A Stitch in Haste

Here are my hasty stitches about the Supreme Court's ruling in Kelo v. New London:

--The majority opinion relentlessly talks about railroads, dams, the blighted neighborhoods of Berman and the concentrated Hawaiian land holdings of Midkiff and uses them to essentially say "See, there was never a real 'public use standard' anyway." But as the Cato Institute's amicus brief (PDF - 40 pages) tried to explain, all those examples of private-for-private takings were based on physical necessity. A railroad, even a private one, simply must run in a straight line; you can only build a dam where the river is; the only way to break up a land oligopoly is to, um, break it up. This was simply not the case in Kelo. The city had other options; they just didn't feel like using them. But the Court now, as sweeping new law, says so what? — "Clearly, there is no basis for exempting economic development from our traditionally broad understanding of public purpose." That is just unequivocally and unforgivably wrong.

--The majority does hold out some hope in that it reserves the "hypothetical" case of a strictly one-for-one private transfer for no other reason than to increase tax revenue (e.g., Justice O'Connor's sublime "Motel 6 for a Ritz Carlton" example). I find Justice Stevens' use of the word "hypothetical" rather obnoxious, since that was exactly what happened in the Poletown case that started this whole travesty — the State of Michigan bulldozed an entire town to give the land directly to General Motors. (UPDATE: More on this paradox at SCOTUSblog.)

--The majority opinion mentions the Court's "strong theme of federalism, emphasizing the 'great respect' that we owe to state legislatures and state courts..." As I have blogged more than once, those who worship the false gods of "federalism" and "states' rights" got exactly what was coming to them. How much happier are you, now that your home can just as easily be taken by a state or local government as by the federal government? Because that is what "federalism" means today.

--I take little solace in Justice Kennedy's concurrence suggesting that there might be some sort of "heighetened rational-basis review" for more flagrant private-for-private takings. The Justice who gave us such pro-rights decisions as Lawrence v. Texas and Roper v. Simmons should have been more forceful:

Petitioners and their amici argue that any taking justified by the promotion of economic development must be treated by the courts as per se invalid, or at least presumptively invalid. Petitioners overstate the need for such a rule... A broad per se rule or a strong presumption of invalidity, furthermore, would prohibit a large number of government takings that have the purpose and expected effect of conferring substantial benefits on the public at large and so do not offend the Public Use Clause.

Silly me, I was under the impression that the Bill of Rights might, just might, automatically call for more heightened scrutiny than mere economic regulation. (And we now know from another Slaughter-Rights Case, Gonzales v. Raich regarding medical marijuana, that the "rational-basis test used to review economic regulation" is no test at all. The Fifth Amendment deserves better.) (Over at SCOTUSblog, Lyle Denniston takes a different view of Kennedy's concurrence.)

--I have little to say about Justice O'Connor's main dissent, except "yup." Justice Thomas's lone dissent is a little too "originalist" for my tastes. Why open that can of worms when strict textualism gets you exactly where you want to be?

--Wouldn't it be nice if all those grass-root, "let the voters decide," Red State, "damn activist judges" types put as much effort into enacting state constitutional amendments limiting eminent domain as they did discriminating against gays? You might think people like that would care more about keeping their own homes than what goes on in their neighbors' homes. We'll see.

In 1873, five years after the Fourteenth Amendment was ratified, the Supreme Court, in what today are called the Slaughterhouse Cases, brazenly and summarily declared an entire portion of that amendment, the Privileges & Immunities Clause, a nullity. It has been inert ever since.

Since it was ratified, the Ninth Amendment has similarly been relegated to oblivion by jurists who have arrogantly declared it to be an "inkblot on the Constitution."

Today that sad tradition continues, with one of the most fundamental checks on government abuse of private citizens, eminent domain's "public use" requirement, now simply no longer part of the Constitution.

May it rest in peace.

UPDATE: Richard Posner finally weighs in, focusing more on the "just compensation" element than the "public use" requirement that has been essentially vitiated by Kelo. He does, however, touch upon the railroad "hold-out" problem that I touch upon above. Still, a good read overall.

What did Justice Stevens say in Kelo about how "private for private takings" would likely not be abused as much as the dissenters feared?

A legal foundation ... filed a long-expected legal challenge Thursday to the $280 million in tax breaks and other subsidies Dell Inc. received last year after promising to build a plant employing hundreds of workers in Winston-Salem.

