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More from Richard Epstein on the Sotomayor Nomination,

in his Forbes column -- this time criticizing the conservative judicial minimalist case against her:

Alas, the inescapable truth is that constitutional law contains no magic bullet that condemns judicial activism and lauds judicial restraint. The public outcry over the Supreme Court's rendering of the "public use" language in Kelo v. City of New London was for its failure to use plain constitutional language to stop the egregious decision of New London to condemn Ms. Kelo's land literally for no reason at all. If that's judicial activism, then words have lost all meaning.

These observations have clear implications for the ongoing debate over the Sotomayor nomination. However unhappy conservatives and libertarians might be with her nomination, they won't put a dent in her confirmation prospects in the Senate and they won't alter the terms of the political debate by waving the tattered flags of judicial activism and strict construction. There are no intellectual shortcuts.

Her opponents have to engage in a more fine-grained inquiry that shows why the judges, like Sotomayor, who work in the progressive tradition embrace a judicial philosophy that leads them to make both kinds of constitutional errors. Intervening in cases where they should stay out--Roe v. Wade comes to mind--and not intervening where they ought to intervene, as in Kelo and Didden. To this libertarian, Karl Rove's broadside won't get this campaign off to an auspicious start.

Olympus:
No "magic bullet"? It's called separation of powers.
6.2.2009 2:18pm
John T. (mail):
If that's judicial activism, then words have lost all meaning.


Well, that was the point. Judicial activism was coined as a phrase meaning judges substituting their own reasoning for the Constitution, so clearly by those lights the actual Kelo was judicial activism; applying the plain meaning of the Constitution and preventing the eminent domain would be judicial restraint.

Since the words that make up the phrase admit other meanings, it was certainly possible for people to come up with other meanings for the phrase. I believe that the campaign was mostly intentional, to discredit a popular phrase. In fairness, the phrase was chosen for the positive connotations that the other meanings of the words also have.

Judicial activism had a precise meaning by those who coined it. Their opponents (and too, erstwhile allies wanting to use it against other targets) have succeeding in muddying the language and confusing it.

Of course, these types of coinings are commonplace shorthand, "pro-choice" and "pro-life" being but two.
6.2.2009 2:33pm
TNeloms:
As John T. alludes to, to many "judicial activism" simply means ruling based on a judge's personal beliefs rather than what the Constitution or law says. Under that meaning, it seems like a perfectly reasonable criticism to use Karl Rove's "broadside" by including Kelo with Roe v Wade and other decisions, and is not an intellectual shortcut.
6.2.2009 2:45pm
Justin (mail):
"Judicial activism was coined as a phrase meaning judges substituting their own reasoning for the Constitution."

Okay, in that case, Judicial Activism describes something that has almost no backers and almost never (if ever) occurs. It assumes not only that "I'm right and everyone who disagrees with me is wrong" but it also assumes that "I'm right and everyone who disagrees with me is disingeuous."

And, in that case, it's a term that should be buried. It's code-word for "decisions I disagree with," and there's no legitimate use for such a code word.
6.2.2009 2:46pm
frankcross (mail):
The problem is that no one is God who knows what the correct law or Constitutional meaning is. Not even Volokh commentators. So saying that judicial activism is not following the Constitution is just saying that the criticize decisions do not follow your personal vision of the Constitution, which is saying pretty much nothing.

