Saturday, June 25, 2005
Takings, eminent domain and reading comprehension: There are times when I think that the law should never be left to lawyers.The Kelo ruling was one of those times. You don't need to have a law degree from an Ivy League school to know that using the government's power of eminent domain to take land from Joe to give it to Pfizer isn't a "public use."
If I could swing it, I'd get on the city council wherever Justice John Paul Stevens lives, find a big GOP campaign donor who wanted to build a bigger mansion on the property, and toss Stevens out on the street.
It's been said by some enlightened lawyers that the Kelo ruling wasn't the huge leap that it seemed to be to so many of us laymen. "Public use" had long ago gave way to "public purpose." Municipalities for years could use their eminent domain power to transfer blighted inner city areas to developers who would then build new condo projects, restaurants, hotels and sports facilities. San Diego's own Petco Park and the surrounding East Village area is prime example of this use of eminent domain.
The difference in Kelo was that the area in question wasn't blighted and run down -- it was simply a middle-class neighborhood.
I'm not a lawyer, but I can read. A high school education should be enough for someone with some sense to be able to determine what subjects the Constitution says and what subjects it is silent on. Instead, too many jurists are like clever teenagers -- they decide how they'd like things to be, and then play word games to twist the law to the "proper" result.
If you want to change the Constitution -- whether its to ban flag-burning or legalizing abortion-on-demand -- then change the Constitution. Where the Constitution is silent, the Constitution is silent -- let the legislative and executive branches hammer it out.
Where the Constitution proscribes government power, the Court should turn back attempts to arrogate that power to the legislative or executive branches.
Using the interpretive framework that I like to call "basic reading comprehension" (BRC) when it comes to reading the Constitution, what are we to make of National Review's Matthew Franck?
I'll end where I would have both begun and ended, had I written for the Court in this case. I would have held against the property owners on grounds that the takings clause of the Fifth Amendment has no application to the actions of state and local governments. It is interesting that Thomas, so interested in the original understanding, has nothing to say on the great fraud of the "incorporation" of the Bill of Rights by the Fourteenth Amendment.
Let us review. The relevent portion of the Fourteenth Amendment:
No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.
Applying BRC to this sentence we find that Franck appears qualified for the Supreme Court. He has determined that he plain language of the Fourteenth Amendment, duly ratified by Congress and the states, is a "great fraud."
A layman reads this portion of the Fourteenth Amendment and hones in on: "No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States." The laymen then looks to the Fifth Amendment and sees that one of the "privileges" given to "citizens of the United States" is "nor shall private property be taken for public use, without just compensation."
Yet to Franck, this is a "great fraud." Why are those words in the Fourteenth Amendment at all, if they don't say what they mean? Why does Franck feel justified to simply toss whichever amendments he doesn't like?
At a debate/discussion some time ago, Justice Antonin Scalia and Justice Stephen Breyer noted that most of the cases the Court deals with aren't ones that make headlines because they deal with minutae in federal regulations or treaties. The Supreme Court should stick to dealing with those types of cases and leave the ones dealing with Constitutional rights to laymen armed with a command of BRC.
Like I said before, I'm not a lawyer, but I can read -- that should be enough.