Thursday, August 04, 2005

War of the words over Kelo

Readers, yours truly has been doing battle with liberals via the comment board at the VC. The post is here, documenting several comments that intimate Originalists are being unprincipled in their criticisms of Kelo v. City of New London (the takings clause case, you know it). A few commenters say that the Takings Clause of the 5th Amendment doesn't prohibit taking for a non-public use. But we know that is hooey.
There is an argument that the Takings Cl of the 5th says "nor shall private property be taken for public use, without just compensation," instead of "nor shall private property be taken for private use, and only for public use w/out just compensation." Apparently the Framers left out the operative bold phrase. Writings of the Framers taken jointly and severally suggest that they would consider it a tyranny to allow such a "taking" b/c they left out the italicized bit above. I don't think this is drumming up an unenmerated right.

"I go further, and affirm that bills of rights, in the sense and in the extent in which they are contended for, are not only unnecessary in the proposed constitution, but would even be dangerous. They would contain various exceptions to powers which are not granted; and on this very account, would afford a colourable pretext to claim more than were granted. For why declare that things shall not be done which there is no power to do?"
-Alexander Hamilton, Federalist No. 84

"The Constitution is not an instrument for the Government to restrain the people, but an instrument for the people to restrain the Government."
-Patrick Henry

"When faced with a clash of constitutional principles and a line of cases wholly divorced from the text, history and structure of our founding document, we should not hesitate to resolve the tension in favor of the Constitution's original meaning."
-Thomas, J., dissenting (Kelo)

I get it, legal liberals, you are trying to catch textualists with their pants down. (And I should add that I could spout a much more plethoric list of catchy quotes from the Framers of our Constitution, but I'll err on the side of brevity.) Unlike privacy, contraceptives, internet pornography, and wire fraud we have a picture of what the Founders were trying to do with the last clause of Amend V.