<p>“Judicial review isn’t activism -”</p>
<p>Expansion of federal powers not explicitly granted in the Constitution through the courts sure is. In contrast, we know with certainly (the 5th Amendment) that the Founding Fathers did expect the taking of private property for public use - that’s explicitly what the 5th Amendment says.</p>
<p>…and how is a corporation seizing your house to put a luxury condo on your ancestrial land in an effort to make private profits “public use?”</p>
<p>You know what, forget it - it’s not worth debating this with someone who considers judicial activism to be hearing a case.</p>
<p>Maize&Blue22, I never said life was fair. It can be made fairer and I root for people that work to make it fairer.</p>
<p>M&B, besides being petulent, you’ve ducked the question when the issue got tough. Please, just what is the strictly constructed meaning of “public use”? Is condemning an “ancestral” trailer park for an airport OK? How about a railroad? Baseball stadium? Before you start calling judges names (“eew, he’s an <strong>activist</strong>!”) put the robe on yourself and read the minds of the framers of the constitution over the question of what things are a “public use” justifying the forced sale of ancestral trailer parks, and what aren’t? Strictly speaking.</p>
<p>Because I find that most people who accuse judges of “activism” are actually just using a buzzword to accuse judges of not deciding issues the way they want.</p>
<p>What we know with certainty was that the Founding Fathers assumed the government taking of private property was the norm. The first 10 Amendments to the Constitution, the Bill of Rights, were placed there to put limits on the federal government. They wouldn’t have placed the limit on takings (“just compensation”) unless they assumed it was within the powers of government (and likely within their experience) that it was and would be done.</p>
<p>It’s perfectly okay to believe that the Founders were out to lunch (hey, these were the guys with the three-fifth compromise, and Jefferson being the only President in U.S. history elected by the “slave vote”), but in this case it’s kind of hard to argue that they didn’t know what they intended.</p>
<p>(They probably hadn’t conceived of airports or ballparks. ;))</p>
<p>Donlan of Barron’s editorial wrote about the issue of judicial activism recently and noted exactly what Kluge says above. </p>
<p>Of course, the type of activism we’ve seen is changing and will shortly be headed back in the right direction… depending upon your point of view, of course.</p>
<p>Public use is anything that benefits the overall community. If putting condos on a trailer park will improve the economics of the city and the sellers are fairly paid–I say fine.</p>
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An unprecedented expansion of power to the the Federal judiciary? Hardly. That distinction belongs to the 14th Amendment, which enjoined the states from “enforcing any law which shall abridge any privileges or immunities of citizens of the United States.” Federal courts have been hearing intra-state eminent domain cases since 1865.</p>
<p>Federal jurisdiction in hearing the case was never the issue…what was at issue was whether or not Barron’s statement above is true
The dissenters in the Kelo case argue that that is too loose a standard, and puts all private property at risk at the whim of politicians (btw, wasn’t the governor of CT just convicted for shady deals with real estate developers?) So, if Donovan McNabb threatens to leave the Philadelphia Eagles unless he gets to buy my house, the government should be able to force me to sell? O’Connor’s dissent is linked below. It’s an easy read, and makes clear that this was an important case, not a power grab.</p>
<p><a href=“http://straylight.law.cornell.edu/supct/html/04-108.ZD.html[/url]”>http://straylight.law.cornell.edu/supct/html/04-108.ZD.html</a></p>
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His response to an audience question following his speech at the Wilson Center last March. You should really read his speech, transcribed here: <a href=“pexels-photo-6121962.jpeg – Three Bad Fingers”>pexels-photo-6121962.jpeg – Three Bad Fingers; It’s kind of an odd blog, but it’s the only transcription I’ve seen (you can watch him deliver the speech on the C-Span site, but it’s an hour long…much quicker to just read it.)</p>
<p>You may not agree with him, but it’s a useful trip inside the way he thinks.</p>
<p>Barrons, are you kidding? We should put people out of their trailer parks homes to build expensive condos because the extra taxes would help the community or condos would look better? Using that stardard, most houses in California need to go.</p>
<p>Fairly paid? Where would the market value of the trailer get most people? Certainly not a home in their present, gentrifying communities.</p>
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<p>No, I use activism as a term when judges “find” things in the constitution that are clearly not in there or even intended to be there. </p>
<p>Taking away states rights in an effort to protect a mystical “rgith to privacy” (abortion, among others) is an activist decision.</p>
<p>Ruling to allow affirmative action (in <em>direct</em> violation of the wording and intent of the equal protection clause) is an activist decision.</p>
<p>(Not federal, but a good example, nonetheless) - a judge finding a guarantee to gay marriage in a 300 year old state constitution penned by John Adams.</p>
<p>This stuff just isn’t in there - if Congress wants to add it fine, but I just have a problem with people legislating it from the bench.</p>
<p>Obviously, if libertarian ideologues took over the court tomorrow and ruled all eminent domain unconstitutional - that would be activism and just as wrong etc.</p>
<p>I’m all for activist judges allowing affirmative action after looking at the history of this country.</p>
<p>I’m fine with gay marriage too.</p>
<p>Interesting I just did a search of the Federalist Papers and found no specific definition of public use. I think common sense would dictate, however, that it was meant for building public roads and essential military bases, etc. The fact that the current definition came about around one-hundred years ago makes me wonder whether the opinion may have been written with greasy palms considering the historical context … I think we can take heart, though. There was a poll taken yesterday indicating 94% were opposed to the effect of the ruling. That implies no partisanship at all. If it can be kept in the forefront of the news, perhaps democracy will allow for the passage of laws in the states that dont already have them prohibiting this type of thing. Also, to the person who has no problem with it, may your home be the first to be seized by a bigger fish for the greater good.</p>
<p>You missed the boat…</p>
<p>Like Scalia implies in that article - that’s great you agree with those causes, but it’s irrelevant.</p>
<p>What is relevant is who decides (I think congress and the people; democracy should make the laws - not judges with lifetime appointments), and I’m not willing to relegate the constitution to TP in order to get these causes.</p>
<p>If you’re willing to trash the constitution like that think about how using the exact same techniques you need to get, say, affirmative action would let judges run rampant over your rights.</p>
<p>As right’s come through the living constitution, rights can be taken away! If the text is meaningless and judges have decided in direct violation of it (aa), than what’s to stop them from ruling in direct violation of it in a way you don’t perceive as socially healthy?</p>
<p>M&B - I get it. You don’t like affirmative action. You don’t like abortion. You don’t think that the Constitution grants individuals a “right to privacy” vis a vis the state. The problem is that the Constitution was written hundreds of years ago, when a lot of things which impact our day to day life didn’t even exist yet. Can internet spam be regulated? What’s the Constitutional take on jets flying over your property at 30,000 feet? You own that airspace, you know. When the Constitution was written people could legally own other people. I’m not cool with that. And the Constitution is poorly written in parts. (Seriously, anyone who says the second amendment can be correctly interpreted by simple reference to its words is nuts. A kid who wrote like that on his SAT writing exam had better make plans to go to a JC.)
