Eminent Domain

Wow, you guys have a post for everything. That's why I love your blog.

Thanks for the link.

Well, the three great difficulties, I think are that (1) to propose an amendment guaranteeing privacy would be to concede that there presently is not one, (2) as Robert Bork has pointed out, a broadly-drawn "privacy right to be left alone" stipulation would essentially render virtually all law presumptively invalid, and (3) I don't think it's universally agreed (and certainly I don't agree) that one can get to a right to abortion from a generic right to privacy.

In any event, it must get in line behind my own floated 28th Amendment. ;)

Simon: I definitely agree. I'm just saying that as a generalized idea, I prefer an amendment (some text) to nothing.

The practical difficulties of drafting this amendment are going to be huge. Finding something that will pass is going to be tough. Even if it fails and ends up like the ERA, I think that a long, drawn out debate and discussion about the "rights of privacy" that are in the Constitution or should be in the Constitution would be positive.

I don't know how big of a concession a proposed amendment would be. It seems like people keep trying to hammer this right in general, and the abortion right specifically, into anywhere in the Constitution that they can, whether it's a penumbra, Due Process, or Equal Protection. I think Posner once said that it's a matter of time before someone tries to get the abortion right out of the Takings Clause. It's just blatantly using the Constitution as a means to an end. They care about the result, and it's hard to act intellectually pure when that's all you want.

Bork is right. It would have to be very narrowly written or very cleverly designed (from a legal point of view). The broad language that is found elsewhere in the Constitution will probably not cut it here. Language like that has gotten us into this situation. It would be harder for judges to read other stuff into the language of the new amendment. They can't fall back on that "how can we know the true intent?" cry. We know the intent; we just drafted it.

I don't think that a general right of privacy will give you a right to an abortion either. I think that is one of the specifics that will have to be debated and argued about.

I wouldn't expect any amendment to pass. As stated, I think that the debate itself would be healthy. If anything, it would do much more to legitimize the judicial philosophies of people who don't see a right to an abortion in the Constitution as written. The Left has succeeded in making anyone with an anti-Roe opinion seem extremist. It's a huge sword dangling over the head of many well qualified, potential SCOTUS nominees. This might do a lot to show people that maybe they aren't all a bunch of religious kooks who hate sex. People who are anti-Roe might actually have an intellectual argument against the decision.

I hate the 17th Amendment too.

Andrew: Clause I is really an intriguing piece of writing. The combination of both a legislative and judicial role in this is ingenious. A check and balance... I'm going to think about that for a while (and finish reading the comments in the above Confirm Them post).

And can we include something in there to sever Northern California from the rest of the state?

http://en.wikipedia.org/wiki/State_of_Jefferson

It's not a serious proposal on my part. I just want a state named after Thomas Jefferson.

I think that California's size is also one of the biggest problems concerning the Ninth Circuit and its operations.

At first blush, §1 troubles me a little, as it seems (as I suppose it would have to be) quite vague; I'd worry about unforeseen consequences, and it seems to effectively codify the Sandra Day O'Connor balancing test: because practically every right impinges on someone else's rights, it's an invitation to nineteen part balancing tests.

§IV is a very interesting idea, although I'm not sure how it would interact with Art.IV §3. Explicitly declaring that this amendment - other than within its own terms - will not change that guarantee would probably be a good idea, lest a future court "get creative" with it.

Two more thoughts about the California severance: first, that would deprive California of a land border with Mexico, which may have volatile and unpredictable implications for the immigation debate. Second, if we figure California's population in the 35m area, transfer ten million people from California to Arizona, presumably that means that - as a ballpark figure - California would cede a third of its 53 seats to Arizona - say fifteen seats. This has a drastic effect on the future of the electoral college if Todd Estes' theory is even marginally correct.

Still an interesting idea, though...And not a bad one to float. Every good idea has to start somewhere before gaining prominence. ;)