I.e., you think Kelo was wrongly decided, so you think the Court ruled on personal beliefs. But who the heck are you to play God about the correct meaning of the Constitution?
6.2.2009 2:49pm
Malvolio:
Judicial activism was coined as a phrase meaning judges substituting their own reasoning for the Constitution.
Okay, in that case, Judicial Activism describes something that has almost no backers and almost never (if ever) occurs.
I know it's kind of an obscure example, but Roe v. Wade? Even if you think it was good policy, you can't imagine there are Constitutional justifications for it.
6.2.2009 3:05pm
Justin (mail):
I tend to think that Roe v. Wade was wrongly decided, but there are hardly "no" Constitutional justifications for it. Kermit Roosevelt has written some pretty persuasive ones, for one.
6.2.2009 3:07pm
Real American (mail):
why have judges then, if no one can know the correct meaning of the constitution? What a stupid comment. Of course, judges aren't God (but try telling them that!) However, words have meanings and you can't say that there aren't correct and incorrect interpretations of the Constitution - only ones you agree or disagree with. What a load of relativistic crap.

the problem is that for decade mostly liberal activist judges have been imposing their policy preferences through their interpretations of the Constitution. They've been making it up as they go along to get their desired results. Of course, on the face of it, they claim that their rulings are based on the law and the constitution, but they are full of shit - Penumbras and emanations and all that. They should just be honest and come out and say they are imposing their beliefs because they think lawmakers were wrong. Sotomayor did that and let the cat out of the bag, but now has to backtrack and spin and try to continue the illusion because she accidentally was honest - a true political gaffe.
6.2.2009 3:09pm
ruuffles (mail) (www):

But who the heck are you to play God about the correct meaning of the Constitution?

If there was one singular correct meaning, then why don't Scalia, Thomas, Roberts, and Alito not only vote the same way, but join only one opinion?
6.2.2009 3:09pm
hawkins:

"judicial activism" simply means ruling based on a judge's personal beliefs rather than what the Constitution or law says.


There was no way for the Court to avoid "judicial activism." The law said one thing and the constitution said the other?
6.2.2009 3:10pm
Jon Roland (mail) (www):
Implicit in Marbury is the (militia) duty we all have to help enforce the law, and that means resolving conflicts of law, especially when one of the laws in the conflict is the Constitution. It is not a duty one can cede to judges, supervisors, or legal advisers. We are all on our own, ready or not, and we had better get it right. That is not playing God. It is being a citizen in a constitutional republic, which demands we all become experts in constitutional construction.

I usually agree with Epstein, but must disagree that the SC should not have taken up Roe. Once judicial questions are raised, they need to be resolved, if we are to have a rule of law. That means ultimately the SC must be willing and able to take up any judicial question, even "political questions", whether it is ready or not. The case was badly argued. What the Court should have done in dictum was to indicate how it should have been argued. See my blog article on it here.
6.2.2009 3:12pm
ruuffles (mail) (www):

why have judges then, if no one can know the correct meaning of the constitution?

So is it Scalia/Thomas or Roberts/Alito that don't know the correct meaning of the Fourth Amendment (Arizona v. Gant)?
6.2.2009 3:14pm
Jon Roland (mail) (www):
By the way, the problem in Kelo was that the public use language of the Fifth Amendment was not in the Connecticut Constitution, so the SC just followed that state's constitution rather than incorporating the Fifth against it, in effect saying it was up to the citizens of Connecticut to fix it. I think the intent of the 14th was to incorporate all of the Bill of Rights, even the Ninth and Tenth Amendments, as well as rights elsewhere in the original Constitution, and therefore that the public use langage of the Fifth should have been applied.
6.2.2009 3:18pm
hawkins:

It is being a citizen in a constitutional republic, which demands we all become experts in constitutional construction.


Most people have better uses of their time
6.2.2009 3:18pm
Justin (mail):
Jon,

Nothing in the plain text of the public use portion of the 5th Amendment requires that all takings be for public use - it's only a sort of preambulatory phrase that says takings for such use must be compensated. It doesn't say one thing or another about any other type of taking.

The truth is that the Constitutional framers didn't consider the regulatory state or the modern economy and didn't even contemplate whether such takings should be constitutional and if so under what circumstances.
6.2.2009 3:24pm
byomtov (mail):
why have judges then, if no one can know the correct meaning of the constitution?

