Kmiec v. Rohde Debate

The Fed Soc debate this evening between Prof. Douglas Kmiec and Steve Rohde was a great success and very enlightening. What I found particularly interesting is how both of these great scholars advocate the idea that there is something beyond the text that the constitution strives to reconcile and promulgate. They have very different ideas about what that is, of course, but it makes for very fertile debate. Should our interpretation of the constitution purport to reach to higher ideals, such as natural law, or other moral notions like liberty and equality and privacy? The Declaration of Independence points to these things. Does it make sense to interpret the constitution in light of them today? Or does it lead to judicial activism? ("Judicial activism" is usually mounted as an attack on liberal activists, but there is of course no reason why it would not apply to a conservative judge construing the constitution to his/her favor.) Who is to say what these "natural laws" are, anyway? After all, even Justice Scalia doesn't seem to hold judges in very high regard.

Alternatively, does the constitution stand as the highest authority, independent of any other higher ideals? If there are higher values that are not properly articulated in the constitution, especially in terms of the change in times, should our only answer be something like the originalist, who says that the constitution only applies in accordance with the understanding of 1791? Or do we take the positivist approach and just look to the legislature? But it seems that a positivist approach would find the constitution having less and less meaning as we get further away from 1791, and we would find ourselves becoming more and more a majoritarian society where all our important rights are brought about by vote. Wouldn't this ultimately lead to the evaporation of our beloved constitution?

If anyone knows the answer I'll owe you a Coke.

Mexico Hates Crime Fighters

http://edition.cnn.com/2006/LAW/09/14/dog.bounty/
http://edition.cnn.com/2006/LAW/09/16/dog.bounty.ap/

This isn't a federalism issue, but it's too asinine to resist a comment. It is telling that of all the laws that Mexico would decide to start enforcing, it would go after an American icon committed to justice and decency. For anyone who hasn't seen Dog the Bounty Hunter on A&E, he and his group bring in bail jumpers and along the way offer them encouragement and words of wisdom to try to turn their lives around. Three years ago Dog & Co. went down to Mexico to bring in serial rapist Andrew Luster. But because Mexico doesn't allow bounty hunting unless licensed by them, they issued an extradition request to the Hawaii District Court.

One of Mexico's principal sources of income comes from expatriates sending their earnings back home. Perhaps no copies of Atlas Shrugged were ever sent south of the border, because the Mexican government has apparently no problems with this practice. In fact it encourages the extraction and exportation of our economic resources. While Mexico flouts U.S. immigration policy and subverts our laws, it insists on the enforcement of an asinine Mexican law that protects dangerous criminals.

Do we really need to play along with this charade? Must the teat practice reciprocity with the suckling?

Thoughts on Prop 90

I was very excited to about the "Protect Our Homes" initiative, until I read it. It starts out well enough, tightening the meaning of "public use," employing rules against developer land grabs. It even would require restitutionary compensation, as I promoted in my recent comment in Chapman Law Review. "[T]he property shall be valued at the use to which the government intends to put the property."

But Prop 90 appears to restrict environmental regulation too heavily. Although I am sympathetic to the cause of making land use decisions more libertarian/market-based, I tend to think that environmental regulation is probably the most justified sort of regulation. I've always been intrigued by the concept of making the government pay for every regulation--after all, regulation is basically just a shift in values, and so theoretically we should just identify who derives the value of regulation, and disgorge some of that value to repay the regulatee. But I don't see prop 90 as making a serious effort to make that system work in reality. Californians will continue to demand environmental protections. But I tend to agree with its opponents that Prop 90 could wind up a "tax trap," as large developers would not bear any of the risk that their uses are adverse to the environment: if the public regulates the owner's environmentally harmful use, the public foots the bill for the abatement. Thus these owners are likely to capture the compensation required of environmental regulations.

Of course, this won't trouble free market environmentalists, or environmental skeptics in general. But something else should worry you as well: as soon as an activist Ninth Circuit judge (I've heard there are a few of those) gets a hold of Prop 90, it'll likely be the end of it. And this may create a big backlash.

Lots more on Prop 90 at the Eminent Domain Symposium on Oct. 20.