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The Constitution Is Not Silent


Jonathan, let me put it this way: If the framers meant “public use” to include the seizure of one citizen’s private property for delivery to another citizen, you’ll have to provide some historical evidence to support such a proposition. You can’t. To argue that there’s no history disproving such a conclusion is to ask for proof of a negative. There’s no history proving, for example, that the framers considered interstate commerce to include the personal consumption of wheat, or the personal, medical use of pot. I don’t find any of this very helpful, albeit provocative. The Constitution is not silent about the taking of private property. Therefore, this is not a debate about the Articles of Confederation. State authority exists where the Constitution is silent. That’s not just my opinion. That’s what the Tenth Amendment says. Again, if it’s your position that the incorporation doctrine should be rejected in favor of state governments, then say so. And we can debate that. But saying conservatives argue for judicial restraint and, therefore, should not object to the Court’s twisting of the Fifth Amendment, is off.


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