High court OKs personal property seizures
mgraber at gvpt.umd.edu
Thu Jun 23 15:01:56 PDT 2005
I confess to being puzzled about what is so bad about the quality of the
legal reasonning in the majority.
1. I take it that if "public purpose" is constitutionally equivalent to
"public use" than the rest of the Stevens opinion follows, since a
reasonable person might believe that there was a public purpose (and
reasonable people might disagree).
2. The Thomas dissent concedes that Stevens correctly follows
one-hundred years of precedent and that many early 19th century cases
(and well as much 19th century legislative practice) supports the
public use/purpose equivalence. Assuming for argument's sake that
Thomas is right about 1787/1791, isn't it the case that this is a sound
doctrinalist opinion. Now maybe clear original intentions ought to
trump 100 years of doctrine, but it is not incompetent to think
3. If we are discussing competence, does anyone on this list seriously
believe the distinctions three justices tried to make between this case
and Berman/Midkuff (apologize for spelling) hold any water.
4. And while we are on the subject of competence, did anyone think to
remind Thomas that in writing a 14th Amendment opinion he ought to
discuss original meaning in 1868, not 1787. Consider three variations.
A. If Thomas believes that the constitution contains no surplus
language, how can he justify interpreting the due process clause of the
14th as incorporating other sections of the fifth amendment.
B. Maybe the above is a cheap shot, and Thomas thinks the privileges and
immunities clause does the work in question. Why is incorporation so
sacred. Thomas often relies on historians who reject incorporation. Is
incorporation the only major issue he thinks liberals get right. Is
public use (as opposed to just compensation) vital to freedom or
fundamental fairness? I doubt it.
C. What is the relevant of what early nineteenth century persons
thought about takings. Isn't the relevant evidence what Reconstruction
Republicans thought. If early state cases indicate sentiment on takings
in 1791 is as Thomas says, why don't late nineteenth century cases on
takings indicate sentiment in 1868.
Mark A. Graber
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