But, like those supposedly scientific and reliable exit polls on Election Day, the accuracy of those early descriptions is now being questioned somewhat -- examples here and here. When I'm able to review the transcripts myself, I will blog accordingly.
On a side issue, what an utterly silly post from Volokh Conspirator Orin Kerr:
The text of the [Takings] clause says that if private property is taken for public use, then just compensation must be paid. The Constitutional text doesn't address takings for private use at all. Not only would such a taking seem to be allowed by default, but the Constitutional text doesn't even seem to require the government to pay just compensation for it. The text doesn't say, "Private property shall not be taken for private use, nor shall private property be taken for public use without just compensation." It only says "Nor shall private property be taken for public use, without just compensation." Obviously there are good policy reasons why we might not want the Court to read the text this way, and there are also reasons why someone might or might not be a textualist. Still, if you're a textualist it seems that you're kinda stuck with that reading.
Long-time readers of my blog know that I am indeed a textualist (or, as I label myself, a "constitutional literalist"), which I define roughly as "the intellectually honest cousin of strict constructionism." Examples here and here. Unless absolutely necessary, yes the Constitution should be assumed to "mean what it says and say what it means." But just as the Constitution is not required to be a suicide pact, neither is it required to be nonsensical. I guess even among law professors the old saying is true: Common sense is not so common.
Stuart Buck has a good smackdown of Kerr's smarminess:
This argument is the equivalent of the following: "The Fifth Amendment prohibits the government from putting someone in jeopardy of 'life or limb' twice 'for the same offense.' Granted, this prohibits the government from prosecuting someone twice for the same offense, but it doesn't prohibit the government from prosecuting people for no reason at all. Thus, if you're a textualist, you have to admit that the 5th Amendment allows the government to prosecute innocent people willy-nilly."
I love it. A related saying is that just because Article I only refers to "Armies" and "a Navy" doesn't mean the Air Force is unconstitutional. There's honest interpretational debate, and then there's just being snide. Why should I waste time on the latter? Other (not utterly silly) responses to Kerr at Crime & Federalism, The Right Coast and Freespace. Right Coast sums it up best:
A private use taking was simply the kind of thing that the government was not allowed to do.
In other words, utterly silly. Had anyone suggested to the Framers that it might be constitutional to seize Monticello from Thomas Jefferson to give it to George Washington just because Washington might pay more taxes on it, they would have used far harsher language than "utterly silly."
It's posts like Kerr's, among other reasons, that made me give up on VC long ago. To an unfortunately large extent it's just a collection of bored semi-scholars and intellectual narcissists preening themselves in front of the blogospheric mirror. Reality, meanwhile, keeps chugging along.
Again, I'll update on Kelo and Lingle as appropriate.
UPDATE: Legal Affairs has an excellent exchange between two law professors on either side of the debate. The always-good-for-laypeople FindLaw Writ has a good piece suggesting a compromise rule.
Related Posts:
Will the Supreme Court Extend the Poletown Reversal?
From the Archives: The Other Supreme Court Property Case
No comments:
Post a Comment