JUST SAY "NO" TO LOCAL PROFFERS

(The following was published in The Richmond (Va.) Times-Dispatch on 12/21/16 as "Correspondent of the Day.")

I enjoyed your Monday article about legislative restrictions for local proffers, which are unconstitutional and should be entirely banned.

Proffers imposed by multiple jurisdictions become a "pass-through" cost because buyers cannot "shop around" to avoid them.  Developers must bear the onerous up-front burden of proffers, but ultimately they are passed on to buyers as an "entry fee" for the "privilege" of living in such communities.  No one should have to pay an "entry fee" to live anywhere in this country they wish.  Most existing owners did not suffer any proffers; neither should new owners.  If SOME of the buyers of the newly developed properties happen to be older locals seeking to "downsize" by moving to a smaller house or townhouse, why should those people have to pay such an "entry fee" to stay where they already are?

There is a very real cash squeeze being felt by local jurisdictions as the land tax yields smaller or stagnant revenues due to dropping or stagnant property values in many places.  It is past time for localities to shift to a local income tax instead, but that won't likely be allowed by the Virginia General Assembly anytime in the foreseeable future.  Many large rural tracts of land are owned by relatively few folks with substantial incomes getting subsidies of artificially lowered land taxes (the so-called "land-use tax") that fictionally depreciates the actual market value of their lands.  Meanwhile, local government budgeting is a "zero-sum game" since they cannot print their own money.  Those who do not qualify for those subsidies, like ordinary residential owners and cash-strapped businesses, must make up the revenue differences created by those unwarranted subsidies out of their own pockets.  

DIFFERENCE BETWEEN TRUMP AND GODZILLA? (Joke)

The difference between Donald Trump and Godzilla?

One is a huge, ill-tempered reptile with small forelegs, orange skin, and weird orange scales on his head who goes around stomping on innocent people, bellowing and baring his teeth a lot; the other is just a Japanese movie dinosaur!

TO THE TELLER OF A LAME JOKE (Poem)

© 1968, 2016

I lift my long and leaden limb.

THIS, I say, I'll give to him.

And so, without a moment's warning

(It's the same at night or morning),

If we don’t laugh (until we choke)

Because he told a bad, lame joke,

For all his efforts, he'll only get

A broken breeze for his weak wit!

BAD-NEWS BORK

This ran in the Charlottesville (Va.) Daily Progress Oct. 4, 1987

Bork Bad News For Individual Rights

U.S. Constitution, Amendment IX: 

The enumeration in the Constitution of certain rights shall not be construed to deny or disparage others retained by the people.

Magnetized to my refrigerator is a "Ziggy" cartoon by Tom Wilson in which Ziggy is again on the psychiatrist's couch with a worried countenance. The shrink says to him, "You're cured, Ziggy. ... The American Psychiatric Association no longer considers fear of the government to be paranoid behavior!"  Small comfort, indeed, with appointment of Judge Robert Bork to the U.S. Supreme Court at stake.

Bork is probably not unfit or unqualified to serve on the court, but we shouldn't want him up there, and it is appropriate for those senators who so agree to exercise their constitutionally granted political power to deny consent to his nomination.  Bork, who seems to be a smart and witty fellow, also appears to have a frightening and dangerously skewed view of the balance between the rights of individuals and the powers of government (and its bureaucrats) that predictably and inexorably encroach on our rights more and more each day.  All of this is said notwithstanding his apparent "conversions" during or shortly prior to his appearance on the witness stand.  A distinction is noted here between "rights" and "powers," not mine originally. I refer to the somewhat esoteric yet clarifying legal philosophy of John Wesley Hohfeld.  He said that under our system of laws, it is necessary to distinguish between rights held by persons, against which the state has no authority to act, and limited powers held by the state, which specifically are granted by the Constitution or reasonably inferred.  People have rights, but governments, state or federal do not.  Governments must have the specific power to act; otherwise, the people are supposed to be immune from governmental meddling.

The history of the Constitution and the shared philosophy of our nation's Founders extolling the "Natural Rights of Man," espoused by John Locke and others (including Thomas Jefferson and James Madison), must lead us to the inescapable conclusion that limited powers flow from the people to the government, not that rights flow from the government to the people. Bork seems to reverse these principles by ignoring the concurrent principle of the immunity of individuals from the tyranny of the majority.

