Hmmm... Spock must have voted for a taking...
Posted on 06/25/2005 8:17:22 AM PDT by snowsislander
Thomas cites the equal protection clause in his dissent in this case as the justification for why the 5th ammendment applies to a state action. It is only through the 14th ammendment that this is a US SC issue at all.
Yes, in particular Justice Thomas cites the 1833 decision Barron v Mayor and City Council of Baltimore which was decided the other way, that the Fifth Amendment was not applicable to the states, only to the Federal government:
MARSHALL, C.J., Opinion of the Court
SUPREME COURT OF THE UNITED STATES
32 U.S. 243 Barron v. Mayor & City Council of Baltimore
ON WRIT OF ERROR TO THE COURT OF APPEALS FOR THE WESTERN SHORE OF THE STATE OF MARYLAND
Argued: --- Decided:
Mr. Chief Justice MARSHALL delivered the opinion of the court.
The judgment brought up by this writ of error having been rendered by the court of a State, this tribunal can exercise no jurisdiction over it unless it be shown to come within the provisions of the 25th section of the Judiciary Act. The plaintiff in error contends that it comes within that clause in the Fifth Amendment to the Constitution which inhibits the taking of private property for public use without just compensation. He insists that this amendment, being in favor of the liberty of the citizen, ought to be so construed as to restrain the legislative power of a state, as well as that of the United States. If this proposition be untrue, the court can take no jurisdiction of the cause.
The question thus presented is, we think, of great importance, but not of much difficulty. The Constitution was ordained and established by the people of the United States for themselves, for their own government, and not for the government of the individual States. Each State established a constitution for itself, and in that constitution provided such limitations and restrictions on the powers of its particular government as its judgment dictated. The people of the United States framed such a government for the United States as they supposed best adapted to their situation and best calculated to promote their interests. The powers they conferred on this government were to be exercised by itself, and the limitations on power, if expressed in general terms, are naturally, and we think necessarily, applicable to the government created by the instrument. They are limitations of power granted in the instrument itself, not of distinct governments framed by different persons and for different purposes.
If these propositions be correct, the fifth amendment must be understood as restraining the power of the General Government, not as applicable to the States. In their several Constitutions, they have imposed such restrictions on their respective [p248] governments, as their own wisdom suggested, such as they deemed most proper for themselves. It is a subject on which they judge exclusively, and with which others interfere no further than they are supposed to have a common interest.
The counsel for the plaintiff in error insists that the Constitution was intended to secure the people of the several States against the undue exercise of power by their respective State governments, as well as against that which might be attempted by their General Government. It support of this argument he relies on the inhibitions contained in the tenth section of the first article. We think that section affords a strong, if not a conclusive, argument in support of the opinion already indicated by the court. The preceding section contains restrictions which are obviously intended for the exclusive purpose of restraining the exercise of power by the departments of the General Government. Some of them use language applicable only to Congress, others are expressed in general terms. The third clause, for example, declares, that "no bill of attainder or ex post facto law shall be passed." No language can be more general, yet the demonstration is complete that it applies solely to the Government of the United States. In addition to the general arguments furnished by the instrument itself, some of which have been already suggested, the succeeding section, the avowed purpose of which is to restrain State legislation, contains in terms the very prohibition. It declares, that "no State shall pass any bill of attainder or ex post facto law." This provision, then, of the ninth section, however comprehensive its language, contains no restriction on State legislation.
The ninth section having enumerated, in the nature of a bill of rights, the limitations intended to be imposed on the powers of the General Government, the tenth proceeds to enumerate those which were to operate on the State legislatures. These restrictions are brought together in the same section, and are by express words applied to the States. "No State shall enter into any treaty," &c. Perceiving, that in a constitution framed by the people of the United States, for the government of all, no limitation of the action of government on [p249] the people would apply to the State government, unless expressed in terms, the restrictions contained in the tenth section are in direct words so applied to the States.
It is worthy of remark, too, that these inhibitions generally restrain State legislation on subjects intrusted to the General Government, or in which the people of all the States feel an interest. A State is forbidden to enter into any treaty, alliance or confederation. If these compacts are with foreign nations, they interfere with the treaty-making power, which is conferred entirely on the General Government; if with each other, for political purposes, they can scarcely fail to interfere with the general purpose and intent of the Constitution. To grant letters of marque and reprisal, would lead directly to war, the power of declaring which is expressly given to Congress. To coin money is also the exercise of a power conferred on Congress. It would be tedious to recapitulate the several limitations on the powers of the States which are contained in this section. They will be found generally to restrain State legislation on subjects intrusted to the government of the Union, in which the citizens of all the States are interested. In these alone were the whole people concerned. The question of their application to States is not left to construction. It is averred in positive words.
If the original Constitution, in the ninth and tenth sections of the first article, draws this plain and marked line of discrimination between the limitations it imposes on the powers of the General Government and on those of the State; if, in every inhibition intended to act on State power, words are employed which directly express that intent; some strong reason must be assigned for departing from this safe and judicious course in framing the amendments before that departure can be assumed. We search in vain for that reason.
