Reading the "Public Use" clause

[DavidEBernstein at aol.com]

I'm never seen any reference of "A to B" Takings in the Calder v. Bull 
tradition that implies that "A" can equal the whole population, or even the whole 
taxpaying population, or any other group that can't reasonably construed as 
arbitrary victims of government policy, or  that such forbidden transfers would 
resemble in any way what used to be called poor relief.  If Sandy has citations 
to the contrary, I'd like to see them.  In short, the "A to B" ban was a ban 
on arbitrary government actions, in the traditional due process sense of 
"arbitrary."  And it's certainly arbitrary for the government to come to your home 
one day, tell you "we don't think you're using you're property to its fullest 
capacity, so we're going to give you some money and give your property to 
Pfizer."  Eminent domain for public use is arbitrary too, often, but it's 
recognized as a sovereign power of government.  

On a related note, for those of you who pooh-pooh the natural rights 
perspective of Calder v. Bull, imagine the government had come to Sandy many years ago 
and said, "we think you're underutilizing your brainpower in studying to be a 
constitutional scholar.  Our nation's development, and the welfare of the 
public, requires you (and a handful of others we've selected) to get biology 
Ph.D.s instead, and work on a cure for cancer.  And we'll guarantee you'll get 
paid more than you would as a law professor."  Anything wrong with that?  What?  
After all, it's what nation's once thought to be "Progressive" did routinely.

In a message dated 6/23/2005 9:55:16 PM Eastern Standard Time, 
SLevinson at law.utexas.edu writes:
1. Since the federal government is a government of limited powers, the
original understanding was that the government was not granted the power
to make private-to-private transfers. 

But, of course, the "welfare state" (which may or may not be derived
from the General Welfare Clause) operates, through taxation, to transfer
dollars from A to B.  So do proponents of the dissenting opinions
believe that the Court should go the next step(s) and declare
unconstitutional, say, such programs as medicaid (or any other similar
program)?  Or is it sufficient to say that the takings clause is about
"real" and not "personal" property?  But, of course, that's not what the
Fifth Amendment says.  One basis of the distinction is the special
emotional relationship that people may have to the family homestead,
which certainly seems to be present with one of the litigants.  But it
seems glaringly absent in several of the other litigants, who simply
viewed the land as a calculated investment.  If one can take their tax
dollars and give it as a subsidy to medicaid recipients, then why can't
the state take their land and give it to Pfizer (which may or may not be
desirable public policy)?


Professor David E. Bernstein
George Mason University
School of Law
http://mason.gmu.edu/~dbernste
-------------- next part --------------
An HTML attachment was scrubbed...
URL: http://lists.ucla.edu/cgi-bin/mailman/private/conlawprof/attachments/20050623/524c6f69/attachment.html