It should not be necessary, nor is it seemly, that individuals must go to the politicians or the courts, hat in hand, to beg for their rights.  Jefferson said that the "Natural Rights of Man" are not some dispensation gratuitously given to us by our all-powerful, benevolent government, subject to deprivation upon the whim of the majority.  Unfortunately, it is fairly clear that Bork's view of the balance between powers and rights follows a statist belief in a benign government, a term I view as oxymoronic.

Bork is widely regarded as a "conservative" of towering intellect who supposedly will bring to the Supreme Court a "strict constructionist" doctrine asserting that judges are to interpret, not make, law. His railings against "judicial legislation" are clearly what moved Ronald Reagan to nominate him.  Conversely, much of the criticism of Bork is nothing more than Mickey Mouse carping that, in my view, misses the mark and will serve to enhance his chances of confirmation, as was the case with William Rehnquist's nomination for chief justice.  The only two charges against Rehnquist that had any merit were the allegations of minority voter intimidation and his failure to recuse himself from hearing a case as a justice (in which he cast a decisive vote) in which he had participated as a Justice Department lawyer.  One would not, however, have known much about these serious issues for all of the smoke that was blown out over the irrelevant nitpickings against Mr. Rehnquist by his opponents, much the same people who are not taking potshots at Bork.

Attorney General Edwin Meese III (a.k.a. "Officer Ed") is fond of frequently citing Alexander Hamilton's opposition to the Bill of Rights as authority for the assertion that individual rights were not unanimously recognized by the Founders. As with so many legal issues, the "Sage of Wedtech" has been serving up the baloney again.  In fact, Hamilton's opposition was not out of hostility to the concept of individual liberty but was instead born out of the fear that reactionary statists such as Meese, Reagan and Bork would claim, as they have, that the failure specifically to enumerate a right would allow the inference that the right does not exist.  Thus, following the "Borkian" analysis of individual rights, "if it ain't written, it ain't."  On the witness stand recently, Bork attempted to recant some of his more extreme past positions in what appeared to be a new-found libertarian attitude.  I was shocked, therefore, to hear that he was claiming to renounce past-held "libertarian" views.  If his past utterances are "libertarian," then excuse me while I find a new philosophy or at least a new label.

As the man said: That dog won't hunt. The Ninth Amendment, which admittedly has not been given much attention by the Supreme Court in its decisions, was adopted by the Founders specifically to allay Hamilton's fears over enumeration.  That's in the history books, all you strict constructionists out there in Original-Intent Land.  Bork's amnesia as to the Ninth Amendment, calls into question his much-vaunted intellectualism.  That's not a very high intellectual tower, by my measurement.

If Bork wins confirmation, it will be the bottom of  the Ninth for individual rights and civil liberties.  One who has such contempt as Bork seems to have for "due process" and especially for "equal protection" of the laws; who quibbles over the right of a married couple to be free from state interference in the bedroom; who presumes to tell women that the states may reduce them to second- (or third-) class citizens and may control their bodies if male-dominant legislatures so decree; who finds "intellectual" stimulation in contemplating abandonment of "one person, one vote"; who espouses a bizarre theory that the power of the legislature to meddle with the rights of the individual exceeds the power to meddle with a state-created corporation, and who insists that the Constitution must be interpreted today in light of the mores of 200 years ago, when slavery and indentured servitude were accepted and women were not recognized as citizens —that person may be technically "qualified" to sit on the court, but I would exercise my political prerogative were I a senator to keep him on the D.C. Court of Appeals. None of this is about right of privacy; it's about necessary limitations on governmental power.

And to Ronald Reagan and "Officer Ed" Meese, I close with a quote from Mick Jagger: "You can't always get what you want, but you get what you need." We don't need Robert Bork, not his wit nor his brand of intellect, on the U.S. Supreme Court, where he might judicially legislate the Ninth Amendment out of existence.

[The writer] is a lawyer and member of the Virginia State Bar since 1973. He received his law degree from Washington & Lee University in 1973 and his bachelor's degree from Randolph-Macon College in 1968.