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Pass A Constitutional Amendment to Overrule Kelo and Help Regain our Republic

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. Because a supermajority is needed to pass a constitutional amendment citizens have to focus on persuading ideologically diverse people.  That dynamic encourages more political compromise, harnessing the energy of social movements while reducing their tendency to polarize the polity.

Finally, the more serious constitutional amendment proposals, the better for originalism and the rule of law. As Mike and I observe:

There can be no normatively attractive originalism without the amendment process. The case for originalism depends on a beneficial process, like Article V, that permits each generation to change the Constitution. But there also can be no effective amendment process without originalism. Without originalism, constitutional change can occur through other means, allowing groups to change the Constitution without amending it and leaving the amendment process a dead letter.   Proper constitutional interpretation and a vigorous constitutional politics march under a single banner: no originalism without the amendment process and no vigorous amendment process without originalism.

Ilya Somin, the leading academic expert on the decision, has helpfully drafted an amendment to overrule Kelo. It only needs sponsors in Congress. Democrats and Republicans, unite on this issue! We have everything to gain—the return of republicanism.

Reader Discussion

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on October 16, 2015 at 15:03:25 pm

This chemical engineer and citizen supports this idea and would hope waiting in the wings is overrule of Citizens United v. Federal Election Commission .

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Phil Beaver
on October 16, 2015 at 15:44:57 pm

Any other parts of the First Amendment you'd like to excise? Perhaps another group of people you really want to shut up under threat of legal punishment? Or some religion which really does not belong here?

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Sub Specie Æternitatis
on October 16, 2015 at 17:10:31 pm

For about twenty years I have urged a civic people to amend the religion clauses (which protect an institution that needs no protection) to clauses that protect thought, a civic duty.

Some others come to mind: Greece v Galloway, for example. Check the text wherein Kennedy claims "legislative prayer" is not even a citizen's business.

Precious as those proposals are to me personally, I thought them outside the scope of Kelo.

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Phil Beaver
on October 16, 2015 at 17:13:37 pm

But the only people you want the Constitution amended so that they can be thrown in the slammer for political speech are those who get together in corporate form for their speech?

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Sub Specie Æternitatis
on October 16, 2015 at 18:55:11 pm

Nawwwh!!! Einstein wishes to shut off religion - cuz it just ain't scientific and does not come from the same "orifice" (his words) that produces mass, energy and something else.

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gabe
on October 16, 2015 at 18:58:35 pm

John:

Agree wholeheartedly - not only that I think this Kelo amendment would pass rather quickly.

Another benefit (perhaps) would be that it would provide an opportunity for (see R. Samuelson's LLB post today) "officers and representatives" to discuss and educate the citizenry on First Principles.

Who knows if we treated our fellow citizens as if they possessed a modicum of intelligence they might well act according to First Principles.

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gabe
on October 16, 2015 at 19:32:01 pm

Please google Theory of collaboration by a civic people and read Item 8.

We promote A Civic People of the United State who intend to establish civic morality and slowly influence We the People of the United States for reform from domestic alienation and violence.

A civic people promote voting but leave the decisions about the vote to We the People, including the faction we call A Civic People.

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Phil Beaver
on October 16, 2015 at 19:44:46 pm

My reading list for political tracts who import depends on repeated capitalized nominal phrases is rather crowded these days. But it seems to me that overturning Citizen United and preventing people from joining together in corporate form for political speech would tend to increase, rather than decrease, alienation.

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Sub Specie Æternitatis
on October 16, 2015 at 22:07:53 pm

From: http://www.samharris.org/blog/item/my-friend-einstein

The Laws of Science and The Laws of Ethics

By Albert Einstein

Science searches for relations which are thought to exist independently of the searching individual. This includes the case where man himself is the subject. [1] Or the subject of scientific statements may be concepts created by ourselves, as in mathematics. Such concepts are not necessarily supposed to correspond to any objects in the outside world. However, all scientific statements and laws have one characteristic in common: they are “true or false” (adequate or inadequate). Roughly speaking, our reaction to them is “yes or “no.”

