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Originally posted by bilmore
It really is. those are the words that have become the trigger words, but I don't think they really work well. What is at issue is the idea that it should be really, really hard for our government to take something away from me. Government should have to meet an incredibly high burden in order to do so, a burden that almost amounts to "we, the entire community, must absolutely have this in order to maintain our way of life, and there is no other way to do this without John's back yard." But, "need" and "benefit" fit into court opinions better than all of that.
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We didn't "need" to build railroads. We didn't "need" to build schools. You almost never "need" to build something new, in a new place, in order "to maintain our way of life." I understand that you guys would rather that the Constitution not permit governments to act by eminent domain in any but the most improbable case, but that is not and never has been what the constitution says. What we have here is an incipient case of conservative judicial activism.
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I think that this concept was historically "found" in the Constitution, and it is only more recent caselaw that has allowed the takings to expand in scope and ease.
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Shall we return to Justice Scalia's favorite place, the plain language of the Constitution? "No person shall be . . . deprived of life, liberty, or property, without due process of law, nor shall private property be taken for public use, without just compensation."
Perhaps you guys should propose an amendment so that it reads, "....and unless needed to maintain the American way of life."
