Monday, July 25, 2005


State's rights or not?

One of my mythical readers questioned whether I could fairly call the Majority Opinion a good example of strengthening States' rights. After all, as D.H. correctly points out, property rights are basic and this is certainly a Constitutional issue.

My argument would be that the Constitution is appropriately vague about what constitutes "public use," so that it is well and appropriately left to the states to define that term severally. In the great political laboratory that is our states, each state could come up with its chosen definition in the hopes that the states naturally gravitate towards the best.

It is understandable that one would be anxious about such a fundamental right being treated so variably. A reasonable solution to this problem may have been furnished by a letter to the New York Times I read some years back. Simply put appropriate billboards on the highways:

"Warning: You are now entering Connecticut, the Constitution State. Public use is defined more broadly than in many neighboring states."

As always, thanks for reading,

Just because something is "fundamental" doesn't mean it's federal. Rather, it's a federal question if the Constitution says it is. It's important to remember that for about 100 years after the Bill of Rights was drafted, it wasn't understood to apply to the States at all; it limited the federal government's ability to interfere with what States did. Today, most provisions of the Bill of Rights are understood to be "incorporated" to apply to the States in favor of its citizens; but they were not drafted to work as such, so difficulties are expected in properly translating restrictions on the federal govt in favor of States into restrictions on States in favor of their citizens.

If SCOTUS was legistlating from the bench, it would have insisted on a definition of "public use." Instead, it left it open to the States themselves to decide what is and isn't a public use. All the proposed legislation that will more precisely define "public use" is NOT going to counteract the Supreme Court decision; it's precisely what the majority expects to happen: have elected officials define the term, so that if public opinion changes, those bozos can be voted out of office. Consider in the alternative what the recourse would be if SCOTUS had gotten it wrong.... Constitutional amendment, a much more difficult process than drafting simple legislation.
One modern test looks at whether it would be a mess to let every state legislate differently. For example, it's much better to have federal (than state) legislation specifying what manufacturers must warrantee in a product, since products tend to be sold everywhere.

In this case, clearly it is NOT a mess for every state to have its own standards of "public use", because most properties resid in only one state.

But it remains true that making this a state issue is simply an invitation for bribery and fraud.
- precision blogger
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