You say goodbye, I say Kelo

D says:

There is a difference between saying something like what happened in Kelo is bad and saying its unconstitutional. Stevens and the majority stuck with precedent, really. You may have thought you knew what the Takings Clause meant because you read the 5th Amendment in civics class, but the Court has consistently let democratic bodies define what public use means. If you wanted the court to enshrine a meaning the Constitution (“public use means roads” or something like that), then you’d need to overturn some pretty strong precedent (See Midikiff v. Hawaii Housing Authority and Berman v. Parker). The liberal view of Constitutional law is fundamentally about respecting the decisions about other branches of government when it comes to matters of economics, because while the rights of some cannot be democratically protected (eg criminal rights), the rights of property owners certain ly can be. (See e.g., John Hart Ely, Democracy and Distrust). In Kelo, Stevens recognized that a locally accountable democratic body had authorized the taking. If you don’t like it, elect someone new. And thats what people all over the country did. But the Court rightfully rejected the opportunity to enshrine in the Constitution a bright line rule for how you define an ambiguous word like “public use”, rather than letting a democratic, publicly available body define it. Everyone agrees that you follow the constitution (most do, at least), but the question is WHO gets to decide what the constitution means. You may disagree with what the phrase “public use” means, but Stevens position is not implausible (economic development has public benefits, ergo it could be a public use). And if its not implausible, if the text will bear it, its rather inappropriate for a set of unelected judges to decide what the term means. Stevens, whether in Raich or Kelo or any of his other decisions, was consistent in respecting the democratically accountable opinions of other government bodies. Thats something to recognize and respect, even if you disagree with outcomes.Report