Thursday, June 23, 2005

Thomas for Chief

The majority in Kelo suggests that courts should largely defer to the legislature in Takings cases with respect to whether the "use" in question constitutes a "public use." In other words, we can all sleep well at night with the knowledge that our benevolent, and unquestionably omnipotent, legislative bodies will carefully police themselves and confine their actions to legitimate matters in both subject and scope. Right. Does anyone actually believe this garbage? Does the court believe it? Perhaps JP and his gang should all walk over the Library of Congress and peruse ANY volume of the US code. The truth of the matter is, that since Carolene Products, the left/center members of the court have allowed lawmakers to do as they please vis-a-vis private property rights. And like in Raich, Justice Thomas nails it again.

"Even under the 'public purpose' interpretation..., it is most implausible that the Framers intended to defer to legislatures as to what satisfies the Public Use Clause, uniquely among all the express provisions of the Bill of Rights. We would not defer to a legislature's determination of the various circumstances that establish, for example, when a search of a home would be reasonable..."
Furthermore, as O'Connor and Thomas aptly stated, this ruling is certain to disproportionately harm the poor and the weak. At the same time, Walmart and well-connected big-business is given carte blanche to set up shop wherever they please. Why negotiate with the property owner when you can just take what you want?

UPDATE: I share Randy Barnett's praise for Thomas' dissent.

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