The Court once tops itself
In lieu of the judicial monstrosity that was Kelo v. New London to close last year's term, the five Caesers of the Court have decided that they have the ultimate authority in war-time decisions. It makes one wonder if the Court has any common sense???
posted by AmericanExceptionalism @ 5:35 AM
8 comments
8 Comments:
what was so wrong with the Kelo decision. as long as the court can attach something to the "public use," then why not? don't we WANT malls and shopping centers. the same people bashing KELO usually support corporate takeover of anytown USA. can't have it both ways in my opinion. DISCUSS
The Kelo decision is textually wrong, but it really wasn't surprising because it followed past bad decisions that have expanded the textual language "public use" in the 5th Amendment. Attaching something to "public use" is not what the Framers intended when they created the Amendment. Property rights are our most sacred and natural rights that any citizen can have; that is why the Framers were so adament about protecting them.
As for your corporate takeover comment, I take value in the text of the Constitution. Of course we want malls and shopping centers as we all want to live in the 21st Century. However, development occurs when there is a willing seller and an financially able buyer to come to an agreement; that is how a democratic society works. What happens when the government blights your property because they think they can raise more tax revenue is not "public use" and is border-line tyrannical.
I never asked for it to be both ways, I only ask for one way; and that is to read the text of the Constitution to protect citizens from a hostile government infringing on our natural rights. Thanks for your comment.
well, i really didn't mean the "have it both ways" comment to be directed at you personally...just many people, generally speaking.
regardless, why must development occur only with a willing seller and a financially able buyer? the very use of eminent domain involves, many times, an UNWILLING buyer. sure, parks, roads, etc..those are commonly held "public uses." so why not expand what the common law has already considered to be a public use. a shopping center for all to use freely. call it a "public use" and whammo, no constitutional problems with Kelo.
perhaps the framers were very concerned about property rights (afterall, those slaves were all too valuable to lose), but today it just isn't the same. power is in the people through voting. it's not that there is some invisible being taking someone's property. it is city councilmen, board of aldermen, local government, who afterall are chosen by the people.
"public use" can be manipulate around plenty, as most legalese involved in interpreting the common law. the power is in the people, vote those you do not like out of office. but perhaps a shopping center MAY fall under "public use" although the framers didn't intend it. but isn't this a constitution we are expounding?
Honorable En Banc
correction..i wrote that too quick..i meant eminent domain takings involve an unwilling SELLER, many times.
I didn't take it as a personal attack, no harm done.
As for your quoting of Chief Justice Marshall in McCulloch v. Maryland, while it is a good attempt for the justification for expounding the Constitution to mean whatever society wants it to mean at that current time; I disagree. I believe this quote serves as a reminder of the importance of having created a Constitution and we should think long and hard before tinkering with it. It is a quote that liberal Con-law professors use to promote the so-called "living constitution" in which the Constitution evolves over time. Although others will argue against me, this quote serves as a reminder that the Constitution is an unique document and shouldn't be tampered with just to promote a certain policy. If I were a justice back with Marshall, I would have demanded that this phrase had been taken out of the opinion because some people this is a blank check to write whatever they would like into the Constitution.
As for the "public use" definition, we can agree to differ. However, it has to do with more than "public use" and the right of each individual to be free to choose how they want to distribute their land. Some scholars will even argue that the 5th Amendment is grounded in nuisance law and that anything (see zoning) that deprvies you a right to your property is a taking. I think you might be confusing takings and public use. You must remember that when the 5th Amendment was enacted America was a developing country and there was a need to develop public roads, streets, bridges, etc...the essentials for a developing country. Likely, one could argue that shopping malls don't fit into the history and tradition of "public use."
The Framers who had fought the Revolutionary War wanted to provide for a developing country, and provide citizens just compensation for their land. This was a totally different system than what they had in England, where the government would take your land whether you liked it or not.
I understand your comments, but if you continue to expand the definition of words to mean whatever you want them to mean, we no longer live under a rule of law.
On a side note, since you are a adamanet supporter of Kelo, how would you feel if your local legislation decided that they could take your house (or your parents, grandparents, friend, etc) just because they thought they could generate more tax revenue for the city? With one fall-swoop the government passes legislation, gives you limited time to present your claims, and the courts will hold up the legislation as long as it passes the rational basis test (not hard for the government to justify). This is border-line tyranny. Is that the type of country you wish to live in? I would hope not.
your points are completely valid, and of course i am also worried about an expansion of government power to the point of tyranny. but, i think it is still much to early to so severly criticize the decision.
the government cannot just come to somebody's house and say he are taking your property regardless of whether you want to sell or not. there has to be a public purpose (i think this is where we disagree the most, as to the connection to the public purpose necessary), but not only that, the kelo decision also says that the property at issue must be "distressed." at least, one can hold Kelo to its facts because the property there was in fact distressed (or at least the city was reasonable able to determine so).
it is just a necessity in my view that we continually interpret the constitution so that it adapts to our times. it is indeed a great document, that is long lasting, but we are a government of people, by the people, and for the people. one could say that just about every federal agency is a violation of the constitution because of an impermissible delegation of power from the legislative to the executive. BUT, picture a country without the EPA, FDA, Dept of Homeland Security. a living constitution allows for such things.
also, please note that i do not in anyway imply that the people should be able to change the meaning of the constitution, or that judges should listen to the public sentiment. there is a fine line between that and judges recognizing the needs of society and interpreting the constitution apporpriately.
also, i perhaps have incorrectly intertwined public use and takings. i am no expert on 5th amendment, at least for its non-criminal clauses.
i don't think the "putting yourself in the position" argument is appropriate because what's true for the whole is not necessarily true for the parts. otherwise, the death penalty would be abolished (put yourself in the position of an innocent person convicted of murder), miranda would never be challenged (put yourself as an uneducated person facing tough interrogation), etc...ultimately, as with any decision, it is a cost-benefit analysis, and our supreme court apparently thinks it is cost-beneficial to allow what happened in Kelo. whether kelo will be expanded any further yets to be seen i suppose.
I believe that we can agree to disagree. Most of your comments were well reasoned and you are encouraged to comment on future posts.
Okay Federalists, a basic question about your beliefs: Do most of you believe that the Bill of Rights were incorporated against the states or do they only apply to the federal government? If they only apply to the federal government, why is Kelo a problem for you? The takings clause is in the 5th amendment, not the 14th. Please explain.
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