Charles Cooke has called for a constitutional amendment to overrule Kelo v. City of London. In Kelo a narrow majority of the Supreme Court read the public use requirement out of the Fifth Amendment’s Taking Clause and allowed the amendment to become a tool of private developers to take property from the politically less powerful. Cooke makes the excellent point that this amendment may unite many conservatives and liberals, because the Kelo decision aided special interests at the expense of the property rights of ordinary citizens.
Passing a constitutional amendment would be good for the republic even beyond the benefit of overturning Kelo and the more expressive one of trumpeting the importance of property rights. Deliberating on and enacting constitutional amendments is good for our constitutional culture.
First, it would rebut the facile and false claim that our constitutional amendment process is so hard that no significant amendments can be passed—a claim often made to justify non-originalism. In fact, the nation passed the transformative sixteenth and seventeenth amendments when there were almost as many states as there are today. In 1971 the twenty-sixth amendment reducing the age requirement for voting to eighteen took less than four months to ratify—the shortest time in the nation’s history.
Second, moving amendments to the front and center of debates would improve our politics.
Timothy Sandefur’s The Conscience of the Constitution contributes to the debate over the best way to limit the powers of the United States government in order to secure liberty. Sandefur, a lawyer and legal scholar, believes that “American constitutional history has always hovered in the mutual resistance of two principles: the right of each individual to be free, and the power of the majority to make rules.” (1) For Sandefur adherence to the natural rights theory of Declaration of Independence manages the tension between the two principles.
A New Birth of the Old Freedom: David Upham in our Books feature this week reviews Gerard Magliocca's new biography of John Bingham and his Fourteenth Amendment: As to Magliocca’s second claim—the revolutionary character of the Amendment—the evidence that he presents is flatly contradictory. As far as Bingham was concerned, the Amendment served to renew and restore, and not overthrow, the Framers’ Constitution. While Magliocca concludes that Bingham and his colleagues “created” a “new multiracial Republic,” many Republicans, including Bingham, had always believed that the Republic was multiracial and had rejected Taney’s holding in Dred Scott in favor of the common…