Spotlight on Excellence in Rhetoric - Tulsi Gabbard's "Aloha" Speech at Charlie Kirk Prayer Vigil

Tulsi Gabbard:  "Living aloha, living that love and respect, it doesn’t mean being a pacifist or rolling over when our ideas are challenged or when our freedoms are under attack, actually it’s the exact opposite" 

 

As an appellate advocate I like to highlight good rhetoric, and I was very much impressed by the speech given by our Director of National Intelligence, Tulsi Gabbard, a veteran and former member of the Democrat Party, at the Prayer Vigil for Free Speech martyr Charlie Kirk.  

 

Most moving was her explanation of the true meaning of "Aloha:"

 

Aloha. In the book of Corinthians, Paul said, “Therefore we are always of good courage and know that while we are at home in the body, we are absent from the Lord.” We are of good courage, I say, and prefer to rather be absent from the body and be home with the Lord.

Ultimately, for every one of us, the time that we have in this world is temporary. Our time will come, sooner or later, and so the critical question that we have for ourselves is whatever time we have, what are we doing with it? How are we making the most of every day that we have? And Charlie Kirk, every single day, carried out his mission. Motivated by his faith in Jesus Christ, and his unwavering dedication to defending our God-given freedoms enshrined in our Constitution and Bill of Rights. Because of his commitments and dedication, his impact, here and around the world is profound. And it is a beautiful thing to see it playing out now.

Probably like many of you, I had the privilege of joining Charlie at some of his different campus visits and, it was truly something to behold. Because he did things that no one else would do. As I sat with him in the very first time, huge crowd, thousands and thousands of, yes students, but faculty members and people of all different ages, and the first two or three people who had stood in line, waiting to say something to Charlie were very kind and they thanked him for his work. They praised him. They talked about how he positively impacted their lives. It was powerful to witness and to see, but Charlie wasn’t there for praise. He would call to the crowd and say, “Hey, who here disagrees with me? Come to the front of the line.” He listened, carefully, to everyone. Even when others in the crowd booed, whoever was speaking he told them to be quiet and to let this person speak, to show them respect. And he engaged in that lively debate, he encouraged it, he welcomed it, and he inspired it in others. Not belittling them, not arguing just to argue, but to have a real, sincere dialogue.

You know, I’ve said many times and, every soldier lives this fact, this truth: I may disagree with what you say but I will defend to the death for your right to say it. Charlie lived by this principle.

Charlie lived by the principle that no matter how horrible another person’s speech may be, their ideas must be defeated by better ideas. Not by resorting to violence.

You know, Charlie, was killed on September 10. On September 11, we observed the twenty-fourth anniversary of the Islamist terrorist attack on our country twenty-four years ago. Now these events have something in common. They were both carried out by those who hold onto ideologies that cannot stand up to scrutiny and challenge, so they feel that their only recourse is to commit an act of violence to silence those who oppose them, and to intimidate and terrorize others into silence. This is the definition of terrorism. We cannot allow ourselves to be terrorized into silence. We need to live Charlie Kirk’s example. The example that he set. That are captured by the words of Reverend Martin Luther King: “Darkness cannot drive out darkness; only light can do that. Hate cannot drive out hate; only love can do that.” This was more than a quote from an icon in our past. To Charlie, he lived this every day, and he inspired countless people around the world to do the same.

And in the wake of this tragedy, this has been, to me, has been beautiful to see how today and, you know, Sunday football games all across the country, these teams were leading moments of silence, putting pictures of Charlie up on the big screen, having a flyover with the flags flying at half-staff to honor the impact of Charlie’s life, how he positively inspired countless people, and how it’s up to us to continue Charlie’s legacy. It’s time for us, every day in we engage with others, to choose to live aloha. Love, respect.

You know, from my home state of Hawaii the reason why we greet each other with the word ‘aloha’ is because of its deeply spiritual meaning. It doesn’t actually mean hello or goodbye. We greet each other with aloha because what we are really saying when we say aloha is I see you as a child of God and I respect you as such. It is to recognize that God is all-powerful, and God’s love is all-powerful. Love is not weak. Respect for others is not weak. There is nothing more powerful than love. Living aloha, living that love and respect, it doesn’t mean being a pacifist or rolling over when our ideas are challenged or when our freedoms are under attack, actually it’s the exact opposite. It means standing up, fueled by love to defeat hate, to defeat that evil and that darkness, and to speak the truth and defend our fundamental freedoms that are granted to us by God. Charlie lived this.