Why have judges then, if the correct meaning of the Constitution is always obvious?
6.2.2009 3:28pm
Jon Roland (mail) (www):
ruuffles:

So is it Scalia/Thomas or Roberts/Alito that don't know the correct meaning of the Fourth Amendment (Arizona v. Gant)?

That was a judgment as to what is "reasonable", and the Constitution does not define the term, nor could it. It is terms like that that invalidate the Dworkian position that there is always a correct answer to any judicial question. When the Court decides what is "reasonable" it is not construing the Constitution, but exercising its discretion under its equity jurisdiction.

Not all SC decisions are properly viewed as constitutional construction. Many of its decisions are equitable or prudential. The Constitution is indeterminate for those, even though the decisions have to be made.
6.2.2009 3:31pm
Anon321:
Slightly off-topic, but I've always thought that, to the extent that conservatives truly believe that judicial activism -- defined here as a judge's willingness to strike down laws passed or actions taken by the political branches -- is generally bad, Kelo should have caused them to reconsider it as a blanket principle. (I recognize that people differ on the meaning of judicial activism. But if it really just means "ruling on a basis that is contrary to the Constitution," it's just a cloak for arguments about constitutional meaning.) In the same vein, liberals who advocate for a strong judiciary zealously guarding the rights of individuals, without necessarily being constrained by cramped readings of the text, should look at a case like Parents Involved and question whether their general views on the role of the judiciary should be revised.

There are some theorists -- notably, "popular constitutionalists" like Mark Tushnet and Larry Kramer -- who think that courts should always defer to the constitutional interpretations of the political branches, so long as those interpretations have any plausible basis whatsoever. They're pretty admirable in their consistency. Most of the rest of us tend to use arguments about activism as a proxy for arguments about what the Constitution really means. Cases like Kelo and Parents Involved should give both sides pause about continuing to do so. If you condemn a court for "striking down the will of the people," it's harder to complain when a court says, "this is a tough call so we'll defer to the will of the people."
6.2.2009 3:32pm
J.R.L.:
Wow, where to begin?

1. Judicial activism does indeed meaning substituting one's own personal preferences for the law. The proponents of actual judicial activism have been quite successful at redefining the term to mean overturning an act of the legislature.

2. There really is only one right answer.
6.2.2009 3:34pm
Justin (mail):
Wow, J.R.L. Thanks for settling that.
6.2.2009 3:35pm
Jon Roland (mail) (www):
Justin:

Nothing in the plain text of the public use portion of the 5th Amendment requires that all takings be for public use - it's only a sort of preambulatory phrase that says takings for such use must be compensated. It doesn't say one thing or another about any other type of taking.

People read it that way today using the English of our time, but if one learns the legal English of 1787 it was definitely intended as a restriction on the purpose for which property could be taken. Understanding the Constitution as its authors did means learning 1787 legal English as a foreign language.

From such study of 1787 legal English one also finds there is no federal power of eminent domain over state territory without the consent of the state legislature. The Takings Clause really only applies to nonstate territory, unless such consent is obtained IAW Art. I Sec. 8 Cl. 17.
6.2.2009 3:38pm
ruuffles (mail) (www):

That was a judgment as to what is "reasonable", and the Constitution does not define the term, nor could it. It is terms like that that invalidate the Dworkian position that there is always a correct answer to any judicial question.

Alright, but what about Oregon v. Ice? Alito split with Scalia, Thomas, and Roberts? (You can tell I'm working quite hard to look for these splits.)
6.2.2009 3:40pm
Justin (mail):
That's your assertion, Jon. But at minimum, my guess is you may be confusing an assumption behind the 5th Amendment with a meaning thereof. I've seen *no* evidence that the founding Framers *contemplated* and *intended to ban* nonpublic takings by putting forth the 5th Amendment.

