Reversing two recent Supreme Court decisions

Hello. First, I want to say, I’m not sure if this question belongs here, but I wasn’t sure where to post it, so if a Mod or Admin chooses to move it, well then, I guess I’m making you work for a living, aren’t I :smiley:

Anyway, on to the questions.

Although the final authority on the law and constitutionality, the Supreme Court has, from time to time, reversed itself. So, seeing that’s it possible:

  1. What kind of case do you suppose could be brought before the Supreme Court that would give the states, the final authority of the legality of drugs, and overturn the current interstate commerce BS.

  2. What kind of case do you suppose could be brought before the Supreme Court that would restore imminent domain back to what it’s supposed to be used for, taking private land for a needed public use, not taking land to build a shopping center, or hotel, or whatever?

What I’m asking for is to make up a case for either, or both, that could have a chance of overturning the current rulings. Thanks.

First the eminent domain question. The recent Connecticut case was consistent with the long line of US decisions under the “fair compensation for public takings” clause of the Fifth Amendment. Your complaint is not about the fair compensation part, it is about the “public purpose” part. That is greatly a political decision. Moreover, it is mostly a local political decision. If the competent local government, city, county or state, says that it is a taking for a public purpose then, except so far as the government might be restrained by concepts of substantive due process (a hot topic around here), then it is a public purpose and the only thing to argue about is the size of the “fair compensation. Given that the vast bulk of eminent domain cases are state cases you would be better advised to look to your state legislature to restrict the power of eminent domain rather than to the Federal Courts.

On the drug question, again the supremacy clause, the commerce clause and the general welfare clause would seem to trump the discussion unless a persuasive substantive due process argument can be concocted. Again, your remedy is in politics and the membership of Congress and the President rather than with the courts. The courts seldom pass on the wisdom of legislation. The pass on questions of authority.

The way I’ve always seen and heard it, the Drug Laws are basically all made using the inter-state commerce clauses of law. Furthermore, that these uses of those laws to stem the flow of drugs are ‘judicial activism’ (if you believe in that sort of stuff).

What I’d like to know is if we did have a conservative SC that was made up of constitutional literists (damnit, what is the word? thats not right. grrr) would they not overturn the use of the inter-state commerce clause as a crutch to allowing the drug laws when everyone knows that it’s a state issue.

I mean, if abortion is a States-rights issue (which I can concede if other issues are as well), should Drugs not be as well?

I did miserably in the law classes I did take, so I’m quite sure there’s a flaw in my logic, but if anyone wants to explain why i’m right/wrong above, I’d appreciate it. I just hated reading dozens of legal opinions.

Why do you hate democracy? Seriously, both the drug laws and local decisions on eminent domain are made by democratically-elected, representative government bodies. Sorry you don’t like the results, but courts should be extremely loathe to interfere with such decisions – particularly when there’s mountains of judicial precedent fully supporting the legislative powers in question.

Come on, it’s more complicated than that in the first case we’re discussing. Which democratically elected officials are you referring to-- state or federal? The medicinal marijuana case was a classic example of a battle between federal and state authrority. It’s entirely unclear that siding with the feds is more “democratic” than siding with the states.

Yeah, gah, well since it’s always been that way

I think there is very little question that the Interstate Commerce Clause has turned into a second Elastic Clause, providing justification for the Federal government to do anything its heart desires. It merely requires that some creative writer among the legislative staff of Congress or of a given Senator or Congressman come up with some remotely vague nexus under which the thing desired to be regulated in some way connects to interstate commerce. And the one point on which Congressional liberals and conservatives seem united is that Congress is entitled to exercise any power it feels inclined to arrogate to itself.

To be sure, many laws that the majority of members here feel to be appropriate can only be deemed valid under the Interstate Commerce Clause by such a stretch. Want to make sure that minorities are not discriminated against by private businesses offering their goods or services to the public? Absent a completely new take on the Fourteenth Amendment’s empowerment provisions, the only justification is to in some way show that the goods or services offered are in some way connected to interstate commerce. The infamous Depression Era case involving the man prosecuted for growing wheat for his own use illustrates the length to which the Courts will buy into such justifications.

Eminent domain, on the other hand, has bizarre roots. After the Norman Conquest, every square inch of land in England belonged to William the Bastard by right of conquest. Not merely that he ruled over it; he owned it. He granted the lands he became possessed of to his earls, barons, and knights who had fought for him, as fiefs. They held it in fee to him, agreeing to provide him with military service and/or money in lieu of it in exchange for his allowing them to hold it and leave it to their children.

This is the origin of the idea that people can “own” land. No one except Elizabeth II, Queen of Canada, owns any land in Anglo-America in the strict indefeasible sense. The rest of us, if we own land, hold it “in fee simple” which means that we obtained the right to hold and use that land as citizens on payment of taxes, until and unless the government decides that it needs it for some purpose.

