Re: [at-l] Saddleback

["David F. Addleton" <dfa@wimlaw.com>]

> > In the Saddleback case the landowner is willing to sell but at a price
way
> > above the appraisal. This seems to fit the prostitute model above very
well.
> 
> Does it mean, then, that WF et al are defending the virtue of a 
> prostitute? If so, purism, in this case, creates an unintended pimp who 
> bids up the price of social/economic intercourse.

The only limits to the power of eminent domain are public purpose and fair
price, both of which are broad in their legal implications.  These two
"broads" aren't prostitutes although US citizens are more willing than
others to prostitute their sacred constitution to suit their own political
and economic ends. On the other hand, many folks elsewhere in the world do
not enjoy even those two protections. Public purpose can mean just about
anything (eg., eminent domain exercised against a sports franchise to keep
it in the city) and fair price depends on "what a willing buyer would pay
to a willing seller at a particular time and place."  Property appraises
all over the board and one can ask for and get appraisals at either the
"high end" or the "low end" of "reasonable" -- whatever that means. Without
eminent domain we'd not enjoy the marvelous interstate road system. For
better or worse, we use the courts to pour concrete meaning into these
abstractions when the interested parties cannot themselves reach settlement
on the meaning. In balancing competing economic and social interests, no
one can predict what a court or compromising parties will accomplish. Often
disputes, whether settled or decided by a judge, beget unintended
consequences, just as do laws and regs the legislature and executive
agencies create. But we call the process of competing over opinions and
values and interests before a judge "the rule of law" or in elections,
"democracy" and the competition we call a "free market" or "freedom of
expression" or "of press."

Since WF "owns" his domain in cyberspace he may do with it what he likes,
up to and including, silencing anyone with whom he disagrees by denying
them access to his information or transmitting their speech, just as you
can keep disagreeable people off your property. The constitution applies to
the government, not to private persons (with one important exception
dealing with slavery); it protects us from the government, but not from our
fellow citizens. 

The caricature of an opponent, adversary, or whatever, has a time honored
place in the competitive public marketplace of ideas, but does not really
address the ideas in competition, and for that reason when recognized
appears under the rubric of the ad hominum fallacies. While I'm no fan of
WF,  and while the analogy may have considerable value for enjoyable high
or low comedy, I'm certain someone can come up with a more convincing
argument regarding eminent domain in the context of Saddleback and I'm not
certain the AT-L is the place for a debate on whether or not we need more
limits to the power of eminent domain.

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