If you take every assumption as an interpretation, than the entirety of the regulatory state is unconstitutional. Either we start society over from scratch, or draft a new Constitution.
6.2.2009 3:42pm
ruuffles (mail) (www):
Then there's Hamdi v Rumsfeld and Virginia v Black, both cases where Scalia and Thomas not only split, but Thomas dissented alone.
6.2.2009 3:51pm
J.R.L.:

That's your assertion, Jon. But at minimum, my guess is you may be confusing an assumption behind the 5th Amendment with a meaning thereof. I've seen *no* evidence that the founding Framers *contemplated* and *intended to ban* nonpublic takings by putting forth the 5th Amendment.



Apparently you are not familiar with the concept of enumerated powers? You argument might be tenable if it weren't for Articles 1-3.
6.2.2009 3:53pm
J.R.L.:

"That was a judgment as to what is "reasonable", and the Constitution does not define the term, nor could it. It is terms like that that invalidate the Dworkian position that there is always a correct answer to any judicial question."



The Constitution is full of undefined terms. That does not mean, however, that those terms are devoid of meaning.
6.2.2009 3:55pm
Jon Roland (mail) (www):
Justin:

That's your assertion, Jon. But at minimum, my guess is you may be confusing an assumption behind the 5th Amendment with a meaning thereof. I've seen *no* evidence that the founding Framers *contemplated* and *intended to ban* nonpublic takings by putting forth the 5th Amendment.

No, it comes from knowledge of the legal understandings and assumptions of that era, most of which were so clear that they never had to be stated and never arose in debates that could provide the kind of evidence you seem to want. In that era even mention of a taking under eminent domain was so controversial that the need had to be overwhelming.


If you take every assumption as an interpretation, than the entirety of the regulatory state is unconstitutional. Either we start society over from scratch, or draft a new Constitution.

I do regard most of the regulatory state to be unconstitutional in the sense that administrative agencies make rules they try to apply like law to other than their own agents, which is a violation of legislative nondelegation, or that courts defer to their findings rather than always requiring strict proof, thus shifting the burden to the hapless citizen. Administrative agencies need to be kept in their place as advisory only.
6.2.2009 4:00pm
EH (mail):
"judicial activism" simply means ruling based on a judge's personal beliefs rather than what the Constitution or law says.

I thought it meant that the ruling went against the personal beliefs of the observer.
6.2.2009 4:01pm
Justin (mail):
J.R.L., I have no idea how the City of Port Chester would be impacted by the limitations of Article I. If the argument that the City of Port Chester's claims were unconstitutional (or the City of New London's, for that matter) was not based on the limitations coming from the 5th Amendment but some other part of the Constitution, than the decision is even simpler.

I know what you're trying to get at, to some degree - the Founders didn't contemplate private takings by states because they were dealing with the federal government, they didn't need to add such a limitation because there was no need to contemplate it. But even if I agreed with this, it would only highlight the difference between assumptions and intentions that I was making before.
6.2.2009 4:03pm
Justin (mail):
By assertion, I meant simply that for me to agree with you, I simply have to take you on your word. You've provided no independant evidence of your argument, and I've seen none from anyone else. Sorry for any confusion.
6.2.2009 4:04pm
frankcross (mail):
Ok we know that JRL thinks he's the God of constitutional interpretation. But others may not accept that. They may believe him to be fallible. But maybe someone will believe him to be God, and he can just declare all the cases that are judicial activism.
6.2.2009 4:09pm
J.R.L.:

Ok we know that JRL thinks he's the God of constitutional interpretation. But others may not accept that. They may believe him to be fallible. But maybe someone will believe him to be God, and he can just declare all the cases that are judicial activism.



I don't believe I ever claimed to know what the right answer is in every circumstance, only that there is a right answer. That's quite a difference.
6.2.2009 4:18pm
ruuffles (mail) (www):

I don't believe I ever claimed to know what the right answer is in every circumstance, only that there is a right answer. That's quite a difference.

