High court OKs personal property seizures

[Nelson Lund]

Without disputing anything that David says below, I wonder whether the 
more significant point might be that the Court has paid no attention to 
either the Fifth Amendment or the Fourteenth Amendment, and that it 
therefore doesn't much matter when it stopped pretending to apply the 
Fourteenth Amendment itself and began pretending to apply an 
"incorporated" portion of the Fifth Amendment.

Nelson Lund


DavidEBernstein at aol.com wrote:

> Stevens:
>  
> "Accordingly, when this Court began applying the Fifth Amendment 
> <http://straylight.law.cornell.edu/supct-cgi/get-const?amendmentv> 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 
> <http://straylight.law.cornell.edu/supct-cgi/get-us-cite?164+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
> http://mason.gmu.edu/~dbernste <http://mason.gmu.edu/%7Edbernste>
> blog: http://volokh.com/index.htm?bloggers=DavidB 
> <http://bernstein.blogspot.com/>
> ***********************************************
> 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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