Saturday, June 24, 2017
consitution in exile movement:
In my view, it would be desirable for us to take a fresh look at our regulatory takings jurisprudence, to see whether it can be grounded in the original public meaning of the Takings Clause of the Fifth Amendment or the Privileges or Immunities Clause of the Fourteenth Amendment. See generally Rappaport, Originalism and Regulatory Takings: Why the Fifth Amendment May Not Protect Against Regulatory Takings, but the Fourteenth Amendment May, 45 San Diego L. Rev. 729 (2008) (describing the debate among scholars over those questions).
This is Thomas dissenting in Murr, a 5-3 takings case decided this week. Guessing, without knowing, that Thomas could pick up Gorsuch's vote, or vice versa, we could see a resurgence of the P + I clause during the Trump administration.
https://www.washingtonpost.com/news/volokh-conspiracy/wp/2017/06/23/should-regulatory-takings-doctrine-be-reconsidered-from-the-ground-up/?utm_term=.223a35c348bc
see also https://www.washingtonpost.com/news/volokh-conspiracy/wp/2017/06/23/a-loss-for-property-rights-in-murr-v-wisconsin/?utm_term=.554c5842d319
In my view, it would be desirable for us to take a fresh look at our regulatory takings jurisprudence, to see whether it can be grounded in the original public meaning of the Takings Clause of the Fifth Amendment or the Privileges or Immunities Clause of the Fourteenth Amendment. See generally Rappaport, Originalism and Regulatory Takings: Why the Fifth Amendment May Not Protect Against Regulatory Takings, but the Fourteenth Amendment May, 45 San Diego L. Rev. 729 (2008) (describing the debate among scholars over those questions).
This is Thomas dissenting in Murr, a 5-3 takings case decided this week. Guessing, without knowing, that Thomas could pick up Gorsuch's vote, or vice versa, we could see a resurgence of the P + I clause during the Trump administration.
https://www.washingtonpost.com/news/volokh-conspiracy/wp/2017/06/23/should-regulatory-takings-doctrine-be-reconsidered-from-the-ground-up/?utm_term=.223a35c348bc
see also https://www.washingtonpost.com/news/volokh-conspiracy/wp/2017/06/23/a-loss-for-property-rights-in-murr-v-wisconsin/?utm_term=.554c5842d319
Another way to go about this would be federal legislation to spell out what are some of the privileges and immunities of federal citizenship. Federal rights can be created without needing a constitutional amendment. The GOP, at least for now, holds both houses of Congress and we have a GOP president who claims to be a genuine movement conservative, if an eccentric one.
Alternatively, similar federal legislation could be grounded in the 5th Amendment' taking clause, puting limits on state condemnations and over-regulation. While Trump has been a fan of condemnation and eminent domain, he supports an anti-regulation agenda, so that might work for him.
In Murr, Kennedy sides with the liberals, and Gorsuch was not involved. I am not expecting Kennedy to retire any time soon. So there are not clearly 5 votes for a conservative position on property rights under the 5th Amendment takings clause. Kennedy is a swing vote, so a case could go either way 4-5 or 5-4. But add in federal legislation, and that could pick up at least a 5th vote, and maybe more.
I am not someone who can instigate fedral legislation. Given my total lack of clout, that would be tilting at windmills. I do have an upcoming meeting with staff for the GOP caucus in Indiana, about some legislation I'd like to see, That's more the area I think I can influence.
In Murr, Kennedy sides with the liberals, and Gorsuch was not involved. I am not expecting Kennedy to retire any time soon. So there are not clearly 5 votes for a conservative position on property rights under the 5th Amendment takings clause. Kennedy is a swing vote, so a case could go either way 4-5 or 5-4. But add in federal legislation, and that could pick up at least a 5th vote, and maybe more.
I am not someone who can instigate fedral legislation. Given my total lack of clout, that would be tilting at windmills. I do have an upcoming meeting with staff for the GOP caucus in Indiana, about some legislation I'd like to see, That's more the area I think I can influence.
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