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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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