The lawsuit, filed by the North Carolina Institute for Constitutional Law, charges the incentives violate state constitutional prohibitions against the use of public resources for private benefit and the failure to treat taxpayers equally.

"The state is taking tax revenue and selectively handing it out to a few large companies in the interest of economic development," [a litigant] said of the Dell package Thursday.

In exchange for creating at least 1,500 jobs at the plant, and investing at least $100 million over 15 years in the area, Round Rock, Texas-based Dell is getting $242 million in state incentives and a local package of $37.2 million to cover startup, tax relief and other costs.

Now this wasn't an eminent domain case — the government didn't seize any property to give to Dell. But they did seize money (i.e, tax dollars). And if the government can seize your property to give to a better-than-you private corporation, then why can't they also give your tax dollars to those same politically favored corporations that promise economic benefits later down the road?

This may be strictly a state law case, but I'll love to see whether and how Dell tries to invoke at least the spirit if not the letter of Kelo in this litigation.

Senator Jon Cornyn (R-Texas) has introduced a bill to limit federal eminent domain use and abuse, with an important twist:

The legislation would clarify government's exercise of its power of eminent domain to be limited only for public use. "Public use" shall not be construed to include economic development. This standard of protection would apply only to (1) all exercises of eminent domain power by the federal government, and (2) all exercises of eminent domain power by state and local government through the use of federal funds.

Um, gee thanks, but I wonder whether this bill could actually be detrimental from a libertarian perspective.

Two hasty stitches:

1. For this bill to define "public use" within the context of the bill itself is utterly meaningless. For eminent domain purposes, "public use" is a constitutional term -- that was the whole point of Kelo. And, lamentations of "damn activist judges" notwithstanding, it is the role of judges, not legislators, to determine what constitutional text means. See, of course, Marbury v. Madison, 5 U.S. 137 (1803).

So for Congress to prevent itself or other realms within the federal government (e.g., the military) from private-for-private takings is very warm-fuzzy-feeling to be sure, but when push comes to shove, any dispute about what "public use" means has already been decided by Kelo. We certainly may disagree with and despise the Court's ruling, but hopefully no one disputes their authority to make it. (Note that I am not saying the the Cornyn bill would be unconstitutional, just that it wouldn't be very useful if it somehow wound up in court).

Also, I am not aware of any actual examples of federal use of eminent domain "for economic development" (except maybe with respect to federal jurisdictions such as the District of Columbia (see Berman v. Parker, 348 U.S. 26 (1954)).

Which raises another issue: I'm not sure that part of Cornyn's bill is even needed outside of the D.C. context, since seizing land for "economic development" is not an enumerated power anyway (compare: overseeing the District is an enumerated power). If I were arguing a hypothetical "federal Kelo" fact pattern in court, I would probably argue the lack of enumerated powers over a restrictive Congressional definition of "public use." (Of course, given the newest emasculation of Commerce Clause limitations under Gonzales v. Raich, arguing enumerated powers might be equally futile, but I think it would be more potent than arguing the Cornyn bill were it to become law.)

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2. Consider the second prong of the Cornyn bill: The federal government speaking softly and carrying the big stick of threatening to withhold federal funds to states unless they "behave themselves"? Where have we seen that before, and where are we going to see it again?

Here's yet another example of myopic, consequentialist libertarians seeing only the ends and completely ignoring the atrocious means by which we get there. It's the Internet wine cases all over again: what's a little lost textualism among "libertarians" when there's Internet wine to buy?

But how are these same libertarians going to feel, after cheering the federal government bullying the states with the threat of withheld funding, when it comes time to argue against the federal government doing the very same thing in Rumsfeld v. FAIR (the Solomon Amendment case)?

Libertarians should be aghast at this part of the Cornyn bill -- it is nothing more than yet another potential abuse of federal power and yet another betrayal of fiscal federalism, which is a far greater threat to libertarian ideals than even the Kelo travesty.

(Fighting all federal subsidization of state and local government programs, as a blanket policy, is of course a fundamental libertarian principle. But cherry-picking which funding threats to rally behind and which to let quietly slide by will only lead to claims of inconsistency and hypocrisy later.)

