Posted 11:40 PM by extinct

A $50.00 Offer to the Blogosphere, Re: Kelo


It's official. You get $50, O blogosphere member. Especially one of y'all who felt understandable anguish over the hideous meaning of Kelo v. New London.

Just be first to convince me: at my email notanempire- at - aol.com (you know how to fix that) that the textual language of the 5th Amendment to the US Constitution and its Takings Clause RESTRICTS government takings only to situations of "public use."

It doesn't say that. It says ONLY that WHEN public use takings occur, there must be just compensation paid. That's it. No restrictions are made in that amendment on takings, except that due process must be applied in doing it. That's fair. Due process usually means notice, hearing and appeal.

I am sole and final judge of whether I am convinced. (Offer closes July 12, or otherwise at my discretion.) Convincing answer posted here as well as good ones, if I feel it. (Haven't been able to activate comments.)

I bring this up in part to rebuke all those tantrum-throwers who are stamping their feet in literalist fury saying "but the constitution says 'public use', not 'public purposes'. 'Use' means use!" Well perhaps, but if literal meanings matter, then "nor shall private property be taken for public use, without just compensation" simply literally means what it says -- that when a "public use" taking (as opposed to other takings like as punishment for a crime) occurs, there will be a fair price paid. It does NOT say anything about public takings being restricted to public use. One ought not hang one's hat on textual literalism when the whole power of the clause relies on going beyond textual literalism.

Actually, it appears that "public use" is simply a synonym for "where there is an exercise of eminent domain." Without saying what the limits are of that.

The ugly fact about this decision with its ugly implcation -- private property-wise and liberty-wise -- is that it was a good politically conservative decision. If one were to be a good textualist and rely on the language of the 5th Amendment, there is no restriction. Further, it is a good conservative decision in that it defers to local government on local issues.

Literalists: beware of what you want......


Kelo is a horrible rule, but alas, it makes literal constitutional sense, although that was not argued to my knowledge. One needs to construct a better historical argument as stare decisis is the only basis for resisting this expansion of government powers and not literalism of language.

Here, don't totally blame the Left or the corporate Right, alone or together. It's the Framers that done it.