Issue link: https://www.epageflip.net/i/276751
Greg Stevens, Publisher Chip Thompson, Editor Editorial Board How to have your say: Letters must be signed and provide the writer's home street address and home phone number. Anonymous letters, open letters to others, pen names and petition-style letters will not be allowed. Letters should be typed and no more than two double-spaced pages or 500 words. When several letters address the same issue, a cross section will be published. Email: editor@red bluffdailynews.com Phone: 530-527- 2151 ext. 112 Mail to: P.O. Box 220, 545 Diamond Ave., Red Bluff, CA 96080 Facebook: Leave comments at FaCEbook.CoM/ rbdailynEwS Twitter: Follow and send tweets to @rEdbluFFnEwS By Noah Feldman One of the great pleasures and benefits afforded by the Supreme Court is the illusion of historical continuity. The court's elegant building is a good example: it looks as old as the Capitol — maybe as old as the Acropolis — but it only dates to 1935. The same goes for one or two Supreme Court opinions each year, in which the court pretends it's the same in - stitution that has always ex- isted, not a rotating body of new justices bound by historical circumstance. Monday's lone decision, Brandt Revocable Trust v. U.S., is an object lesson in this important form of historical make- believe. The court traced its logic back to the great era of railroad expansion in the mid- 19th century — and in so do - ing told us more about its vision of itself than about railroads or U.S. history. The case itself was a prop - erty dispute, and its legal ori- gins really do go back to 1875, when Congress passed a law granting railroads a right-of- way 200 feet wide across pub - lic lands to encourage rail con- struction. The petitioner in the case, the Brandt Trust, owns an 83-acre parcel in Fox Park, Wyo., surrounded by the Med - icine Bow-Routt National For- est. (The land was the site of an old saw mill owned by the trust's creator, Melvin Brandt, which closed in 1976.) The land is held subject to a right-of-way granted in 1908 to the Laramie, Hahn's Peak and Pacific Rail - road. The railroad was never economically efficient — you can find pictures under the heading Ghost Town Photos — and in 2006 its successor own - ers finally shut it down and took up the ties and rails. That's when the federal gov- ernment stepped in. It told the owners of land along the rail- road, in essence, "1908 is call- ing. It wants your right-of-way back." According to the Inte- rior Department, once the rail- road was no longer using the right-of- way, it should have reverted back to the govern- ment that granted it in the first place. So far, so logical: what the government giveth it should be able to taketh away. But the Brandt trust had a creative ar - gument to make: It said that the right-of-way was just an ordi- nary easement, and under com- mon law principles you learn in the first year of law school, an abandoned easement ceases to exist. The district court and court of appeals both said nice try, rejecting the claim and holding for the government. The Supreme Court re - versed 8-1, and held in favor of the Brandt trust. Here's where things start to get really nostal- gic. The court said it was rest- ing its decision on a 1942 Su- preme Court case, Great North- ern Railway v. U.S. In that case, a railroad had discovered oil beneath its right-of-way, and wanted to drill. The Franklin Delano Roosevelt administra - tion argued that the right-of- way granted to the railroad un- der the 1875 law didn't cover mineral rights — because it was just an ordinary easement. The court agreed, keeping the drill - ing rights for the government. As Chief Justice John Rob- erts depicted it in Monday's de- cision, the government was hoist by its own petard. It "loses that argument today," he wrote, "in large part because it won when it argued the opposite be - fore this Court more than 70 years ago." Having said the right-of-way was just an ease- ment when it suited the gov- ernment's interests, the gov- ernment could not now claim the right-of-way was more than easement when it wanted its rights back. Of course, as Justice Sonia Sotomayor pointed out in her solo dissent, the court could easily say that railroad rights- of-way are special. The right- of-way, after all, was created by that famous 1875 statute, not by the common law, so there was no reason to insist that com - mon law easement rules should apply. For good measure, Soto- mayor pointed out that there's actually a practical conse- quence to the government's de- cision. Lots of former railroads have been converted to paths for biking, jogging and walk- ing. Why, then, did eight justices vote against bike paths, not to mention the government? The reason is the value of historical continuity. The court was tell - ing the government, "you can't play fast and loose with us — you just said the right-of-way was an easement!" In reality, of course, it was the Roosevelt administration that said it 72 years ago to nine long-gone justices. But pretend - ing that the court is a continu- ous "we," and that the Obama administration is the same ex- ecutive as FDR's, emphasizes the continuous nature of politi- cal authority. One of the most important fictions of the common law was that the king had two bodies, a "body natural" that dies like ev - erybody else and a "body pol- itic" that is immortal and con- tains the powers of government which never die. To us, the fiction of our own immortal, collective body pol - itic may seem like nonsense on stilts. But on what other ground, really, are "we the peo- ple" the same ones who made our Constitution? Nostalgia makes us feel warm and cozy, but historical continuity is more than just an hour of the An - tiques Roadshow: It's a foun- dation of political faith that we aren't completely ready to jet- tison. Noah Feldman, a law professor at Harvard University and the au - thor of "Cool War: The Future of Global Competition," is a Bloom- berg View columnist. Follow him on Twitter at @NoahRFeldman. Column Supreme Court stuck in Wild West 1875 Cartoonist's take WaSHiNGtoN » In Sep- tember 1958, a future col- umnist, then 17, was un- packing as a college fresh- man when upperclassmen hired by tobacco compa- nies knocked on his dormi- tory door, distributing free mini-packs of cigarettes. He and many other aspir- ing sophisticates became smok- ers. Six years later — 50 years ago: Jan. 11, 1964 — when the Sur- geon General published the report declaring tobacco carcinogenic, more than 40 percent of Ameri- can adults smoked. Today, when smoking is considered declassee rather than