United States Constitution, 1788 – 2005: Promise Unkept

Via Gay Orbit (dead link) and SCOTUSblog (updated link), 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 (updated link), 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 (updated link), Rehnquist, and Scalia, with Thomas.

Main Kelo V. New London page (updatedlink), via SCOTUSblog (updated link), 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.

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:
Removed because the two links/blogs referenced are dead.

(Reposted from original here.)

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  1. Pingback: Kelo and Raich: The Root of the Supreme Court Problem? | Accidental Verbosity