So who got the right answer in Hamdi v Rumsfeld and Virginia v Black, Scalia or Thomas?
6.2.2009 4:19pm
Justin (mail):
JRL, so how does "judicial activism" not mean simply "getting the wrong answer, based on my opinion as to what the right answer is," assuming you give judges the same modesty you impose on yourself? How does judicial activism not mean "opinions I disagree with."
6.2.2009 4:21pm
J.R.L.:
JRL, so how does "judicial activism" not mean simply "getting the wrong answer, based on my opinion as to what the right answer is," assuming you give judges the same modesty you impose on yourself? How does judicial activism not mean "opinions I disagree with."

To ensure I am answering the right question, are you asking about the outcome of the case from a policy preference standpoint or about the reasoning and interpretation employed to reach the outcome?
6.2.2009 4:30pm
Carl the EconGuy (mail):
I think you are all missing an essential point. "Judicial activism" means more than y'all imply. I believe it means that courts usurp the right to make political decisions before they have been thoroughly vetted by the political process. It's a question of which forum goes first, and that's an ongoing battle. Judicial review is settled law, but courts inventing new rights is not. Perhaps a case can be made, as Epstein seems to attempt, that courts can do that too -- and I think there's precedence in English common law for that view. But, today, I believe that, even we were to agree that courts can create new rights, the overwhelming majority of the polity would prefer that sensitive questiosn be resolved politically first. Read abortion or homosexual marriage, for example. If that fails, and a credible argument can be made that the political system failed in recognizing a constitutional issue, then the courts surely should be able to step in.
6.2.2009 4:39pm
Justin (mail):
JRL, huh?

If there's a right answer to a constitutional law question but the Judges don't know for sure what it is, and tries to answer the question the best way they know how, and gets it wrong, is that judicial activism under your definition?

If the answer is no, then judicial activism is something that practically never occurs, imho.

If the answer is yes, then we run into a problem of who gets to judge what the right answer is, and thus considering two judges who come to opposite results, which ones are the judicial activists.
6.2.2009 4:44pm
David Welker (www):

No, it comes from knowledge of the legal understandings and assumptions of that era, most of which were so clear that they never had to be stated and never arose in debates that could provide the kind of evidence you seem to want.


Thank you for revealing your total ignorance of history. Now, it is quite clear that there is no reason to consider your opinion.

Yeah, Thomas Jefferson and Alexander Hamilton. They totally agreed about the meaning of the Constitution. Because, back then the English language was different. It did not contain any ambiguity.

You are clearly living in an alternate universe.
6.2.2009 4:48pm
frankcross (mail):
JRL if there is a right answer, and you don't have it, who does? Who is the God of correct constitutional interpretation, against whom activism may be measured. It doesn't help much to say there is a right answer in the abstract, if it can't be identified.
6.2.2009 5:29pm
Sarcastro (www):
This postmodernism is why the Divine Right of Kings needs to make a comeback.

The Constitution in auto de fe.
6.2.2009 5:39pm
SamW:
"Understanding the Constitution as its authors did means learning 1787 legal English as a foreign language."

Not only is that a cloak for judicial activism, it posits that no one today (except special foriegn language "experts")can understand the Constitution. If that's true, we should get rid of it altogether.

On what basis would you claim that the Constitution was intended not to be understood by almost all Americans, forever?
6.2.2009 5:52pm
Jon Roland (mail) (www):
David Welker:

Yeah, Thomas Jefferson and Alexander Hamilton. They totally agreed about the meaning of the Constitution. Because, back then the English language was different. It did not contain any ambiguity.

I never said there were no ambiguities. Just not affecting that point of law.

Actually, they did agree on most points of the Constitution, as did most people on most legal points in the era, constitutional, statutory, and common law. Concensus was the norm, dispute the exception. Those points seldom if every came up in debate, so we don't have evidence of them. There were a few points of disagreement, which did come up, and on which they and their followers focused. Some of those arose from ambiguities, some were policy differences that were underspecified by the Constitution.