When it comes to bad policies, "the enemy of my enemy is my friend" is a dead end that will only result in libertarians losing on both fronts. Intellectual consistency is vital, and the funding-threat prong of the Cornyn bill is not consistent with libertarianism.

Be careful what anti-Kelo legislation you wish for -- you might get it.

The far better way to fight Kelo is at the state level: limit, by state constitutional amendment if necessary, the ability of municipalities to authorize private-for-private takings. The federal Constitution always represents only the floor on individual rights; state laws and constitutions can always afford more rights. And, since the private-for-private outrages are happening at the state and local level reather than at the federal level, clearly it makes more sense to fight the battles there, in the state houses.

The federal prong of the Cornyn bill, while a welcome symbolic gesture, is mostly irrelevant regarding Kelo. The funding-threat prong is fundamentally un-libertarian and should be opposed.

Those commenting on the Cornyn bill include WILLisms, SCOTUSblog, Coyote Blog and Out of Control.

Interesting:

In an article written as a law student, [Supreme Court nominee John G. Roberts] argued that the phrase "just compensation" in the Fifth Amendment, which limits the government in the taking of private property, should be "informed by changing norms of justice." This sounds like a nod to liberal constitutional theory, but Rogers' alternative interpretation was more protective of property interests than Supreme Court law at the time.

Of course, the horrendous Kelo decision was about the Fifth Amendment's "public use" requirement, not the "just compensation" requirement. Still, one wonders, given Roberts' relatively light paper trail, whether this article will come up in the confirmation hearings and whether any senators will use it as an oppportunity to grandstand against Kelo.

Stay tuned...

Word is spreading rapidly that New London Development Corp. ("NLDC"), the developers who won the right to seize private homes in after the Supreme Court's disgraceful decision in Kelo v. New London, No. 04-108 (2005), are now planning to charge the soon-to-be-homeless residents five years of back rent as punishment for daring to fight for their Fifth Amendment rights:

In June 2004, NLDC sent the seven affected residents a letter indicating that after the completion of the case, the city would expect to receive retroactive "use and occupancy" payments (also known as "rent") from the residents.

In the letter, lawyers argued that because the takeover took place in 2000, the residents had been living on city property for nearly five years, and would therefore owe rent for the duration of their stay at the close of the trial. Any money made from tenants — some residents' only form of income — would also have to be paid to the city.

I'm certainly not an expert on the nuances of pre-judgment and post-judgment interest on civil lawsuit awards, or payment of expenses and court costs, or any of the other mundane aspects of enforcing judgments. But it seems to me that any case that makes it to the Supreme Court is by definition not "frivolous" and that NLDC did not have the authority to seize the affected properties until the litigation finally and conclusively said they did. Therefore, the notion that NLDC has, a matter of law, "owned" the property since 2000 is indefensible.

If the law supposes that, the law is a ass.

More outrage at Hit & Run, Pejmanesque, Louisiana Libertarian, Neolibertarian Network, JunkYardBlog, Out of Control, Marginal Revolution, OzarkLad, voluntaryXchange, PoliBlog.

UPDATE: Red Guy in a Blue State crosses swords with the NLDC and makes an observation that I completely overlooked -- if Ms. Kelo and the other litigants have been paying property taxes for the past five years, then one might suggest that there is an irrebuttable presumption that the government has recognized them as the legal owners of the properties during that period. In any case, read NLDC's response to Red Guy -- it's amazingly obnoxious.

As I predicted, the Supreme Court won't revisit its disgraceful decision in the eminent domain case, Kelo v. New London, No. 04-108 (2005):

Stevens said that "the public outcry that greeted (the ruling) is some evidence that the political process is up to the task of addressing such policy concerns."

And if a few, or a few thousand, homeowners lose their property in the process, so what? A little constitutional collateral damage is no big deal, so long as "the political process" is alive and kicking, right?

Right?

As you may recall, the holding in the abominable case Kelo v. New London, No. 04-108 (2005), was that seizing property, via eminent domain, from one private party to give to another private party for the sake of economic development was a "public use" under the Fifth Amendment.

You might have thought it couldn't get any worse than that.

You'd be wrong:

A year after the county filed suit to condemn the 1,019-acre Ballardini Ranch, the two sides are steered toward a jury trial set for May.
...
"It's a very nice piece of property, which is why there's a battle over it," said Mike Chapman, the attorney representing Washoe County in its eminent domain case against the ranch's owner, Minnesota-based Evans Creek, LLC.

