Hi Oboe,
Sorry about the long delay in replying again. I've been working some insane hours of late, and to tell the truth, I'm getting to the point where I have difficulty thinking, remembering, and concentrating. I get the feeling it may be time for a vacation, but who knows when and if that'll happen. Anyway, enough of my griping.
Originally posted by oboe
Thank you Seagoon, that Scalia link was an interesting read. I especially agreed with his assessment of how wrongfully judges are being nominated nowadays - not on their merit as honest, good, and reasonable lawyers, but on their positions on key issues. The partisan strife this leads to is evident with the recent filibustering controversy.
I sincerely think Scalia is one of the best legal minds in America today, and while he is dismissed as a "conservative" who needs to be defeated as the next chief justice because he won't legislate social change from the bench and has a strict constructionist approach to the constitution, I believe he would make an excellent replacement for Rehnquist.
I think I differ with you in that I don't see this as a decision that benefits the "Common Good". I tend to agree with Justice O'Connor's assessment that it will instead ultimately benefit the well-heeled. I think "common good' is being used as a charade in this case.
It's worth reading most of the actual majority decision to see how pervasive this idea of the "greater good" and socialist/utilitarian principles really has influenced the interpretation of the "public use clause" (I've edited out irritating reference #s to prior cases - emphasis is mine):
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"HELD: The city’s proposed disposition of petitioners’ property qualifies as a “public use” within the meaning of the Takings Clause. ...
(a)Though the city could not take petitioners’ land simply to confer a private benefit on a particular private party, the takings at issue here would be executed pursuant to a carefully considered development plan, which was not adopted “to benefit a particular class of identifiable individuals,” ibid. Moreover, while the city is not planning to open the condemned land—at least not in its entirety—to use by the general public, this “Court long ago rejected any literal requirement that condemned property be put into use for the . . . public.”
Rather, it has embraced the broader and more natura interpretation of public use as “public purpose.” Without exception, the Court has defined that concept broadly, reflecting its longstanding policy of deference to legislative judgments as to what public needs justify the use of the takings (b) The city’s determination that the area at issue was sufficiently distressed to justify a program of economic rejuvenation is entitled to deference. The city has carefully formulated a development plan
that it believes will provide appreciable benefits to the community, including, but not limited to, new jobs and increased tax revenue. As with other exercises in urban planning and development, the city is trying to coordinate a variety of commercial, residential, and recreational land uses, with the hope that they will form a whole greater than the sum of its parts. To effectuate this plan, the city has invoked a state statute that specifically authorizes the use of eminent domain to promote economic development. Given the plan’s comprehensive character, the thorough deliberation that preceded its adoption, and the limited scope of this Court’s review in such cases, it is appropriate here, as it was in Berman, to resolve the challenges of the individual owners, not on a piecemeal basis, but rather in light of the entire plan.
Because that plan unquestionably serves a public purpose, the takings challenged here satisfy the Fifth Amendment.I'm interested in the Natural Laws you speak of. Can you spell them out here?
The following is a good synopsis of the idea of natural law given by Robert P. George, McCormick Professor of Jurisprudence at Princeton University.
"The concept of "natural law" is central to the Western tradition of thought about morality, politics, and law. Although the Western tradition is not united around a single theoretical account of natural law, its principal architects and leading spokesmen–from Aristotle and Thomas Aquinas to Abraham Lincoln and Martin Luther King–have shared a fundamental belief that humanly created "positive" law is morally good or bad–just or unjust–depending on its conformity to the standards of a "natural" (viz., moral) law that is no mere human creation. The natural law is, thus, a "higher" law, albeit a law that is in principle accessible to human reason and not dependent on (though entirely compatible with and, indeed, illumined by) divine revelation.1 St. Paul, for example, refers to a law "written on the heart" which informs the consciences even of the Gentiles who do not have the revealed law of Moses to guide them (Romans 2:14—15). Many centuries later, Thomas Jefferson appeals to "the law of nature and nature’s God" in justifying the American Revolution.
Most modern commentators agree that the Founders were firm believers in natural law and sought to craft a constitution that would conform to its requirements, as they understood them, and embody its basic principles for the design of a just political order. The framers of the Constitution sought to create institutions and procedures that would afford respect and protection to those basic rights ("natural rights") which people possess, not as privileges or opportunities granted by the state, but as principles of natural law which it is the moral duty of the state to respect and protect. Throughout the twentieth century, however, a lively debate has existed on the question whether the Constitution incorporates natural law in such a way as to make it a source of judicially enforceable, albeit unwritten, constitutional rights and other guarantees." Natural laws are thus universal absolutes that supersede and should guide humanly enacted civil (or "positive laws").
Modern jurisprudence, particularly since the 20th century has tended to reject the idea of Natural Law, or any objective basis for our own laws and has instead pursued a belief that positive law is all there is, and that all we are left with are entirely subjective decisions devoid of final moral character. One of the greatest exponents of this view was Supreme Court Justice, Oliver Wendell Holmes who held that law was ultimately simply the product of the human mind. He firmly believed that the Law should be practiced without reference to "morals" outside of legal ideas, and that ultimately laws should be analyzed only according to their
desired ends - this point is critical -
especially in understanding the recent SC decision.
For instance here is a quote from Holmes with direct bearing on this issue:
"I look forward to a time when the part played by history in the explanation of [legal] dogma shall be very small, and instead of ingenious research we shall spend our energy on a study of the ends sought to be attained and the reasons for desiring them. As a step toward that ideal it seems to me that every lawyer ought to seek an understanding of economics."You'll note in both Holmes and majority decision, any notion of external and inviolable "rights" (which by the grace of God, most of the members of this board still embrace) held by property owners is disregarded. These are viewed as illusory, the only interest is in the
ends sought to be attained and existing jurisprudence, thus economics to Holmes and to the present SC decision
was of paramount importance.Those who believe in natural law are instead focused on the
means. So in the statement:
"We want to economically rejuvenate a community by seizing private property and handing it over to private developers"
The Positive Law proponent focuses on the desired ends: "We want to economically rejuvenate a community"
while the Natural Law proponent focuses on the means to the ends:
"by seizing private property and handing it over to private developers"
Thus Souter (positive law) says "Economic Development desirable and in keeping with our broad interpretation of public use clause - APPROVED"
While Scalia (natural law) says
"Seizing Private Property and handing it over to private developers" a violation of both the natural law which forbids theft and the 5th ammendment which states that it may only be given for a truly public use, otherwise it is theft - DENIED"
One focuses on the god-given rights of individuals while the other focuses on the greater good to be achieved by the desired ends.
Personally I prefer looking at the means, so that when someone says, "Lets create housing for the poor..." (Good Ends) we don't forget to notice the end of the sentence "by giving them a portion of your home" (Bad means)
- SEAGOON