The scientific way of thinking has a further characteristic. The concepts which it uses to build up its coherent systems are not expressing emotions. For the scientist, there is only “being,” but no wishing, no valuing, no good, no evil; no goal. As long as we remain within the realm of science proper, we can never meet with a sentence of the type: “Thou shalt not lie.” [2] There is something like a Puritan’s restraint in the scientist who seeks truth: he keeps away from everything voluntaristic or emotional. Incidentally, this trait is the result of a slow development, peculiar to modern Western thought.

From this it might seem as if logical thinking were irrelevant for ethics. Scientific statements of facts and relations, indeed, cannot produce ethical directives. [3] However, ethical directives can be made rational and coherent by logical thinking and empirical knowledge. If we can agree on some fundamental ethical propositions, then other theoretical propositions can be derived from them, provided that the original premises are stated with sufficient precision. Such ethical premises play a similar role in ethics, to that played by axioms in mathematics.

This is why we do not feel at all that it is meaningless to ask such questions as: “Why should we not lie?” We feel that such questions are meaningful because in all discussions of this kind some ethical premises are tacitly taken for granted. We then feel satisfied when we succeed in tracing back the ethical directive in question to these basic premises. In the case of lying this might perhaps be done in some way such as this: Lying destroys confidence in the statements of other people. Without such confidence, social cooperation is made impossible or at least difficult. Such cooperation, however, is essential to make human life possible and tolerable. This means that the rule “Thou shalt not lie” has been traced back to the demands: “Human life shall be preserved” and “Pain and sorrow shall be lessened as much as possible.”

But what is the origin of such ethical axioms? Are they arbitrary? Are they based on mere authority? Do they stem from experiences of men, and are they conditioned indirectly by such experiences?

For pure logic all axioms are arbitrary, including the axioms of ethics. But they are by no means arbitrary from a psychological and genetic point of view. They are derived from our inborn tendencies to avoid pain and annihilation, and from the accumulated emotional reaction of individuals to the behavior of their neighbors.

It is the privilege of man’s moral genius, impersonated by inspired individuals, to advance ethical axioms which are so comprehensive and so well founded that men will accept them as grounded in the vast mass of their individual emotional experiences. Ethical axioms are found and tested not very differently from the axioms of science. Truth is what stands the test of experience.

(Out of My Later Years, pp. 114-115)

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Phil Beaver
on October 18, 2015 at 12:49:39 pm

I KNEW YOU'D SAY THAT!
I KNEW YOU'D SAY THAT!

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nobody.really
on October 18, 2015 at 13:48:01 pm

Perhaps next April 1, we should--just for a day--switch pseudonyms and see who can do the best job as posting at the other.

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Sub Specie Æternitatis
on October 18, 2015 at 15:50:37 pm

Phil,

Your face looks vaguely familiar. Were you by any chance the model for a character that appeared on the cover of a humor magazine for kids circa 1975? Just wondering.

BTW, invoking Einstein as an authority on moral and political questions is a clever debate-stopping move, as his judgment on such matters was presumably impeccable.

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djf
on October 18, 2015 at 21:04:15 pm

DJF, no, I was never a model for anything but wish I could say I was a Mr. Rogers for children in my neighborhood.

Einstein is fascinating in that his religious opinions were never clearly stated, as far as I can tell from the meager understanding I have. However, his 1941 speech (see my post October 16, 2015 at 10:07 pm) does not contain the word "religion," which I find instructive.

"The closest he comes in the passage, "As long as we remain within the realm of science proper, we can never meet with a sentence of the type: “Thou shalt not lie.” There is something like a Puritan’s restraint in the scientist who seeks truth: he keeps away from everything voluntaristic or emotional. Incidentally, this trait is the result of a slow development, peculiar to modern Western thought."

The above passage is not easy to interpret IMO. I have read and re-read that essay since 2011, and have an adaptation wherein I refrain from a word I do not use. My adaptation may be found by googling Physics-based Ethics: Civic Examples. My adaptation has the coldness of a chemical engineer struggling to understand a master.

Einstein's warmth and humility are evident in his essay, and I can't decide which of the last two paragraphs I prefer. I'll quote the second to the last and leave the last for your pleasure from my earlier post.

