INCITE
Incite -- (v) 1: give an incentive; 2: provoke or stir up; "incite a riot"; 3: urge on; cause to act
Monday, June 27, 2005

 
Kelo, Again
Written by: Answerman

Goe has made the following argument regarding the recent US Supreme Court decision in Kelo:

1. The 14th amendment prevents the states from abridging the "privileges" of US Citizens.

2. The 10th amendment reserves all rights not enumerated as federal government powers to the states, or to the people.

3. The Takings Clause grants the federal government the power to take land for public use. Because it does not mention private use, a private use taking is reserved for the states, or to the people, under the 10th Amendment.

But then what? Goe can't close the circle and prove Kelo wrongheaded, because in fact, his argument against it is wrongheaded:

1. It is true that the Takings Clause has nothing to do with private use takings, but the 10th Amendment doesn't tell us anything about these either, because it talks about the reservation of rights to the states, OR to the people; it doesn't differentiate between what the states get and what the people get. So that has to play out in the state legislative process, which ss what I have been advocating. The 10th Amendment tells us only that the federal government can't take for private use; its reservation clause does not tell us whether the states can, or whether the people's rights prevent it.

2. Goe would at this point turn to the 14th amendment. But notice his leap of logic. According to Goe, "no state may abridge privileges of US citizens" means "no state may do anything that the federal government may not do." Yet this is obviously a misinterpretation for numerous reasons: (1) textual -- if the drafters of the amendment wanted to say that, they would have; (2) legsilative history -- the drafters of the amendment stated -- in Congressional testimony from the late 1860s that Goe can read if he chooses to -- that they did not intend with the "privileges and immunities" language to extend the Bill of Rights to the states, but rather intended to keep states from passing laws that would undercut the new FEDERAL privileges of black voters; and (3) case law -- for about 100 years, until the liberal Warren Court that Goe no doubt despises, the US Supreme Court held that this was the drafters' intent, and that the Bill of Rights protections on which Goe relies in his argument did NOT extend to the states (again, if Goe wants to read these cases, he can).

3. If the "privileges and immunities" language prevents states from abridging pre-existing privileges, then Goe must show us the source of a pre-existing privilege that makes the 14th amendment language apply. The 10th amendment won't work, because it doesn't give specific privileges to the people, but merely limits the federal government's powers by reserving all non-enumerated rights to the states OR the people. And the Takings Clause won't work, because it doesn't give citizens a privilege against state takings for private use. Again, the 14th amendment simply doesn't apply, because there is no c onstitutional (or legislative or other) "privilege" of a US citizen that is being abridged.

Private use takings are not permitted to the federal government; property rights in that regard are reserved to the states OR the people under the language of the 10th Amendment. The "or" means the Constitution has nothing to say as to the issue between individual states and their citizens, which means that private use takings by state and local governments are political issues to be determined by the voters of particular states, and not by federal judges.


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