"This is really the last of the large ranches near town that has not been developed with houses," Chapman said, arguing the land should be protected as open space and parkland providing access to the forested mountains to the west.

So first we had Kelo saying that seizing land to foster economic development was a "public use," and now we have this Nevada county claiming that seizing land to prevent economic development is also a public use.

Can anyone say they're surprised?

Of course, restricting private development is nothing new -- property rights infringements such as zoning and historic preservation have a long and sordid history. But now such laws are almost extraneous. Local governments can simply invoke Kelo, or more correctly, "reverse-Kelo."

Because at the end of the day that's Kelo's true holding, which might actually be dubbed "Kelo-plus" -- "public use" now means anything and everything that the local hack politicians want it to mean.

The Ballardini Ranch case is different from Kelo in one respect, however: namely the other Fifth Amendment guarantee in eminent domain, "just compensation" --

A county appraisal last year put the ranch's value at $18.6 million. Evans Creek, which purchased the land in 1998 for $8.5 million, countered that the property was really worth hundreds of millions of dollars when development potential is factored in. ... The county's new appraisal puts the current value of the Ballardini Ranch at $30.2 million. A different appraisal prepared for Evans Creek by a Grass Valley, Calif., company estimates the value at $96.2 million, a difference of $66 million.

So the county is trying to steal -- or just to destroy -- tens of millions of dollars in economic value.

That's now what "public use" means.

Expect more creative definitions of what was once an unambiguous term, as local politicians grow ever more bold in their use of eminent domain.

Hat tip to Out of Control.

Susette Kelo, the namesake of the atrocious Supreme Court case Kelo v. New London, No. 04-108 (2005), which effectively rendered the Fifth Amendment's "public use" requirement for eminent domain a nullity, is working the corridors of Congress trying to help fan the flames of the post-decision backlash.

Rep. Maxine Waters, D-Calif., who wants additional legislation to withhold Community Development Block Grant funds from states that allow the taking of private property for private use, called the Kelo decision "one of the most un-American things that one can imagine."
...
Sen. John Cornyn, R-Texas, is pushing a bill that would ban the use of federal funds in any construction utilizing the Kelo decision, hoping that will force local governments to negotiate with homeowners instead of using the Supreme Court decision to kick them out.

Yeah, right, good luck with that.

I don't see Congress really accomplishing much on this issue other than to make a lot of speeches. Direct federal money to states and localities to subsidize eminent domain hasn't been significant since Title I of the Housing Act of 1949, which ushered in the "urban renewal" debacle of the 1950s and 1960s.

On the other hand, what about indirect federal money? Does no one see the analogy to the Solomon Amendment, which threatens colleges and universities with denial of all federal monies if they do not allow military recruiters on campus? Or how about the federal policy of withholding federal highway funds to states that did not adopt a 55 mph speed limit?

Why couldn't Congress theoretically demand, as a condition for continued receipt of any federal monies for any purpose, that states enact laws banning private-for-private eminent domain takings justified by nothing more than "economic development"?

I'm of course not saying Congress should impose such a "reverse extortion" abuse of the Spending Power -- the federal government shouldn't be taxing people in one state to give handouts to people in other states under any circumstances (including Katrina handouts, incidentally). My point is simply that if Members of Congress are going to grandstand about how "just plain wrong" Kelo is, then let them put their taxpayer money where their porkbarrel mouths are and literally demand change -- or else.

They've done it in the past, and they're doing it now -- why not do it when it really matters?

Two stories of fairly flagrant abuse of eminent domain recently.

First, Dallas is in eminent domain overdrive to put together a site for a new stadium for the Dallas Cowboys. The city is facing some "holdouts." Nothing new there -- holdouts are a common problem in development projects, and the recent Kelo case was not about holdouts at all, but rather about whether certain projects as a whole were permissible public uses. (The fact that sports stadiums are not a public good is a topic for a whole other chain. Furthermore, the fact that the Dallas Cowboys already have a stadium site is also conveniently overlooked.)

No, what's "intriguing" (to put it nicely) about Dallas' program is just how many "holdouts" there are:

The City Council has condemned or sought to condemn more than three-quarters of the properties it has acted on in the past four months, an analysis has found.
...
Glenn Sodd, an attorney representing some people in the affected area, said the high percentage of eminent domain cases shows that the city has low-balled residents and business owners and that its incentive program is inadequate.