Had the people of the several States, or any of them, required changes in their Constitutions, had they required additional safeguards to liberty from the apprehended encroachments of their particular governments, the remedy was in their own hands, and could have been applied by themselves. A [p250] convention could have been assembled by the discontented State, and the required improvements could have been made by itself. The unwieldy and cumbrous machinery of procuring a recommendation from two-thirds of Congress and the assent of three-fourths of their sister States could never have occurred to any human being as a mode of doing that which might be effected by the State itself. Had the framers of these amendments intended them to be limitations on the powers of the State governments, they would have imitated the framers of the original Constitution, and have expressed that intention. Had Congress engaged in the extraordinary occupation of improving the Constitutions of the several States by affording the people additional protection from the exercise of power by their own governments in matters which concerned themselves alone, they would have declared this purpose in plain and intelligible language.
But it is universally understood, it is a part of the history of the day, that the great revolution which established the Constitution of the United States was not effected without immense opposition. Serious fears were extensively entertained that those powers which the patriot statesmen who then watched over the interests of our country deemed essential to union, and to the attainment of those invaluable objects for which union was sought, might be exercised in a manner dangerous to liberty. In almost every convention by which the Constitution was adopted, amendments to guard against the abuse of power were recommended. These amendments demanded security against the apprehended encroachments of the General Government -- not against those of the local governments. In compliance with a sentiment thus generally expressed, to quiet fears thus extensively entertained, amendments were proposed by the required majority in Congress and adopted by the States. These amendments contain no expression indicating an intention to apply them to the State governments. This court cannot so apply them.
We are of opinion that the provision in the Fifth Amendment to the Constitution declaring that private property shall not be taken for public use without just compensation is intended solely as a limitation on the exercise of power by the [p251] Government of the United States, and is not applicable to the legislation of the States. We are therefore of opinion that there is no repugnancy between the several acts of the general assembly of Maryland, given in evidence by the defendants at the trial of this cause, in the court of that State, and the Constitution of the United States. This court, therefore, has no jurisdiction of the cause, and it is dismissed.
This cause came on to be heard on the transcript of the record from the Court of Appeals for the Western Shore of the State of Maryland, and was argued by counsel. On consideration whereof, it is the opinion of this Court that there is no repugnancy between the several acts of the General Assembly of Maryland given in evidence by the defendants at the trial of this cause in the court of that State and the Constitution of the United States; whereupon it is ordered and adjudged by this court that this writ of error be, and the same is hereby, dismissed for the want of jurisdiction.
Yes, that is how things were decided in the pre-Civil War states' rights era.
The problem made manifest by the Civil War, and its aftermath, is that the rights found in the Constitution, which all citizens ought to have, are most often infringed by the US States, by strong localized factions who simply desire to exert power that Americans in general do not believe government should have.
Everything having to do with race is the most glaring example, but eminent domain abuses by small cabals of developers and connected local politicians fits just as well within the cadre of things that stink, and that people don't think government ought to do. The Americans did not throw off the British and limit their new government just so that their states could evolve into the sort of oppressive governments that the British had once been.
Which is no doubt why they get sued in a case with enough credibility to reach SCOTUS.
I have to remind my Democrat friends that Robin Hood actually stole from an overly oppresive governmental system and returned money to the people. Democrats like the overly oppresive system, Republicans want to return money to the people. I never let a Dem claim to be like Robin Hood...
No, not in particular. Go read his dissent from start to finish - what he says - not what you want him to say. The application of the 14th to the states has long ago been setteled and it is a good thing. I know you "state's rightists" think that the states should be left to do what they want, but the states don't have rights. They have powers, and I am just as happy that the states power to violate fundamental freedoms is just as circumscribed as is the power of the Federal Government.
Sorry, please go back and read the thread: I am not asserting states rights -- (heck, go back in my posting history this last week and read my many postings on this eminent domain decision where I have consistently asserted the incorporation of property rights) -- I was just quoting the 1833 Baltimore decision (well before the 14th Amendment) that was referenced by Justice Thomas as the contrary case prior to adoption of the 14th and the development of incorporation.
As for your advice "to read Thomas", I have probably read that dissenting opinion more times than most people on Free Republic -- I had read it on another server and posted about it before it even went on the Court's slip system.
What this means is that the citizens have to take an interest in what their elected officials and their staff are doing.
You know, I managed to do this once. Lafayette town meeting on switching the east side of town main street from 2 lanes each way to one lane with 45 degree parking and TRAFFIC CIRCLES! I managed to get off work and jet back home for the 1900 hours meeting where I literally asked them what they were smoking when they thought of doing this to a quite busy main thoroughfare. It was to benefit the Lafayette Park Hotel.
That idea died a quiet death after that night, but one morning about 8 months ago I saw that sign up notifying of a meeting. I missed it (job you know...). They aren't putting in traffic circles or removing lanes, yet, but they are putting in a bunch of BS for the hotel...
It never ends. They need constant surveillance and do appreciate citizen input even if it does kill a sweet deal now and then.
Hmmm... Spock must have voted for a taking...
That would be us, denizens of FReepland, participants in the public debate, analysts of pre-Word fonts.
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