This thread is, to me, a good primer on Constitutional analysis. People who don’t like the outcome find support in their interpretaion of the document, and suggest dark deeds underlie the long line of court decisions against that interpretation. Any judge who disagrees with your opinion is “activist.” Any judge who agrees with my opinion is a “strict constructionist.” I’m not real comfortable with this decision, but there’s nothing to be gained by arguing which side is “activist” and which is “constructionist.” All of those labels are B.S. Scalia is as “activist” as anyone else - when it’s his ox that’s being gored (and you can take that any way you want…)</p>
<p>Actually Scalia consistently rules with regard to original intent - regardless of what side of the political spectrum his decisions fall on.</p>
<p>As for airspace and the internet, you’re right - the constitution says nothing about them, ergo it’s up to congress and the states to legislate what should be done in regard to them, and if we feel so strongly about jets or internet spam that we want to be forever protected we should amend the constitution. What’s dangerous is when they start making law from the bench. Unless you want to be governed by King Rehnquest I.</p>
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<p>To use my above example, anyone who can read can see that something like affirmative action directly violates the constitution. Anyone can see there was no guarantee to gay marriage. It’s not like these are tough decisions. What scares me is when they directly disregard the text because they think they’re doing society a favor (read O’Conner on Affirmative Action - for example).</p>
<p>We live in a Democracy, and I’m proud of that. Are you really ready to surrender the right to be governed by the majority? Do you really want to haev to run every law by the court to see if they are acceptable (not constitutional, but acceptable)? Do you really not see the difference between a court deciding if a law violates a small list of protections and a court deciding if a law is good for society?</p>
<p>With regard to the 2nd Amendment, the following quotes are completely in accord with Scalia, or any other honest jurist. The words of the Constitution say what they meant at the time they were written. To the extent that the context has changed due to circumstance or technology, our system allows us to alter our Constitution and other laws to fit the new situation. To simply pretend that they mean something else is, as Dershowitz says, “courting disaster by encouraging others to use the same means to eliminate portions of the Constitution they don’t like.” Then we have no democratically agreed-upon law, which is what Scalia consistently points out. We then end up with nine unelected people in black robes telling us what we must do. Like in Iran.</p>
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It’s worth noting that Tribe was inundated with hate mail from angry “liberals” for committing this apostasy several years ago.
<a href=“http://www.outdoorsbest.com/kates061404/[/url]”>http://www.outdoorsbest.com/kates061404/</a></p>
<p>Well put, Driver.</p>
<p>I think that’s the crux of my argument. If you can disregard the second amendment, why not the first? I’ve never owned, fired, or otherwise operated a gun in my life, but if the text means whatever the justices say it does, and it is the ultimate law of the land, what recourse do we have?</p>
<p>Likewise, if equal protection only applies to certain races - why can’t other amendments or provisions only apply to certain races?</p>
<p>Where in the constitution does it state gay marriage is illegal?</p>
<p>Nowhere, hence if states want to allow it it is FINE (not likely as shown by last years elections - but that’s niether here nor there).</p>
<p>What’s not fine is if they “read it” into the constitution as it’s currently written as a guarantee like many, many people would have them do. EG if tomorrow they decide (as some state courts have found in similar phrasing in their constitutions) that gay marriage is guaranteed by the constitution - that would be bad. </p>
<p>It’s niether outlawed nor guaranteed by the constitution. Just like abortion is niether outlawed nor guaranteed by the constitution (therefore, democracy should run its course and we should make laws on the issues). We should not be TOLD what our laws need to be from the bench on issues which are clearly not constitutional.</p>
<p>Likewise, when issues are clearly unconstitutional (CA’s gun laws, affirmative action) - the court should step up and declare them as such instead of just looking past the constitution in order to do what they feel is more beneficial to society. It isn’t up to them to make that decision, and it’s truly scary how many of you would give them that power!</p>