It seems to me that if the overwhelming majority of property owners are "holdouts," then that creates a presumption that the city is not offering "just compensation" as required by the Constitution.

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Meanwhile, a town in Palm Beach County, Florida, is planning one of the largest eminent domain proceedings in American history:

Florida's Riviera Beach is a poor, predominantly black, coastal community that intends to revitalize its economy by using eminent domain, if necessary, to displace about 6,000 local residents and build a billion-dollar waterfront yachting and housing complex.
...
[Mayor Michael] Brown said Riviera Beach is doing what the city of New London, Conn., is trying to do and what the U.S. Supreme Court said is proper in its ruling June 23 in Kelo v. City of New London.
...
"More than 2,000 homes could be eligible for confiscation," said H. Adams Weaver, a local lawyer who is assisting protesting homeowners.

Can 6,000 people be collectively classified as "holdouts"? Did Kelo anticipate the effective razing of an entire town as "economic development"? Is a yacht club a "public good" or even a "public use"?

Kelo effectively rendered the "public use" requirement of the Fifth Amendment's Takings Clause a nullity. There's no reason to think that the "just compensation" requirement will survive Kelo-inspired eminent domain expansionism either.

Expect more headlines like those from Dallas and Riviera Beach in the future.

"Nothing is to prevent the State from replacing any Motel 6 with a Ritz-Carlton, any home with a shopping mall, or any farm with a factory."
--Kelo v. New London, No. 04-108 (O'Connor, J. dissenting)

A property-owning family in Philadelphia has filed a civil rights lawsuit against the city's economic development agency for invoking eminent domain in order to give their land to FedEx so it can construct a more convenient driveway into and out of a distribution facility.

The interesting thing about the litigation is that the plaintiffs assert that the private-for-private seizure actually violates the ruling in Kelo v. New London:

[Attorney Susan] French said Kelo actually supports the Stein family's claim because the high court's 5-4 ruling upheld the taking of private property for another private use only when the decision is the result of a carefully developed economic plan.

In the majority opinion in Kelo, Justice John Paul Stevens found that the Fifth Amendment allows government to take private property for "public use," but that it is up to local governments, by and large, to define that term.

Ruling against the landowners, Stevens found that a city's carefully formulated economic development plan is entitled to deference — even if it mainly benefits private entities.

In the Stein family's case, French said, there was no such plan in place.

That's a cute theory, and it might even work. But I doubt it.

The spirit of Kelo is that local governments are to be given great deference in their definition of the Fifth Amendment's "public use" requirement, effectively rendering it a nullity. In other words, Kelo apologists will simply assert that a "carefully formulated economic development plan" is a sufficient condition to uphold the condemnation, but not a necessary condition. There is no reason to think that those jurists, on the Supreme Court or elsewhere, who believe that Kelo was correctly decided would suddenly flip-flop simply because a town lacked a "master plan."

The one exception might be Justice Kennedy, generally considered the "swing vote" in Kelo. His concurrence made clear his view that there could, theoretically, be improper private-for-private takings, but that Kelo didn't qualify.

In any event, I suspect that few if any eminent domain challenges, with or without master plans, will ever prevail so long as Kelo is considered good law (which hopefully won't be very long). It was clearly intended as a judicial green light rather than red or even yellow. Instead, I suspect that attention will increasingly turn to the other prong of eminent domain, the "just compensation" requirement.

The case is Down Under GFB Inc. v. City of Philadelphia.

POST SCRIPT: Want more? Then see this Coyote Blog post.

The House of Representatives has passed, by a 376-38 margin, a bill preventing the use of federal funds to subsidize private-for-private eminent domain takings by state and local governments. The bill is a direct response to and denunciation of the recent Supreme Court eminent domain case, Kelo v. New London, No. 04-108 (2005), which rendered the Fifth Amendment's "public use" requirement a nullity.

The legislation had actually been introduced first in the Senate, although it has yet to vote on its version of the bill. I blogged about the issue at that time; see also this post.

While this legislation is certainly better than no legislation, I still say Congress is actually being a bit a cowardly by threatening to cut off so little federal funding.

