are endowed
by their "Creator" with certain unalienable rights), the Northwest
Ordinance ("religion, morality, and knowledge being necessary
to good government, schools and the means of education shall
forever be encouraged"), and the Magna Carta, and therefore
reflected Kentucky's religious purpose. But down in Texas,
where a much bigger monument was depicted on the grounds of
the state capital, near other monuments to Alamo war heroes,
firefighters, and a Boy Scouts-donated statue of liberty, the
Court (or, rather, Justice Breyer, who was the swing vote)
found no religious purpose.
Justice Souter
purported to find unconstitutional intentions in the Kentucky
case, though no one's rights were affected by the monuments—no
oaths were required, no conditions demanded of visitors. They
simply and faithfully reflect the history of this country.
What are
the implications for Californians? The two First Amendment
decisions together bolster our argument that the old Los Angeles
County Seal was perfectly constitutional. The cross is but
one among many symbols that accurately reflect the historical
heritage of the region. The L.A. County Board should not have
caved to ACLU pressure.
These Supreme
Court decisions make clearer than ever that we must learn to
become a self-governing people once again. We need to challenge
through lawful action the courts when they permit violations
of rights. More than ever, we need to elect freedom-loving
city council members and other local government officials who
take constitutional principles seriously. On this Fourth of
July weekend, it is proper to recall that local liberty is
not only a right, it is an obligation. tOR
Ken
Masugi is director of the Claremont Institute's Center
for Local Government, and is a contributing editor of the Claremont
Review of Books. He is the co-author of Democracy
in California: Politics and Government in the Golden State.
John
C. Eastman is a professor of constitutional law at
Chapman University School of Law and the director of the
Claremont Institute's Center
for Constitutional Jurisprudence.
copyright
2005 Claremont
Institute.
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