Under the Fifth and Fourteenth Amendments, the United States and its constituent states are unable to take such land without “due process of law” and just compensation. Traditionally it has been held that such taking must be for a public purpose. Even zoning regulations must permit some beneficial use of the land to its owner, or be deemed a “taking” in effect and therefore require compensation, regardless of who continues to hold legal title to the land. If you own a clifftop piece of shore property from which people are accustomed to look out over the water, and the local government thinks that it would be a good idea to continue allowing people to do so, and forbids you to build a house on that land and erect a fence that keeps people from seeing you partying (and therefore keeps them from looking over the cliff, then they must either take the land from you by eminent domain and establish a park there, or pay you for keeping you from making use of your land.

But what constitutes a public purpose? Suppose you own a decrepit warehouse which you have boarded up and make effectively no use of. So long as you pay your taxes, it’s your property, right? What if someone wants to tear down your warehouse and neighboring properties, and build a new shopping center and subdivision there? It’s your privilege to decide whether to sell to him or not, as between you and him; he has no right to compel you to do so. What if you’re a slumlord who makes money renting substandard apartments to willing tenants who cannot afford anything better? The only right the city may have is to close down your slum entirely as unsafe … which leaves your low-income tenants homeless, hardly the desired result.

In both cases, your land can be taken by eminent domain. But the city is not interested in building a new sewer plant or a park on your land; what it wants is to see it used beneficially for economic development purposes. The new shopping center and subdivision, safe and affordable low-income housing in place of your slum; these are the sorts of things it wishes to promote. And while conceivably the city could turn your slum into a public housing project, it is in this case functioning not in a magisterial role, as a government, but in an entrepreneurial role, in competition with private business.

So there are in fact grounds which most non-libertarian citizens, liberal or conservative, would see as valid in which private property may be taken for what is ultimately a private purpose, where there is legitimate public benefit to be gained from the move.

The problem lies, as numerous pundits of all political stripes have pointed out, in the idea that there are no defined limits to such a power. Granted that the old abandoned warehouse and the slum are blights on the urban landscape, where do you draw the line? Can a city council largely elected from one political party decide that they want to take the home of the leader of the other party, offering the pretext that someone is going to make use of it in a way that they feel will better benefit the city? Why not? What’s the legal difference between that and taking the warehouse or the slum? Where do you draw the line, and why there?

The New London case opened a rather large can of worms, and it will be interesting to see the Supremes attempt to fence in those worms as they crawl across the landscape.

State legislatures are largely taking the Supremes off the hook on that.

As has been pointed out by nearly everyone, nothing in the Kelo case stops State legislatures from restricting local government use of emminent domain. The practice will continue, but with tighter controls.

There is no such part. The Fifth Amendment specifies “public use”, not “public purpose”. The Court engaged in a three-card monte shuffle to substitute the latter for the former in order to effectively abolish this limitation by amendment-from-the-bench.

For the same reason the founders of the American Constitutional Republic did – “democracy” not subordinated to the rule of law degenerates into the rule of mob.

Seldom does one see something encouraging about government these days, but credit where credit’s due.

First, two great posts.

Question for all: is there any way for the other two branches to “overturn” a Supreme Court decision? Or is the only recourse for the states to block it individually.

Also, didn’t Donald Trump, when he was building a casino in Atlantic City, take a homeowner to court because she was the only one who refused to sell? And didn’t this little old lady win, and he had to build around her? I’ve been trying to find it but haven’t been succesful.

That pretty much goes without saying. You’ll have to forgive me for keeping the discourse down around the level established by the OP.

Both, though you know how such conflicts get resolved under the Supremacy Clause . . .

Indisutably true. But so what?

Such conflicts exist at all levels of government – between city, county, state, and the feds. That’s just a fact of life, and the way we generally resolve it is that the bigger democracy trumps the smaller one. Hence, federal law on the demon weed beats state law on medicinal marijuana, to the suprise of absolutely nobody who’s been paying attention to the last century’s worth of Commerce Clause jurisprudence.

Emphasis added.

Really? Isn’t the purpose of the federal consitution to limit the power of the feds [in favor of the states]?

Has Justice O’Conner not be paying attention to the last century’s worth of CC jurisprudence? Damn, she should’ve resigned a long time ago! :slight_smile:

Nope. The purposes (note the plural) of the federal constitution are “to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity.” Perhaps you’re thinking of the Articles of Confederation?

If the decision was based on an interpretation of the law, they can change the law. If the decision was based on the Constitution, they can amend the Constitution.


Well, we did have a conservative Supreme Court that ruled on Raich in the first place, so I think you’ve got your answer.


That’s not what was being asked. Firstly, the poster couldn’t remember the term “textualist” and then confused that term with being equivalent to "conservative. But to answer the question, what would the outcome have been had the court been stacked with textualists… it’s hard to say. The two justices who subscribe to that philosophy split their decisions-- one voting for, one against.


No response about Sandra O’Conner? I’ll take it, then, that your statement was a throw-away line.

And I yours.
[Michael Palin]

This isn’t even an argument.

[/Michael Palin]