६ फेब्रुवारी, २००६
"Justice Souter did his job and we should be proud of it, whether we agree with it or not.”
The attempt to take Justice Souter's house by eminent domain has failed, voted down by the townsfolk. Professor Bainbridge is sorry to hear this!
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This is disappointing. But let's move on...what about the other Justices who voted for the Kelo decision...don't they have homes?
I've said before that I'm very familiar with the New London area and, on the facts of this case, thought the equities favored Kelo and her neighbors. Having said that, the opinion was entirely within the mainstream of takings jurisprudence. Why is adhering to precedent and deferring to the legislature the right move when they want to ban contraception and abortion, but a sign that our country is going to hell when it results in this sort of a takings?
I say, good for the people of Weare, New Hampshire, for seeing this movement for what it was. The idea that a man from California would stand up for the sanctity of landowner's rights by flying to New Hampshire and attempting to talk the people there into taking the home of a Supreme Court Justice is ironic and absurd on any number of levels.
While I think taking his home would have almost been just desserts... it would have been goign over board, and in reality going after the wrong person.
Why not have a petition go around New London to have a general vote on the ballot to take the council members homes by eminent domain?
But more to this story, I think there is a general feeling that federal justices are not accountable for their decisions, and that there is a growing backlash to that end. While a lot of lawyer types seem to think lifetime appointments are set in stone and should never change... I think its something worth considering.
If we can pass the 17th amendment... we can certainly look at an amendment to change the terms of federal justices.
I guess we wait for the day when Justice Souter is less popular and then take his house; he having established that who possesses a house is not an individual right but rather a matter of democratic action. Maybe next year he'll vote against the Pledge of Allegiance...
While Kelo may have been in the mainstream of takings jurisdiction, was that where such should have been? I think that a lot of us would say no, and that the furor at the case is indicia that takings have moved to a place that is beyond what many, if not most, Americans think it should have.
I think that maybe part of it is that in many takings cases, the sides are not evenly matched. Most often, the party pushing for the takings is much better financed than those opposing such. So, no surprise, that the jurisprudence has moved possibly too far in that one direction.
Sippican - This is a basic Con Law I issue. Who is going to have the final word - the legislature, who is democratically elected and accountable, or the Court, who is not elected and unaccountable, but who is also free from political pressure? The Court has a long history of deferring to the legislature in takings cases, which are enormously fact-determinative.
If you wanted the court to break with at least 14 decades of precedent in takings law to rule in favor of Kelo, then I would REALLY think twice before you use the words activist, unaccountable, unelected, or activist in a negative way again. Those words are thrown around far too lightly, without any thought behind them.
Terry, it's simply dishonest to claim that Kelo didn't depart from prior takings jurisprudence insofar as it expanded the definition of "public use" to include private development that might be more economically efficient (whatever the hell that means) AKA what any two-bit developer can bribe a city council into approving.
Sippican - I'm sorry, Dred Scott is relevant HOW?
Rogera - I think what you're getting at is "substantive" due process. That's what the majority in Roe v. Wade used to justify its decision - the law banning abortions had procedural due process, but substantively, the state should not have the power to pass this law, so we strike it down. Substantive Due Process has gone in and out of fashion over the years; Justices like Scalia and Thomas claim that, because it isn't in the Constitution, it shouldn't exist at all. Then again, if you believe everything they say, they are two of the only people who know what the Founders REALLY meant when they wrote the Constitution . . . In the opinion of a lot of legal scholars, substantive due process has been the basis for a lot of good opinions and a lot of bad opinions over the years.
Shady character - the Supreme Court has been taking "public use" to mean "public purpose" for a LONG time. Oliver Wendell Holmes wrote quite a bit about how the distinction is meaningless.
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