Charlie embodied this, and Charlie changed hearts and minds of countless people around the world because he made a conscious choice every day to choose love. I had a friend of mine who sent me a text the day after Charlie was killed, really distraught, and she said, “What do we do now? I know the answer should be love, the answer should be peace, but Charlie tried that. And it didn’t work.” And my response to her was, “No, it did work. Powerfully.”

And that’s why they killed him. We look at the movement that Charlie inspired around the world. Love, truth, freedom, turning to God in good times and hard times, not asking what God what he will do for us, but as Charlie said, “I am far more interested in what God wants from me than what I want from God.” He said, “My prayer is very simple. God, use me for your will.”

If only ten of us committed ourselves to continuing Charlie’s mission, that alone would be incredible, to be that fertilizer and that water that will help spread this light that is inspired by God’s love. But there are far more than ten of us. There are countless people.Countless people around the world, speaking different languages, have different backgrounds, different views and opinions, who are eager to carry on Charlie’s mission. To spread this light inspired by God’s love, which will also expose those who are trying to shut down free speech, trying to silence us through violence, intimidation, and terrorism. It will expose them for who they are and the hollowness and emptiness and weakness of the ideas that they present.

So while we will miss Charlie dearly, our hearts should not be broken. Because we are confident that Charlie is at home with the Lord. Embraced in the loving arms of Jesus Christ to whom he dedicated his life. Those who are full of anger and hopelessness and hate right now, some of them protesting outside this hall today, unfortunately, they do not have the spiritual happiness that Charlie experienced. They’re empty, and this is where their anger is coming from: it is their rejection of God, their desire to be God and therefore they have made God their enemy.

I have hope today that every one of us will do our best to shine the light of God’s love in our lives and in our work, that we will treat each other with aloha, respect, and stand strong and unshakeable in the defense of our God-given rights and freedoms. May God bless you all and may God bless this great nation. Aloha. 

  

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Breaking news - Supreme Court rules legislative bodies cannot "take" private property by way of untethered "fees" (Sheetz v. County of El Dorado)

United States Supreme Court:  legislative bodies cannot "take" property by way of unlimited "fees" 

A recent Supreme Court opinion illustrates how lower courts often get it completely wrong, despite apparently clear precedent, and as this case shows, this is particularly likely to occur when courts get swept along with a judicial trend.  Such an unfortunate trend is interpreting the Fifth Amendment's bar against taking property without just compensation so narrowly as to permit the government to do virtually whatever it wants to a landowner's property, no matter logic or the law. 

In Sheetz v. County of El Dorado, No. 22–1074 (April 12, 2024), a unanimous Supreme Court found California courts had it entirely wrong when they found (the term "rubber stamp" comes to mind) an outrageous "fee" a landowner must pay to build a home -- having no relationship to the services provided or the cost of the project to local government -- did not implicate the bar against the "taking" of private property. The practical effect of ignoring the full effect of the Firth Amendment is that "fees" enacted by a legislative body have no upward limit and may take five, ten, or more percent of the value of the property, and a property owner may not even bring a Fifth Amendment claim.

The opinion authored by Justice Barett found these courts had misapplied prior precedent.  As the syllabus to the opinion sets forth, the issue was whether a California county could impose a $23,420 "traffic impact fee" upon an ordinary residential landowner unlucky enough to own a lot in El Dorado County and who wished to build a home:

As a condition of receiving a residential building permit, petitioner George Sheetz was required by the County of El Dorado to pay a $23,420 traffic impact fee. The fee was part of a “General Plan” enacted by the County’s Board of Supervisors to address increasing demand for public services spurred by new development. The fee amount was not based on the costs of traffic impacts specifically attributable to Sheetz’s particular project, but rather was assessed according to a rate schedule that took into account the type of development and its location within the County. Sheetz paid the fee under protest and obtained the permit. He later sought relief in state court, claiming that conditioning the building permit on the payment of a traffic impact fee constituted an unlawful “exaction” of money in violation of the Takings Clause. In Sheetz’s view, the Court’s decisions in Nollan v. California Coastal Comm’n, 483 U. S. 825, and Dolan v. City of Tigard, 512 U. S. 374, required the County to make an individualized determination that the fee imposed on him was necessary to offset traffic congestion attributable to his project. The courts below ruled against Sheetz based on their view that Nollan and Dolan apply only to permit conditions imposed on an ad hoc basis by administrators, not to a fee like this one imposed on a class of property owners by Board-enacted legislation. 84 Cal. App. 5th 394, 402, 300 Cal. Rptr. 3d 308, 312.

