I have to say, I don’t understand why Tony Scott, an outspoken conservative, would be criticizing judicial restraint and demanding more activism from the Supreme Court.
After all, restraint is exactly what happened in the Kelo decision he attacked in last week’s editorial – the Supremes simply said that the limitations on eminent domain were up to the states to decide, not the court.
And those “liberal activists” in the court didn’t “give” the government anything – the government had always had this power, they just dealt with it the only way they could without legislating from the bench.
The Constitution is vague on the subject of eminent domain. The Fifth Amendment says that property can only be seized for “public use,” without saying what constitutes “public.” A corporation owned by the government vs. a privately owned charity – which is more public? Is a mall public? How many houses have to share a driveway before it should become a town road?
Inexplicably, John Locke was silent on these issues. So when the Constitution leaves wiggle room, it’s up to states and towns to decide if they want to fill it or not. The horror!
For the record, I can’t wait for state legislatures – or Congress – to clarify exactly what are acceptable uses of eminent domain. The bar should be higher than it is, as side issues in Kelo v. New London have made clear. But blaming this on liberal activists abusing their power is unfounded.
-Cyrus Cole-LevesqueClass of 2005