If Congress truly wants to preserve the "public use" requirement of the Fifth Amendment's takings clause, then why not threaten to withhold all federal money to a state, not just economic development funds, unless that state passed legislation banning private-for-private eminent domain? If the issue is so important, and Kelo was so wrongly decided, then why not pass a truly compelling bill?

After all, isn't that what the federal government is doing (via the Solomon Amendment, which threatens denial of all federal money to an entire academic institution if even one unit, such as its law school, tries to exercise self-autonomy and academic freedom) to colleges and universities that dare to protest the military's "Don't Ask, Don't Tell" anti-gay policy?

The federal government has never been shy about using -- and abusing -- its spending power to force people, institutions and the states to do its bidding. So why hold back now?

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Meanwhile, regarding the "Kelo backlash," it's actually somewhat disappointing to see libertarians celebrate the various "anti-Kelo" state laws that have been enacted or proposed, but more as as a "victory for federalism" than a victory for property rights. An anti-Kelo law passed in New York, or Massachusetts, or Hawaii, will not save Suzette Kelo's home in Connecticut. In that sense, there is nothing to celebrate.

This worship of the false god of federalism is no different than people who support the idea that anti-gay bigotry is a perfectly legitimate subject for constitutionalization via ballot initiatives.

"Federalism" is a strictly neutral concept (or, if you prefer, a two-edged sword) that deserves no special respect from libertarians. The fact that some states choose to assign the words "public use" their plain and obvious meaning while other states (not to mention the Supreme Court) do not merely means that some people's constitutional rights are being respected while others' are being trampled. That is never something to celebrate, "federalism" be damned.

Remind me again how a post-Kelo Congress was going to come to the rescue to prevent eminent domain abuses?

The United States House of Representatives voted 349 to 74 to acquire a monumental cross and the park around it from the City of San Diego. The 29-foot cross has been the target of a 17-year court battle between an atheist and the city, which owns the hilltop property where the monument stands. A federal judge ruled in May that the cross could not stand in the municipal park because it violated a state constitutional prohibition on the governmental endorsement of any one religion. That ruling is being appealed by the city. Representative Duncan Hunter, a Republican congressman from San Diego, said in floor debate that federal ownership would make the existing lawsuit moot.

No word on how the bill will fare in the Senate.

As background, that ultra-liberal, ultra-activist judge -- Anthony Kennedy -- granted an emergency injunction preventing the removal of the cross while litigation proceeds through the federal courts. A federal eminent domain condemnation would mean that the cross would be reviewed according to federal Establishment Clause jurisprudence rather than California law.

In other words, an activist Congress is trying to out-activist the "activist" judges that they profess to abhor. Go figure.

Incidentally: A "public-for-public" taking? How perverse is that? One wonders what might be next -- "Gee, New York State, that's a mighty fine state courthouse you have there -- mind if we seize it via eminent domain and convert it into a federal courthouse?" And wouldn't the more logical route be to go in the opposite direction and privatize the monument? No government involvement, no Establishment Clause problems -- no harm, no foul.

Meanwhile, would a "Federal Mount Soledad Cross" survive a First Amendment challenge in a way that a "San Diego Mount Soledad Cross" could not? I have no idea. The case law these days is far too schizophrenic to say with any certainty. But that's not my point.

This is: Politicians are politicians -- whether federal, state or local -- and eminent domain is too tempting a tool for them to use responsibly. The notion that Congress -- or any other legislature -- was going to "save us from Kelo" was a foolish fantasy.

(Via Jurist.)

"Eleven states are giving voters their first chance this fall to override [sic] last year's Supreme Court ruling that allows local governments seeking more tax revenue to seize private property and give it to developers."

"Override"? What does that mean? I've heard of overturning Supreme Court rulings, but how do states "override" decisions from the high court?

They don't, of course:

The Supreme Court said states can restrict the use of eminent domain under their own constitutions.

Well yes, that was true before Kelo and would have been true had Kelo been decided any differently. That was hardly the Supreme Court being charitable -- it was the Supreme Court being cowardly.

Bottom line: Sloppy reporting for a sloppy audience.

As for the ballot measures themselves, I see no cause for celebration. Rights should not be subject to majority vote, even when such votes actually occur. The majoritarian mob that can "guarantee" rights can just as easily trample them. Gays know this all too well.

Kelo was not only wrongly decided but moronically decided. And the fact that some people, sometimes, in some places, might not be its victims misses the point entirely.