Originalism in practice: what we do today and did before
This is part two of a multi-part series exploring the meanings and interpretations of the United States Constitution. This part will focus on the application of originalism in today's world of jurisprudence.
Ken Kaighin
Issue date: 10/21/05 Section: Ed-Op
"The powers of the federal government are enumerated; it can only operate in certain cases; it has legislative powers on defined and limited objects, beyond which it cannot extend its jurisdiction." - James Madison
Many lawyers and legal aficionados have used the recent Kelo v. City of New London decision as an example of correct interpretation of the Constitution. They claim the taking of a private property is justified under the Public Use Clause, as Justice Kennedy explained, "where the purpose of a taking is economic development... the court must decide if the stated public purpose... is only incidental to the benefits that will be confined on private parties of a development plan." However, "public purpose" is not the same as "public use", the proper terminology of the Constitution, nor does it meet the specific intent of "public use".
In the past, the government has been permitted to use Eminent Domain to confiscate property, with just compensation, in the name of a project that could be directly used by the general public, namely roads, parks, dams, etc.
In every decision to make concerning the Takings Clause or Public Use Clause, the courts should be determining solely whether the taking is for the use by the public, not to the benefit of the public. Justice Thomas rendered the argument as such in his dissent of the Kelo decision, noting that nearly anything could serve as being a "purpose" for the public.
Some people, such as lawyer Adam Bonin of Philadelphia, have argued the power of Eminent Domain, in conjunction with private development plans, has been used successfully by local governments to correct problems of blight and unsafe structures. However, there is a difference in the motives of the use of the takings. The takings in cases of condemned buildings are not intended for "public use", but to protect the "general welfare" from unsafe structures. It is the protection of the public from condemned structures that validates these takings, not the implied economic benefits to either the city or the private developers.
Many lawyers and legal aficionados have used the recent Kelo v. City of New London decision as an example of correct interpretation of the Constitution. They claim the taking of a private property is justified under the Public Use Clause, as Justice Kennedy explained, "where the purpose of a taking is economic development... the court must decide if the stated public purpose... is only incidental to the benefits that will be confined on private parties of a development plan." However, "public purpose" is not the same as "public use", the proper terminology of the Constitution, nor does it meet the specific intent of "public use".
In the past, the government has been permitted to use Eminent Domain to confiscate property, with just compensation, in the name of a project that could be directly used by the general public, namely roads, parks, dams, etc.
In every decision to make concerning the Takings Clause or Public Use Clause, the courts should be determining solely whether the taking is for the use by the public, not to the benefit of the public. Justice Thomas rendered the argument as such in his dissent of the Kelo decision, noting that nearly anything could serve as being a "purpose" for the public.
Some people, such as lawyer Adam Bonin of Philadelphia, have argued the power of Eminent Domain, in conjunction with private development plans, has been used successfully by local governments to correct problems of blight and unsafe structures. However, there is a difference in the motives of the use of the takings. The takings in cases of condemned buildings are not intended for "public use", but to protect the "general welfare" from unsafe structures. It is the protection of the public from condemned structures that validates these takings, not the implied economic benefits to either the city or the private developers.
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