The absence of evidence can be taken as the absence of controversy, either because of agreement on law or the lack of cases to bring attention to disputes on points of law. But the cases didn't have to be recent or in what became the U.S. Much of the shared understanding came from old English cases, like Dr. Bonham's Case.
6.2.2009 6:04pm
Bob White (mail):
Thomas was right in both Hamdi v. Rumsfeld and Virginia v. Black. Hamdi is a particularly egregious case of legislating from the bench-the other 8 justices simply don't find the (correct) result reached by Thomas a palatable one, probably for reasons of judicial supremacy. The majority's result may be desirable from a policy perspective (I'm unsure), but they're wrong on the law and Thomas is right.

Black is not quite so easy a case, but is still not that difficult and represents an example of the sort of muddle-headed special privileges that so mar First Amendment caselaw. Amendments are numbered in order of their adoption, and not their importance. Fortunately, like most First Amendment cases, the result doesn't really matter that much, and when it does matter isn't generally that important.
6.2.2009 6:30pm
ruuffles (mail) (www):

Thomas was right in both Hamdi v. Rumsfeld and Virginia v. Black.

Look at Hamdi. Scalia and Stevens agreed on a position completely opposite of Thomas, while the rest landed somewhere in the middle. Are you seriously suggesting that Thomas's view, the most extreme and the one not signed on by any other justices, is correct?
6.2.2009 7:00pm
Bob White (mail):

Are you seriously suggesting that Thomas's view, the most extreme and the one not signed on by any other justices, is correct?

Yes, I am. That a position is markedly different from others', or that only one of nine members reached it, does not make it wrong. From my reading of the prior cases and the relevant other materials, Justice Thomas's views and mine are almost perfectly congruent on this matter.

Just to clarify, and to distinguish myself from Jon Roland, I recognize and accept the "is-ought" dichotomy, and that I believe the Supreme Court got Hamdi wrong does not mean that I can freely ignore Hamdi's existence, and its probable lasting effect, given that only one justice got it right.

And, as I said in my earlier comment, this is a question of legal interpretation, not a policy one.
6.2.2009 7:15pm
Ohio Scrivener (mail):

However unhappy conservatives and libertarians might be with her nomination, they won't put a dent in her confirmation prospects in the Senate and they won't alter the terms of the political debate by waving the tattered flags of judicial activism and strict construction.



No, they wont put a dent in her nomination because the Senate Republicans are powerless to carry a filibuster and quite a few are terrified of being branded racists for even trying.

The public (at least most non-lawyers among us) typically focus on results not the abstraction of judicial activism. As long as Sotomayor avoids taking definitive positions on hot-button issues in her confirmation, she can wax poetic about how much fun she has making policy from the bench. The Republicans in the Senate will be right to criticize her for judicial activism, but they are going to get rolled.

And in many ways, this is what our country deserves. We just elected a President who promised:


"We need somebody who's got the heart, the empathy, to recognize what it's like to be a young teenage mom. The empathy to understand what it's like to be poor, or African-American, or gay, or disabled, or old. And that's the criteria by which I'm going to be selecting my judges."



For those not on the empathy list. Too bad. We used to pretend that justice should be blind. That seems rather quaint now.
6.2.2009 7:27pm
per son:
Absense of evidence is absense of controversy?

Keep in mind that Madison kept the notes and it was likely that he emphasised and deemphasised matters for political reasons.

I think that absense of evidence means that we just do not know what the founders thought.
6.2.2009 9:01pm
Desiderius:
Sarcastro,

"This postmodernism is why the Divine Right of Kings needs to make a comeback."

To the extent that postmodernism erodes the rule of law, and I would argue that it very much does, it favors the rule of men, over which the Divine Right of Kings was considered an improvement.

I'd just as soon not follow you back to square one to begin with.
6.2.2009 10:05pm
MarkField (mail):

To the extent that postmodernism erodes the rule of law, and I would argue that it very much does, it favors the rule of men, over which the Divine Right of Kings was considered an improvement.