"For pure logic all axioms are arbitrary, including the axioms of ethics. But they are by no means arbitrary from a psychological and genetic point of view. They are derived from our inborn tendencies to avoid pain and annihilation, and from the accumulated emotional reaction of individuals to the behavior of their neighbors."

Interestingly, this was two years after Einstein warned President Roosevelt that Hitler was developing the atomic bomb.

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Phil Beaver
on October 19, 2015 at 00:59:13 am

Phil,

You're an extraordinarily good-natured guy. Einstein - who, to be serious for a moment, was not, IMHO, a man of any great distinction in the realm of moral and political thought - doesn't deserve you.

Cordially, djf

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djf
on October 19, 2015 at 07:36:19 am

Einstein was--and I say this with all the admiration and affection of a former theoretical physicist--a political and economic imbecile. If Einstein had bothered to learn the basic insights which others in his league had developed over the centuries, surely he could have made a contribution of economics too. But he didn't, so he didn't. His remarks on economics are as worthless as would be, for example, Milton Friedman's remarks on theoretical physics if Friedman had never bothered to learn calculus.

For another example of a great physicist making a fool of himself in economics, see here: http://www.thebigquestions.com/2015/07/29/this-would-be-a-great-illustration-of-comparative-advantage-if-it-werent-such-a-great-illustration-of-absolute-advantage/

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Sub Specie Æternitatis
on October 19, 2015 at 12:06:36 pm

djf,

I appreciate your kind words but can only admit to hard work to overcome my ignorance and to discover my person.

Perhaps two decades ago, I was disturbed by the entire text leading to Einstein's famous quote, "science without religion is lame, religion without science is blind.” Jerry Coyne critiques the context admirably at http://www.newrepublic.com/article/115821/einstein-quote-about-religion-and-science-was-wrong-misinterpreted .

You may notice from my posts--for personal understanding, I select words I feel express my thoughts, and try to share the consequence with other people. Thus, my "process for understanding" could raise a religious person's objections that I had mimicked the process for research and discovery. Please read the 3/22/14 post at understandtheknowledge.blogspot.com.

In the context of the above quote, Einstein confuses "faith" and "religion," as many people do. I claim faith in the objective truth of which most is undiscovered and some is understood. Einstein never reached such clarity, perhaps because he never achieved personal liberty respecting the vagaries of his distraction from physics perhaps due to his focus on the study of physics.

Einstein did not get to read, as I did, Michael Polanyi's thorough perhaps attack on my faith in the recommended book Personal Knowledge, 1958. In his conclusion, speaking of humankind's "awakening of the world" and "ultimate liberation," he writes, and I take liberties in omissions and brackets, "We may envisage . . . a short-lived, limited, hazardous opportunity for making some [personal] progress . . . towards an unthinkable consummation. And that is also, I believe, how a [theist] is placed when worshiping [his god]." Polanyi's faith for Polayni is as valid as my faith for me and the principle holds for Einstein and Francis Collins and Sam Harris--in fact every person, no matter where they are in their quest for the elusive self-discovery or psychological maturity.

For this forum, one hope is to persuade scholars to brutally collaborate on the preamble to the constitution for the USA: address my argument that it is a civic sentence rather than a secular sentence. That is, it offers a voluntary commitment by inhabitants--people bound by the land--to achieve the goals stated therein by collaborating on civic morality, leaving no-harm theistic and other religious moralities to believers. By labeling the preamble "secular," religion has repressed the preamble's civic power, and the consequence is woe. (BTW, Seven Pinker and the Secular Coalition for America ignore my argument, apparently because they perceive too much invested in the word "secular." Perhaps they just think concern for word usage is a personal matter; I fully agree with that, but collaboration can unlock agreement otherwise unrecognizable.)

