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Thursday, February 24, 2005

Kelo Shop of Horrors

I am not ready to dive into a defense of Lawrence, but if the Supreme Court of the U.S. wrote it, they should stick by it. Lawrence was decided on SUBSTANTIVE DUE PROCESS and not equal protection grounds. It precludes the state from crossing the threshold of the intimate bedroom. The logic has to be that state powers are limited by their constitutions, and as a rule of construction, in the absence of a specific grant of affirmative power, we assume that the basic constituent unit ends at the door ways of private homes.

If state governments want to condemn a small business district for building a GM plant, that presents a fight for another day. But if the a state is planning on demolishing a private residence, it should have to meet a higher public threshold standard than having gotten a majority of the legislature.

Unless Lawrence is (as the reference to the European Court of Human Rights would suggest) a blind stab at Feeding the Hungry and Clothing the Naked, then we must assume that its reasoning has meaning even if the parties involved were not members of a persecuted subgroup in society. If, as a default, the powers of the state are constrained, than substantive due process combined with the takings clause should demand that if the state wants to demolish my home, they had better get me to either sign a contract, or at least present a plausible public reason.

Maybe Lochner wasn't so crazy...


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