Vague Constitutional Text
Posted by Moonage on 20 Jul 2005 | Tagged as: The Legal Process
Randy Barnett of Volokh makes an observation in regards to a debate that occurred on National Review Online between Jonathon Adler and Scott Bullock. In discussing "public use", this exchange occurs:
I will not defend the justices in the Kelo majority on this score as they did not seek to rest their opinion on originalist grounds. Alas, there are others, including my friend Bullock, who seem willing to read their own ideological preferences into ambiguous constitutional text.
To which Randy comes to this conclusion:
When you stop think about it, this is really a pretty serious insult that goes to the intellectual integrity of those about whom it is said. In essence, it is asserting that, while I have the integrity to set my own preferences aside when reading the Constitution, my opponent does not.
I really don’t see it that way at all. I probably agree with Jonathon in the debate, although I haven’t read it. In the Kelo Decision, two interpretations of what happened have been bantered about in public. #1, the Justices interpreted "public use" to allow private corporations to take individual property for whatever reason they want. OR, as I took it, the Justices did not interpret "public use" in any way at all, and therefore the challenge in court was whether or not the town could take the property under "public use" or not. If you believe that the Justices intended to interpret "public use" as allowing corporate seizures, then you are "willing to read their own ideological preferences into ambiguous constitutional text." Why I say that is because the Justices gave no definition of "public use". "Public use" is still "public use". It has not changed. If, you believe as I do that the Justices simply took the case at face value of whether the town could invoke eminent domain or not, then since nothing changed, they "did not seek to rest their opinion on originalist grounds".
I really don’t see either alternative as being an insult.
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