Thursday, June 23, 2005
United States Constitution, 1788 - 2005: Promise Unkept
Via Gay Orbit and SCOTUSblog, the Kelo decision is in, and it’s a sad day in a string of many for The Constitution. Apparently some of the Supreme Court Justices ran out of toilet paper and needed something to replace it.
Thomas dissents, naturally:
I cannot agree. If such “economic development� takings are for a “public use,� any taking is, and the Court has erased the Public Use Clause from our Constitution, as Justice O’Connor powerfully argues in dissent. Ante, at 1—2, 8—13. I do not believe that this Court can eliminate liberties expressly enumerated in the Constitution and therefore join her dissenting opinion. Regrettably, however, the Court’s error runs deeper than this. Today’s decision is simply the latest in a string of our cases construing the Public Use Clause to be a virtual nullity, without the slightest nod to its original meaning. In my view, the Public Use Clause, originally understood, is a meaningful limit on the government’s eminent domain power. Our cases have strayed from the Clause’s original meaning, and I would reconsider them.
As do O’Connor, Rehnquist, and Scalia, with Thomas.
Main Kelo V. New London page, via SCOTUSblog, links to those and the rest.
The string of property decisions of which this is but the last straw are some of the worst jurisprudence imaginable, and collectively enough of a body slam to enfeeble The Constitution beyond all recognition and rational applicability.
Perhaps our grandchildren will get themselves a new one and do a better job writing it.
Update:
Kevin also covers it nicely. His post made me think about the possible connection between real estate values/bubbliness and the concept of takings to increase tax revenues through alternate use. I also hadn’t read the majority opinion at all, so I wasn’t aware that Stevens had couched it as a states rights issue, of all things. We won’t correctly interpret or enforce the federal Constitution because protecting property is up to your state? Doh.
Update 2:
Steven Taylor also comments on the decision, and points to a comprehensive roundup at Arguing With Signposts.
Kelo-related posts:
Will The Supremes And Bad Lawyering Perpetrate A Constitutional Travesty?
United States Constitution, 1788 - 2005: Promise Unkept
Bad Precedent
Additional Kelo Fallout Thoughts
Will the Money Be Followed?
Kelo and Raich: The Root of the Supreme Court Problem?
Olek V. New London Case
Kelo and "Fair" Value
Boycotting Can Be Hard
Becker and Posner on Kelo and Eminent Domain
Kelo, IOLTA and Drugs - Oh My
Sama on Kelo, Disney, and Boston's West End Tragedy
Was Kelo The Lost Battle That Won The War?
You Thought The Kelo Outcome Couldn't Be Worse?
