12/09/2004

The New Bill of Rights — John Ryskamp

The amicus curiae briefs submitted to the US Supreme Court to date, in support of the petitioners in Kelo v. New London, have focused on arguments which lost in other courts. In the view of John Ryskamp, of Immigration for Professionals, they are trying to raise the level of scrutiny of eminent domain proceedings but "the only way to do that is to elevate scrutiny of the facts in the eminent domain proceeding itself. In Kelo, this is housing." And, Mr Ryskamp explains how to do that in the article: Kelo v. New London: Deciding the First Case Under the New Bill of Rights.
Abstract:
http://ssrn.com/abstract=562521

Full article:
http://papers.ssrn.com/sol3/Delivery.cfm/
SSRN_ID606262_code239905.pdf?abstractid=562521&mirid=1
.


Mr Ryskamp believes that this issue hinges on "the essence of the Founders’ intent respecting the Constitution," as voiced by James Madison, sho stated that the Constitution prevents "every assumption of power in the legislative or executive." According to Mr Ryskamp, before Justice Oliver Wendell Holmes' tenure, "eminent domain and the commerce clause and lots of other clauses of the Constitution DID enjoy high scrutiny — and the Court used that scrutiny to strike down every single piece of social legislation they could. Holmes said the Court had to get out of the policy business, and lower the level of scrutiny so social legislation could pass Constitutional muster. This took a long time to accomplish, but it's where we are now, and no Court is going to go back and undo Holmes' work." That's why, he adds, it's necessary to emphasize the conflict between eminent domain and other important facts — it's the only way to win on this issue.

Mr Ryskamp supports this contention by noting that the Kelo petitioners are homeowners, who "are insisting that their opposition to the eminent domain action is not based on the 'private use' of the property; their opposition is based on the fact that the housing involved IS their housing. In short, they think there is some Constitutional reason to distinguish housing AS housing."


John Ryskamp: philneo2001@yahoo.com