Sadly, in actual practice the Divine Right of Kings gave us nothing more than the prejudices of particular kings dressed up in a fancy theory of make-believe objectivity.

Much like originalism. :)
6.2.2009 10:39pm
Desiderius:
Markfield,

"Sadly, in actual practice the Divine Right of Kings gave us nothing more than the prejudices of particular kings dressed up in a fancy theory of make-believe objectivity."

That, and, you know, the Renaissance, but of course birth itself is merely a sociological construction of the Patriarchy designed to keep womyn down, rebirth thus being doubly suspect.

Remember who had the Divine Right before the Kings. And after.
6.2.2009 11:40pm
Jon Roland (mail) (www):
per son:

Absense of evidence is absense of controversy?

Keep in mind that Madison kept the notes and it was likely that he emphasised and deemphasised matters for political reasons.

I think that absense of evidence means that we just do not know what the founders thought.

It is not just absence in the Notes on the Federal Convention, but in the subsequent ratification debates. And, yes, the absense of controversy does indicate consensus. You won't find evidence of controversy on the issue of whether water is wet, either. Now in a way that is problematic for modern readers who don't think they can understand writers in another language unless there is evidence of controversy over usage, but that situation confronts linguists all the time and we manage to figure out what people meant when tney wrote in a foreign language. It is a matter of constructing a theory of their minds and how they apprehended the world. That can take a lot of reading of what they wrote and a long effort to "get into their heads", but it can be done. The test of whether you understand them is whether you can predict what they will say in the next thing you read, based on what you have read previously.
6.3.2009 10:31am
MarkField (mail):

That, and, you know, the Renaissance, but of course birth itself is merely a sociological construction of the Patriarchy designed to keep womyn down, rebirth thus being doubly suspect.

Remember who had the Divine Right before the Kings. And after.


Nicely done, though I'm surprised you don't attribute the Renaissance to the Church, which you might very well do with good historical accuracy. Not many kings in Italy in the Cinquecento, at least not where all the action was (north of Naples).
6.3.2009 11:09am
MarkField (mail):
Oops. Meant Quattrocento, of course.
6.3.2009 11:51am
Kirk:
Justin,
Nothing in the plain text of the public use portion of the 5th Amendment requires that all takings be for public use - it's only a sort of preambulatory phrase that says takings for such use must be compensated. It doesn't say one thing or another about any other type of taking
Be careful, that reading proves far, far too much: it means that if government takes your property for private purposes, it doesn't have to pay at all!

Sorry, that doesn't fly. Rather, the notion that government could legitimately take privately-owned property for a non-public use was so inconceivable that in didn't occur to anyone to mention it.
6.3.2009 12:20pm
Desiderius:
"Not many kings in Italy in the Cinquecento, at least not where all the action was (north of Naples)."

No shortage of Princes, however. Though of course the Divine Right argument was a response to the good Niccolo's insights, so in Italia, at least, the rebirth preceded the invention of the Right.

Apologies for being so Anglo- (and to a lesser extent, Gallo-) centric.

As for the "After" above, to be clear I'm referring to the following:

"We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness."

Divine Right indeed.
6.3.2009 4:57pm
MarkField (mail):

As for the "After" above, to be clear I'm referring to the following:

"We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness."

Divine Right indeed.


Ah, missed that. Much better.
6.3.2009 7:26pm
Desiderius:
"Nicely done, though I'm surprised you don't attribute the Renaissance to the Church, which you might very well do with good historical accuracy."

Actually, I'd attribute the Renaissance to the Turks, who liberated the documents of antiquity from Constantinople, which hadn't done much with them for a millennium or so. Plus, as a humanist, I'm much fonder of the present RC church (sexism notwithstanding) than the medieval version, so I might be biased.

The Renaissance can be properly attributed to the medieval Church about as much as any recovery we might someday enjoy can be properly attributed to our present government. Any institution of such overweening power will inevitably do a few things right, among many wrongs.
6.3.2009 11:49pm

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