Text 13766, 134 rader
Skriven 2005-06-26 17:14:11 av Alan Hess
     Kommentar till en text av Jeff Binkley
Ärende: Throwing out the 5th Amen
=================================
Whilst masticating on <Jun 26 05>, Jeff Binkley (1:226/600)
wrote to Alan Hess:

AH>>Can't state legislatures still pass laws to govern eminent 
AH>>domain, even after this ruling?  It's the only way to protect 
AH>>from unreasonable property taking now that the Supremes have done 
AH>>this.  I don't know - it sure looks like the Constitution spelled 
AH>>this issue out pretty clearly.

JB> Yes, that is the idea though.  The states can write laws in such 
JB> a way that it makes it easier to seize property for "public 
JB> good".  The concern is that in the liberal "feel good" socialist 
JB> leanings parts of the country, this may become more rampant than 
JB> the rest of the country.  If I lived in California, 
JB> Massachusettes or similar, I'd be concerned and consider moving.

The only thing I can guess is that the Justices who voted in favor of the New
London government felt that the federal government can't keep track of all
eminent domain situations all over the country, and that local elected
officials (who have to face the voters) know better than the Feds the
intricacies of each individual eminent domain case they pursue.  Obviously,
local governments can go too far, as I think is happening in New London, but
I'm sure the people preparing to run in the next election up there are already
prepared to use these proposed seizures against the incumbents that voted in
favor of them.

Michael Kinsley supports the ruling.  I don't agree, but here's his rationale I
found while reading the paper today.

*******

http://www.baltimoresun.com/news/opinion/bal-op.kinsley26jun26,1,7633457.story
?coll=bal-pe-opinion
A blow to right-wing judicial activism


By Michael Kinsley

June 26, 2005

THE "TAKINGS" clause of the Fifth Amendment is for conservatives what the
"equal protection" clause of the 14th is for liberals.

It wouldn't be fair to say that conservatives cherish property the way liberals
cherish equality. But it would be fair to say that the "takings" clause is the
conservative recipe for judicial activism - imposing their agenda through the
courts, rather than bothering with democracy - the way they say liberals have
misused the equal protection clause.

Of course, conservatives always claim to be against judicial activism. Liberals
have long suspected that this was a decoy and that once conservatives had
control of the federal courts, they would twist their mustaches, laugh
contemptuously, and reveal the various policies they planned to impose by
judicial fiat. Conservatives and liberals alike have been waiting for this
moment for a third of a century.

Each Supreme Court appointment by a Republican president seems to be "it." And
yet "it" hasn't happened. Roe vs. Wade - the high-water mark of liberal
judicial activism - still stands. And Thursday, the court said a surprise "no
thanks" to judicial activism, Republican-style.

The equal protection clause was a handy tool because just about anything the
government does or doesn't do can be framed as treating people unequally. (You
get pulled over for speeding and he doesn't; she gets a job and you don't; the
president calls on him at a press conference and not you; and so on.) When does
unequal treatment become unconstitutional? In the heyday of the Warren court,
almost anything on your wish list was at least worth a try.

Almost any government activity can also be seen as taking property "without
just compensation." The basic model of an unconstitutional "taking" would be if
the government threw you out of your house. But the godfather of the "taking"
movement, professor Richard Epstein of the University of Chicago Law School,
says: OK, what if you owned two houses and the government took one of them?
Still a "taking."

So suppose that the government took a half-interest in both houses? What's the
difference? Or what if the government enacts zoning or environmental
regulations that reduce the value of your house by half? Or gives someone a
government benefit that you don't get but, as a taxpayer, will have to pay for?

In law school, this is called "salami slicing," and it has been known to drive
people mad.

The case decided on Thursday, though, seemed promising to "taking" fans because
it wasn't about compensation. It was about the requirement that any government
taking must have a "public purpose." They can't take your house and give it to
the mayor's mistress, even if they pay you for it. But they can, apparently,
take your house and tear it down to make room for a development of trendy shops
and restaurants, a hotel, and so on. That was the plan in New London, Conn.,
until a few working-class spoilsports wouldn't budge.

The court ruled, 5-4, that yuppification is a valid public purpose. Or at least
it was reasonable for New London to promote yuppification. Who wouldn't like a
few more Starbucks in town?

When the local government showers a big development with money and favors, it's
usually not about sovereignty but about lack of sovereignty. Private developers
play jurisdictions off against one another, extracting concessions from all
that none would actually make a sovereign decision to give. A Supreme Court
decision that concessions of this sort were unconstitutional would have taken
them off the table and actually increased the effective sovereignty of elected
officials.

So the danger of conservative judicial activism has been averted for another
year. Stay tuned.

Michael Kinsley is opinion page editor and editorial page editor of the Los
Angeles Times, a Tribune Publishing newspaper.

Copyright + 2005, The Baltimore Sun


AH>>It may we be time for term limits for Supreme Court Justices.  
AH>>Not short ones, but maybe 25 years.  With people living longer, 
AH>>Justices are serving far longer terms than they did when the 
AH>>concept of serving for a liftime was conceived.

JB> Well the majority of the justices on this ruling were part of the 
JB> liberal caste of the court.  I am fine with getting rid of a 
JB> couple of them.  Ruth, John Paul and Stephen come to mind.  All 
JB> were on the majority side of this ruling.  

Limit them all.  

JB> It will be nice when Bush appoints Scalia as the new Chief 
JB> Justice.  Of course Clarence would be just as good.  It would be 
JB> fun to watch the hand waiving by the liberals over this.  Uncle 
JB> Tom would sink to new lows.

Are there any requirements to be Chief Justice, other than being appointed by
the President?  Tenure on the court, or anything?  *adh*

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