sophisticated, fewer than one-fifth do. In June 1971, a New York cou - ple decided their Bon Vivant brand vichyssoise tasted strange so they put aside their bowls, too late. Within hours he was dead and she was paralyzed from bot - ulism poisoning. And within a month Bon Vivant was bankrupt, proof of the power of health-re- lated information to change Americans' behavior. These two excursions into the sociology of health are occa - sioned by the remarkable recent report of a 43 percent reduction in the obesity rate among chil- dren ages 2 to 5. In 2004, about 14 percent of those children were obese; in 2012, about 8 per- cent were. The New York Times, which showed sound news judg- ment in making this its front- page lead story, reported that the result of the large federal survey was "a welcome surprise to researchers." It was welcome because obe - sity begins early — those from age 3 to 5 are five times more likely than others to be over- weight or obese as adults, when being so makes people more sus- ceptible to cancer, heart disease and stroke. It was a surprise be- cause no one knows why the rate dropped. A reasonable sur- mise, however, is that one cause is the cumula- tive effect of talk about sensible eating and exer- cising. Certainly one les- son of the last 50 years is that one of the most cost-effective things government does is disseminate public health information concerning behav - iors as disparate as smoking and using seat belts. Mark Twain said humans are the only animals that blush — or need to. Leon Kass, University of Chicago professor emeritus now at the American Enterprise In - stitute, has written that humans are the only animals that do not "instinctively eat the right foods (when available) and act in such a way as to maintain their nat - urally given state of health and vigor. Other animals do not over- eat, undersleep, knowingly in- gest toxic substances, or permit their bodies to fall into disuse through sloth, watching televi- sion and riding in automobiles, transacting business, or writing articles about health." There may be no such thing as an unmixed blessing, and there was a cost even to the conquest of polio. Americans, whose national DNA disposes them to anticipate progress to be a product of tech - nology, interpreted the Salk vac- cine as establishing what can be called the "polio paradigm." In 1900, the death rate from tuberculosis was nearly 200 per 100,000; by 1950, after the first effective anti-TB drugs ar - rived, it was approximately 20 per 100,000. This enormous im- provement was largely the result of improved nutrition, housing, hygiene and food handling. Ty- phoid, too, became rare before effective drugs became available. Streptomycin may have pro- duced only 3 percent of the re- duction of TB but our cultural bias is toward the improved- health-through-medical-inter- vention model. This produces high-tech, hospital-oriented, dis- ease-and-therapy-centered pol- icy. The premise that health is the product of medicine leads government to believe it can de- liver health by judiciously dis- tributing preventive or therapeu- tic medicines. A significant portion of Amer- ica's health care bill — caused by violence, vehicular acci- dents, coronary artery disease, lung cancer, AIDS, Type 2 di- abetes brought on by obesity, among other problems — results from behavior widely known to be risky. So as we wallow waist deep in the muddy debate about health care, we should remem - ber that the relationship between increased investment in medi- cine and improvements in health is complex and tenuous. As Kass has said, in an era of organ transplants and the crack - ing of the genetic code, it seems boring to suggest that the most important path to health is a va- nilla virtue — prudence. Nev- ertheless, unlike oysters or os- triches or ocelots, featherless bipeds — Plato's unenthralled description of human beings — are animals that go through their days making choices. And they often make bad ones. Such choices often require ameliorative medicine. Which il - lustrates this point: Although preventive medicine is real, so- ciety's level of health does not depend primarily on medicine, which too often must be resorted to when our behavior has for - feited our health. George Will's email address is georgewill@washpost.com. Column The benefits of health prudence as Chief Justice John roberts depicted it in Monday's decision, the government was hoist by its own petard. Sounding off A look at what readers are saying in comments on our website and on social media. nice to know the "what's Happening" in redlands, but would really be more inter- ested to know "what's Happening" in red bluff instead. Perhaps the typesetter needs a lesson in geography or spelling? Susan Messler: Comment about incorrect cal- endar listings appearing in Wednesday's edition bull crap....take away the library to put in a damn jail.....this county is stupid... dave Cleveland: Comment on proposed sites for Red Bluff Library Last Saturday I attended the Tehama County Dem- ocrat's fundraising dinner where I saw candidate for U.S. Congress Heidi Hall speak for the first time. The house was packed with about 175 people and Hall delivered a rousing speech to an ex - cited crowd. One of the hottest topics was the drought and, as a program manager with the California Department of Water Resources, Hall ad - mitted the issues are com- plicated. But they're made more so by the current rep- resentative's passive policy regarding realistic solutions to the myriad of water issues in the state. Hall promised to ensure that we have a seat at the table in all negotiations affecting our water supply. The most powerful part of Hall's speech was de - voted to her son, a veteran of the US Army. She spoke of his struggles as a father who works 60 hours a week for minimum wage and still needs food stamps to make sure his family's needs are met. Hall's commitment to veterans is personal. She plans to strengthen job training, help pass the Re - turning Heroes Credit, sup- port the modernization of the VA and hire a staff mem- ber to help veterans with the disability claims process. In sum, Hall demon- strated her firsthand knowl- edge about some of our most important local issues. She received a standing ova- tion and before she could re- turn to her seat, a supporter darted up with a donation in hand. People are excited about Heidi Hall. — Sarah Casia, Corning lEttEr Reader impressed by U.S. Congressional candidate Hall George Will OPINION » redbluffdailynews.com thursday, March 13, 2014 » MORE AT FaCEbook.CoM/rbdailynEwS AND TwiTTEr.CoM/rEdbluFFnEwS a6