It seems like nearly everyone on this board, even those that describe themselves as flaming liberals, hate this decision.
I just don’t get it. I thought we were supposed to have a living Constitution. I thought the words of the Constitution should be reinterpreted over time. I thought the Constitution was supposed to mean whatever five men in black pajamas said it was supposed to mean.
In this case, “public benefit” has been interpreted to mean anything at all such as increased tax revenue. What is the problem? If growing and consuming grain on your own farm is interstate commerce, why isn’t higher tax revenue from a Walmart a public benefit? Freedom of speech can be interpreted to mean no unsanctioned speech before an election. The right to bear arms can be interpreted as no right to bear arms. Equal protection under the law can be interpreted to mean gay marriage. Emanations and penumbras from I forget where mean a Constitutional right to abortion. I just don’t get the problem with many on this board.
You guys want a living Constitution whose meaning changes depending on who wears the right set of pajamas, and you have it. So why are you all bitching?
ok, explain to me what concept or social change that is novel about the kelo case that would justify a re-assessment of the takings clause? plans like this and attempts to define public benefit in this fashion aren’t new. the basis of a “living document” theory is that new issues arise for which the deliberately broad provisions of the constitution are applicable, and thus constitutional decisions/provisions must be re-visited in light of the new issues. not the case with the takings clause. this has no bearing on the “living document” theory.
the people who are being logically inconsistent are those favoring local gov’t/states’ rights. the basis for the majority’s decision is that local gov’t is much better equipped to determine what is or isn’t a public benefit.
I think you are trying to make an interesting point here, but I can’t follow what you are saying. Sorry.
Can you try again?
The majority’s decision seem to be much simpler. Government can do what ever it wants except in certain policy areas of special interest to the judges like abortion and the like.
Also, my copy of the Fifth Amendment says nothing about public benefit, but does speak of taking property for public use.
It was sarcasm meant to highlight your ridiculous characterization of liberal ideas.
What you employ in the first post is the schtick of right-wing TV and radio jocks (Rush, Hannity & Ann “Man Hands” Coulter) use to pander to their audiences, “Even though I absolutely hate liberals, don’t read what they have to say and never interact with them, I can now tell you confidently everything they think and believe with perfect accuracy.”
I countered that with something even more ridiculous (Republicans like to eat babies), to exaggerate the problem in your logic.
That schtick will work much better in situations where you’re sitting behind a microphone and no one is able to call you out on it. Internet message boards where living, breathing liberals read and post is not a very good venue because all you end up doing is looking the fool.
the idea behind the “living document” interpretative theory is that the constitution is written in deliberately vague terms and emphasizing broad principles such that as society changes, becomes more complex and new social or economic issues arise, previous constitutional decisions/constitution itself need to be re-visited to determine if/how the decisions/principles apply.
the idea of transferring property from one private entity to another under the theory that the new use would create a larger aggregate public isn’t novel, hence there is no need to “re-visit” takings clause decisions on the subject.
as for public benefit vs. public use, 2 hypotheticals: would it be permissible for gov’t to condemn a tract of private property give it to a private developer who was going to build a small gas station in the corner, then a public park over the rest of the land? what about condemning a private section of land and giving it to a private utility company who was then going to supply power to the area?
I have done takings for utility access. There is no question that utilities are for public use.
Obviously there are sorts of gray areas in some cases. I don’t have a problem with the condemnation of a bombed out trailer park to make way for modern commercial development. That goes back to the 1954 case the court cited. There are plenty of gray areas that can be reasonably argued either way.
What stunned me in this case was the sweeping decision that basically seems to say that public use reference in the Fifth Amendment has whatever meaning any governmental body wants to give it. That is to say that the reference has no meaning at all. Presumably the Founders included those words for no reason whatsoever.
The living document theory is not what you describe at all. It means that rights that are plainly in the Constitution, say freedom of speech in the First Amendment or the right to bear arm in the Second Amendment are not there if five judges say so. Things that are plainly not in the Constitution, abortion or gay marriage are there if five judges say so.
I am really glad that the contracts I sign are not living. I much prefer old fashioned dead contracts.
Is the deed to your house a living document? Maybe the part that says that you have title, doesn’t actually mean that you have title if someone better connected says that he has title. These things are all a matter of interpretation after all.
I am actually much more interested in hearing from the living Constitution liberals who hate this decision. I hope some of them will step up to this thread.
actually, what i described is exactly the idea behind the living document theory. you just refuse to see it and your description of it is laughable.
moreover, there is no way you can say that giving land to private utility company to erect a power plant is public use. the public can’t access it without permission, it’s not common ground, etc. now, the power plant is most assuredly a public benefit, but not public use. and note, i am not arguing against it, just pointing out that under a strict construction of the terms, it’s not public use…
my biggest problem with the case is that it will open up the condemnation process to rampant abuse by monied special interest groups. just another way the little folks get screwed.
I agree completely with the last sentence. People can argue back and forth about a power plant and the like. This ruling is way too broad. It is a living Constitution at work. The words public use have been taken right out of the Constitution by five judges operating on your living Constitution theory.
I am a simple man who thinks those words were probably put in there for a reason. People can honestly argue about where the line of reason is drawn, but this ruling draws a line right through those words in the Fifth Amendment.
At least we still have free political speech. Oops, forgot. Our living Constitution scholars interpreted “Congress shall make no law” to mean Congress can make a law abridging freedom of speech.
So now the smartest developer who can get a majority of the City Council in his pocket can take property and develop away. I am so glad we have a Constitution to protect our rights (except, of course, when five judges disagree).
Well Art, I tried to argue (from the Jeffersonian point of view) that the first line of defense for homeowners is; to elect local officials who care about private property rights, to go to zoning hearings and other public fora and make their points known about such issues, and vote the bastards out if they don’t listen.
I saw that argument, but I disagree. People just don’t select the City Council members that way. These elections are typically non partisan and revolve around police protection and garbage collection.
The problem is that any given condemnation affects so few people, it typically doesn’t even rise to a local political issue. Elections are just not the right answer for this. Inalienable rights are the right answer. That just got taken away.
Well, I know it works here because I’ve seen it. Even just a few citizens initially have started revolts that ended up in (1) governmental bodies reversing decisions, or (2) putting the issue on a referendum. Maybe it’s because we are a smaller county, population-wise, because the next county over, there seems to be more apathy.
What you employ in the first post is the schtick of right-wing TV and radio jocks (Rush, Hannity & Ann “Man Hands” Coulter) **I went to law school for two years with Ann, and it never occurred to me to look at her hands. **
I’ve been surprised by the reaction to the decision, but mostly because the reaction has been such surprise and shock. Most states have already held that they and their municipalities can use their eminent domain powers for just about anything that occurs to them (or that they are paid off to use them for). Fortunately, here in Michigan, our Supreme Court recently dramatically restricted the use of eminent domain, in a unanimous decision. While I disagree with the decision, it really is about the same as being “shocked … shocked … to find that gambling is going on here …”
Well… my only response is that sometimes you agree with the definitions afforded by a fluid constitution, and sometimes you don’t. I don’t happen to agree with this interpretation. One of the reasons this country was started was to avoid this type of activity by the government. It’s one thing to take someone’s private land for the poublic good (such as an Interstate highway). It’s quite another to take it for some other private party’s gain… in the name of the “public good.”
Bad precedent, IMHO… but you gotta take the “bad” with the “good.” I’m sure there are about 1% of Americans that are really pleased by this ruling.
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Oh yeah… I hope you know I was just funnin’ with you on the troll comment. Sorry I didn’t post a " "
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