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Phil Beaver
on October 19, 2015 at 12:51:51 pm

Phil:

You may be interested in this book review which appears on this very site.
An interesting piece.

http://www.libertylawsite.org/book-review/is-it-all-an-illusion/

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gabe
on October 19, 2015 at 14:56:39 pm

Gabe, thank you very much. I liked the review but am not drawn to the book. I just opened Robert Putnam's Our Kids: The American Dream in Crisis, 2015, am a slow reader, and expect Putnam or the friend that recommended Putnam to help my next choice. A couple points from the review:

"Without a Genesis-like Creator specifically placing humans higher with special consciousness, there would be no such idea. Indeed, the whole belief that the world is composed of matter is 'metaphysical speculation.'”

Gray has no excuse for such nonsense, because Matt Ridley's The Rational Optimist was published in 2010. From there, we get the notion that humankind's super awareness is a product of genealogical and hereditary adaption to environments. Some how, particular mutations developed languages and trade and from there cultural evolutions accelerated the power of biological evolutions. Anyone who is focused on going back to before should read Ridley, and that includes Gray IMO.

"Christianity’s illusion presents a 'more truthful rendering of the human situation' and may even be 'the least harmful illusion.' Christianity is anti-tragic given its ideal of salvation in another world but is in this world 'closer to ancient understandings of tragedy than it is to modern ways of thinking.' Yet it, in the end, is an illusion too—indeed the one that started it all."

Authors of such ideas are 1) arrogant, especially with "started it all", 2) ignorant, for example, unaware of Agathon's witness in Plato's Symposium, and 3) intolerant of bodies with minds who think their person is all there is. Plato has Agathon saying that collaboration's greatest power is that it neither allows nor imposes force. (That's my paraphrase.) Also, there's Laozi's 6th century BCE idea, "Things do not get confused; we get confused."

"Today, the world faces a new period of instability as faith in political solutions fades and 'renascent religion contends with the ruling faith in science to replace it.' Civilization implies restraint but 'violence has a glamour that is irresistible.' Social freedom defined as 'mutual non-interference' is a 'rare skill.' That type of freedom is not natural. Practices, such as the rule of law, that have allowed such freedom where it has appeared in the past (mainly in the West), are being compromised or 'junked' altogether."

The passage illustrates how word-bound vaunted modern "thinkers" can be. Everything emerges from physics--energy, mass and space time, including the study of physics, fiction, lies, and ethics.

Religion is a subset of physics in which persons imagine an explanation for reality then develop an intellectual construct or doctrine on that imagined explanation, never bothering to gather evidence for the imagined explanation and always resisting failed elements of the construct. For example, ancient persons imagined the Sun a god and constructed ways to bargain with the Sun; when it did not work out, they did not accept the evidence that the god concept was false. Parallel imaginings resulted in competing doctrines.

And phrases like "social freedom" keep would-be thinkers from focusing on the reality of civic freedom. For example, all over the world, people voluntarily queue to purchase airline tickets. Then they queue to present the tickets for baggage check. Then they queue to enter the aircraft. They are not queuing on social preference, they are queuing on civic morality or civic order. Same thang with symphony tickets and rock-concert tickets and football game tickets.

Civic morality is determined by physics-based ethics. Physics exists and is still emerging, and humankind works to discover the emergences and understand how to benefit from them, thereby determining ethical behavior and policy. Take for example, slavery. Some humans wrote guidance for the master-slave relationship, and codified it as scripture. Thereby, violence and woe were exacerbated. As victim of the 15th century papal bulls arrogating discovery of lands not claimed by a Christian prince and the monopolies on African slave trade, then mimicked by English and other kings, America became a victim of both slavery and the doctrine of discovery. Physics informs humankind that a person cannot own the fruits of another person's labor by force. Physics' lessons about slavery might not have been as hard, at least in this country, without Christianity. Civic morality compels humankind not to defy physics. The rule of law, such as the doctrine of discovery, often defies civic morality. For example, defense of religion, an institution, instead of thought, a civic duty, opposes civic morality.

With focus on candid talk, civics, physics, and collaboration for no-harm personal liberty with domestic goodwill (PD&DG) humankind can establish civic morality.

Gabe, I cannot thank you--praise you--enough for brooking my weaknesses. Collaboration by people of goodwill is fantastic!

This forum can help establish PL&DG in America.

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Phil Beaver

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