In other words, the trial court, the Third Appellate District of California, and the California Supreme Court (which denied review) did not give full effect to precedent such as Nollan v. California Coastal Comm’n, 483 U. S. 825 (1987), and Dolan v. City of Tigard, 512 U. S. 374 (1994) indicating a fee with no nexus to the effect of the actual development is a "taking."  As Justice Barret wrote:

The California Court of Appeal rejected that argument because the traffic impact fee was imposed by legislation, and, according to the court, Nollan and Dolan apply only to permit conditions imposed on an ad hoc basis by administrators. That is incorrect. The Takings Clause does not distinguish between legislative and administrative permit conditions. (Sheetz., p. 14.)

Justice Barret and the remaining eight justices all agreed the fact a fee was imposed by a legislative body, rather than being imposed by a regulatory power, did not insulate said fee from scrutiny.  Simply put, the Bill of Rights applies equally to the executive and legislative branches of government.  

Therefore, the majority opinion explained the proper test for considering whether a "fee" is a taking:

Our decisions in Nollan and Dolan address this potential abuse of the permitting process. There, we set out a two-part test modeled on the unconstitutional conditions doctrine. See Perry v. Sindermann, 408 U. S. 593, 597 (1972) (government “may not deny a benefit to a person on a basis that infringes his constitutionally protected interests”). First, permit conditions must have an “essential nexus” to the government’s land-use interest. Nollan, 483 U. S., at 837. The nexus requirement ensures that the government is acting to further its stated purpose, not leveraging its permitting monopoly to exact private property without paying for it. See id., at 841. Second, permit conditions must have “‘rough proportionality’” to the development’s impact on the land-use interest. Dolan, 512 U. S., at 391. A permit condition that requires a landowner to give up more than is necessary to mitigate harms resulting from new development has the same potential for abuse as a condition that is unrelated to that purpose. See id., at 393. This test ap- plies regardless of whether the condition requires the land- owner to relinquish property or requires her to pay a “monetary exactio[n]” instead of relinquishing the property. Koontz, 570 U. S., at 612–615. (Id., p. 6.)

Analysis

The degree to which the lower courts "got it wrong" is stunning, and, in particular, the narrow reading of Nollan/Dolan is quite troubling.  As to the failure of the California Supreme Court to show any interest in preventing local government from unlawfully taking private property, the fact it declined to review an appellate opinion finding one of the protections of the Bill of Rights does not apply simply because it was the legislature that violated a citizen’s rights speaks for itself.

Though the opinion was unanimous, it leaves open the question of whether a particular fee is permissible, to wit, whether a particular fee meets constitutional muster, i.e, whether it has an  "“‘essential nexus’” to the government’s land-use interest and has “‘rough proportionality’” to a property’s impact on that interest." (Concurrence by J. Gorsuch, p. 1.)

Of course, if a legislature or similar body may impose an unlimited "fee" upon someone wishing to build a single home, under the rubric that limitations on such fees do not apply to legislative enactments, then the Fifth Amendment "takings clause" has no effect as long as the law classifies the taking as a legislatively-mandated "fee."

As noted in his concurrence, Justice Gorsuch is of the opinion whether a fee is a "taking" does not depend upon whether it is imposed upon a single property or a class of properties as the same constitutional rules apply to the rights of the "many" as they do to the "few."  Justice Gorsuch notes the majority opinion leaves this question for another day:

The Court notes but does not address a separate question: whether the Nollan/Dolan test operates differently when an alleged taking affects a “class of properties” rather than “a particular development.” (Id.)

Indeed, the concurrence of Justice Kavanaugh, to which Justices Kagan and Jackson joined, recognizes this issue has not been resolved.  However, Justice Kavanaugh takes the view the Sheetz opinion does not prohibit local government from tailoring land-use fees based upon the effect of an entire development in toto rather than requiring that the fee have a nexus to the effect of a single property owner.

Finally, the role of the Pacifica Legal Foundation must be noted. As did the Cato Institute, Pacifica filed an amicus curiae brief.  If it were not for the efforts of his own counsel and these "friends of the court, Mr. Sheetz might still be stuck paying a nearly $24,000 "traffic fee" to build what the Supreme Court termed "a modest prefabricated house" for his wife and grandson.

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