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**yovbQVpD** · 02-18-2006, 12:09 AM

Obvious examples are the Kelo case which presumed that governments could take property for PRIVATE usage instead of the public usage allowed by the 5th amendment

Kelo is one of the few cases where I agree wholeheartedly with scalia. Kelo, however, is not a case of judicial activism since the majority decided the court has no right to second guess the legislature on the meaning of "public use". Scalia concurred with O'Connor's dissent which said

"But were the political branches the sole arbiters of the public-private distinction, the Public Use Clause would amount to little more than hortatory fluff. An external, judicial check on how the public use requirement is interpreted, however limited, is necessary if this constraint on government power is to retain any meaning"

so I suppose if one side in this were to be labeled "judicial activism" it would be the minority.

02-18-2006, 12:09 AM	#10
yovbQVpD Join Date Oct 2005 Posts 401 Senior Member	Obvious examples are the Kelo case which presumed that governments could take property for PRIVATE usage instead of the public usage allowed by the 5th amendment Kelo is one of the few cases where I agree wholeheartedly with scalia. Kelo, however, is not a case of judicial activism since the majority decided the court has no right to second guess the legislature on the meaning of "public use". Scalia concurred with O'Connor's dissent which said "But were the political branches the sole arbiters of the public-private distinction, the Public Use Clause would amount to little more than hortatory fluff. An external, judicial check on how the public use requirement is interpreted, however limited, is necessary if this constraint on government power is to retain any meaning" so I suppose if one side in this were to be labeled "judicial activism" it would be the minority.
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