Friday, August 12, 2005

Kelo, Dread Scott and Due Process

balkanization argues that:
-Dread Scott* was based on substantive Due Process (the idea that the Due Process Clause in the constitution prohibits certian governmental actions affecting fundamental rights, such as outlawing private sexual conduct, the right to marry, or taking property for private purposes, and does not just require a fair procedure in outlawing an activity or taking property).
-Dread Scott has been used as a reason for rejecting substantive Due Process claims. Conservatives reason that substantive Due Process produced the bad Dread Scott decision, which allowed slavery in the new territories, therefore, substantiating Due Process is bad and prohibitions on government regulation must be specifically listed in the Constitution. Thus, a right to privacy - including the right to purchase and use contraception, the right to private sexual conduct, and the right to abortion - is bad and not in the Constitution.
-Justice O'Connor and the conservatives used substantive Due Process when they dissented in Kelo**. The Takings Clause states: "private property [shall not] be taken for public use, without just compensation." It does not mention taking private property for private use, or require any payment for in such a situation. O'Connor and Thomas say a prohibition on the taking of property for private purposes is implicit in the clause. Balkanization argues that the conservatives are really arguing that some things, some fundamental rights, left out of the Bill of Rights are still protected by the Contitution (under the Due Process Clause).
-The Dread Scott decision applied constitutional protections to areas outside of the States.
-Today, the Bush Administration wishes to argue that the Constitution does not apply to the government holding prisoners at Guantanamo Bay because it is outside the territory of the United States.
-The principal of Substanitive Due Process (misapplied) in Dread Scott is not inherently bad. And it is not rejected by either the liberal or the conservative members of the Court.

*In 1854, the Dread Scott decision held that Congress could not outlaw slavery in the territories because it would unconstitutionally take the property rights of the slave owner.
**In Kelo, the Court held that a city may take private property and transfer the land to a developer for the purpose of revitalizing an economically distressed community when it is not done primarily for the benefit of the developer.

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