High court OKs personal property seizures

DavidEBernstein at aol.com DavidEBernstein at aol.com
Thu Jun 23 09:05:54 PDT 2005


"Accordingly, when this Court began applying the Fifth Amendment to the 
States at the close of the 19th century, it embraced the broader and more natural 
interpretation of public use as 'public purpose.' See, e.g., Fallbrook 
Irrigation Dist. v. Bradley, 164 U.S. 112, 158—164 (1896)."

The Court did not begin applying the Fifth Amendment to the states for 
another 50 years or so.  Rather, as the Court made clear in Fallbrook, it was 
directly applying the 14th Amendment's due process clause to the states, just as it 
did in Lochner, Smyth v. Ames, etc.--Justice Peckham explicitly states that 
the Fifth Amendment applies only to the Federal Government, but that the due 
process clause still bans takings not for "public use."  The significance is 
two-fold: (1) Stevens would be too embarassed to rely on Lochnerian precedent if 
he would acknowledge that that's what he's doing; and (2) Given that the 
Fallbrook Court was applying the 14th Amendment's due process clause, and not 
"incorporating" the Fifth Amendment, the Court, not surprisingly, was highly 
influenced by state, esp. California interpretations of due process requirements, and 
paid no attention to the meaning of the Fifth Amendment.

Professor David E. Bernstein
George Mason University School of Law
blog: http://volokh.com/index.htm?bloggers=DavidB
My latest book, You Can't Say That!
The Growing Threat to Civil Liberties
from Antidiscrimination Laws, has just
been published
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