Eminent Domain
The appointment of John Roberts to the United States Supreme Court has raised eyebrows across the nation. The opinions of the political left may be seen in the aggressive distortions pushed by the National Abortion Rights Action League, (NARAL) which launched a $500,000 ad campaign linking Supreme Court nominee John Roberts (and all pro-life Americans for that matter) to abortion bombings and an "ideology that excuses violence."
The political right, meanwhile, has tended to take a more moderate view, saying that it doesn't matter to them whether Judge Roberts is conservative or liberal. What matters is that he follow the original intent of the Constitution. Perhaps they are sincere. Or perhaps they know that Judge Roberts is, in fact, conservative. But their claim deserves a closer examination.
As it happens, an interesting test case for the sincerity of those who talk of original intent has recently come up. We refer to the question of Eminent Domain. Do the several states and their political subdivisions have a Constitutional right to seize private property for any public use whatsoever? It seems that they do. See Kelo v. New London.
The recent decision by the United States Supreme Court in that case has raised the ire of people on both sides of the political divide. "A man's home is his castle." Or so it used to be.
But what is the original intent of the law? The Fifth Amendment to the Constitution of the United States says, among other things, "nor shall private property be taken for public use, without just compensation." That might seem to say all that needs to be said. But the Fifth Amendment refers to the Federal Government, only. It placed no restriction on the several states.
The plot thickens, however, when one considers the Fourteenth Amendment. It says, (in part) "nor shall any State deprive any person of life, liberty, or property, without due process of law."
But what is "due process of law?" It means that one can sue the states. But it does not guarantee the result of such a suit.
That does not, however, explain why in this particular case, the plaintiffs lost. To understand that, one must look at the conservative's favorite amendment, the Tenth. It says "The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people."
What the Supreme Court has decided is that there is nothing in the Constitution of the United States to prohibit the several states from seizing property belonging to private citizens for public uses, provided that it is done in accordance with due process of law. Therefore, according to the Tenth Amendment, it is up to the states to regulate themselves, the only Federal question being that it is done according to law.
The decision seems to be in perfect accord to the doctrine of original intent. If people do not like state laws they should change them through legislation at the state level.
So why are conservatives expressing outrage? They may, indeed see this as a liberal decision. But aren't they saying that it doesn't matter as long as the court follows original intent?
It is a real mystery.
The political right, meanwhile, has tended to take a more moderate view, saying that it doesn't matter to them whether Judge Roberts is conservative or liberal. What matters is that he follow the original intent of the Constitution. Perhaps they are sincere. Or perhaps they know that Judge Roberts is, in fact, conservative. But their claim deserves a closer examination.
As it happens, an interesting test case for the sincerity of those who talk of original intent has recently come up. We refer to the question of Eminent Domain. Do the several states and their political subdivisions have a Constitutional right to seize private property for any public use whatsoever? It seems that they do. See Kelo v. New London.
The recent decision by the United States Supreme Court in that case has raised the ire of people on both sides of the political divide. "A man's home is his castle." Or so it used to be.
But what is the original intent of the law? The Fifth Amendment to the Constitution of the United States says, among other things, "nor shall private property be taken for public use, without just compensation." That might seem to say all that needs to be said. But the Fifth Amendment refers to the Federal Government, only. It placed no restriction on the several states.
The plot thickens, however, when one considers the Fourteenth Amendment. It says, (in part) "nor shall any State deprive any person of life, liberty, or property, without due process of law."
But what is "due process of law?" It means that one can sue the states. But it does not guarantee the result of such a suit.
That does not, however, explain why in this particular case, the plaintiffs lost. To understand that, one must look at the conservative's favorite amendment, the Tenth. It says "The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people."
What the Supreme Court has decided is that there is nothing in the Constitution of the United States to prohibit the several states from seizing property belonging to private citizens for public uses, provided that it is done in accordance with due process of law. Therefore, according to the Tenth Amendment, it is up to the states to regulate themselves, the only Federal question being that it is done according to law.
The decision seems to be in perfect accord to the doctrine of original intent. If people do not like state laws they should change them through legislation at the state level.
So why are conservatives expressing outrage? They may, indeed see this as a liberal decision. But aren't they saying that it doesn't matter as long as the court follows original intent?
It is a real mystery.
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