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Supreme Court Rules Cities May Seize Homes

 
 
joefromchicago
 
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Reply Tue 28 Jun, 2005 08:31 am
Thomas wrote:
If I am correctly informed -- and quite possibly I'm not -- both Scalia and Thomas are skeptical about the doctrine of substantive due process, and its idea that it empowers the federal government to enforce the natural rights of individuals against the states. Given that the fifth amendment only binds the federal government, nothing else entitles justice Thomas to apply his reading of the takings clause to the city of New London. Therefore, if Clarence Thomas does not believe in substantive due process, shouldn't his own standards should compel him to join the majority, and have the states sort out this takings thing by themselves? Or is this a stupid question?

No, it's not a stupid question. In fact, it's a rather interesting question.

Scalia and Thomas have, at times, been highly critical of the notion of substantive due process. But to hold that the Kelo case was not governed by the fifth amendment would not require rejecting substantive due process, it would require rejecting the incorporation of the fifth amendment through the fourteenth amendment -- those are two entirely different matters.

Now, for Scalia, that's not an issue. Although he may, deep in his heart, feel that incorporation is wrong, he also is a firm believer in stare decisis, so it is unlikely that he will sweep away more than a century's worth of precedents in order to return to the jurisprudence of Barron v. Baltimore. Thomas, in contrast, has little respect for precedent (as his dissent in Kelo showed). If Thomas believes that incorporation is wrong, then, he should have written in his dissent that the fifth amendment does not apply to the states -- and precedent be damned. That he did not take this approach may indicate that he is at least resigned to incorporation, or else that he is waiting for a more favorable moment in which to attack this doctrine.
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Thomas
 
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Reply Tue 28 Jun, 2005 12:19 pm
joefromchicago wrote:
Scalia and Thomas have, at times, been highly critical of the notion of substantive due process. But to hold that the Kelo case was not governed by the fifth amendment would not require rejecting substantive due process, it would require rejecting the incorporation of the fifth amendment through the fourteenth amendment -- those are two entirely different matters.

You're right, of course. I mixed up the two because they are both governed by the fourteenth amendment. In an earlier thread, I think we have discussed that the Supreme Court has handled the incorporation of the Bill of Rights throught the 14th amendment on an amendment-by-amendment basis. Have Scalia and Thomas expressed any principled objection against the doctrine of incorporation in general?
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fishin
 
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Reply Tue 28 Jun, 2005 04:10 pm
Apparently a NH resident has found a way to express his displearure with this decision.

I heard today that the NH man as sent a request to the Board of Zoning in Weare, NH with a proposal to have the home/property of Justice David Souter taken via ED and sold to this guy so that he can tear the house down and build a hotel which he would name the "Loss of Liberty Hotel".

According to his request this would increase the tax proceeds the town would collect and instead of putting bibles in rooms he'd put copies of Ayn Rand's "Atlas Shrugged". He also plans on having a museum in the lobby with copies of USSC decisions which he claims have resulted in the erosion of civil liberties in the US.

Of interest to Rand fans - the chairman of the Weare town Board of Zoing is one Mr. John Galt. Very Happy
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joefromchicago
 
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Reply Wed 29 Jun, 2005 08:10 am
Thomas wrote:
Have Scalia and Thomas expressed any principled objection against the doctrine of incorporation in general?

I'm fairly confident that Scalia does not object to incorporation. I'm not so confident about Thomas, so I did a quick Google search. I found this comment at this blog:
    Even Clarence Thomas does not dispute the doctrine of incorporation, though he is an advocate of selective incorporation (he argues that the establishment clause was not incorporated because it doesn't establish a specific right).
(There's also an interesting analysis there of the history of the fourteenth amendment). This is probably an accurate summary: if Thomas opposed incorporation, he would be so far outside the mainstream of constitutional practice that someone would have noticed it by now.
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joefromchicago
 
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Reply Wed 29 Jun, 2005 08:12 am
fishin' wrote:
Of interest to Rand fans - the chairman of the Weare town Board of Zoing is one Mr. John Galt. Very Happy

So that's who John Galt is. Makes one wonder what all the fuss was about.
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