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  • Level: GCSE
  • Subject: Law
  • Word count: 4975

Comparative Constitutionalism

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Comparative Constitutionalism The United States Constitution protects property rights by prohibiting the taking of private property for public use by the federal and state governments without the payment of just compensation1. According to the United States Supreme Court, the Takings Clause of the Fifth Amendment is intended "to bar Government from forcing some people alone to bear public burdens which, in all fairness and justice, should be borne by the public as a whole."2 As the Court has noted, a "strong public desire to improve the public condition is not enough to warrant achieving the desire by a shorter cut than the constitutional way of paying for the change."3 One of the most common assumptions about the United States Constitution is that it protects negative rights. Yet the International Covenant on Economic, Social, and Cultural Rights, as well as many foreign constitutions, require governments to affirmatively provide socio-economic necessities. This opens up the prospect of constitutional review requiring the state not just to protect the negative freedoms associated with the individual's private sphere against encroachments from whatever provenance, but now to enact positive measures to ensure a minimum level of social protection, including (indeed especially) where the threat to that protection originates from non-state actors. Consent is a powerful exception because it allows law enforcement officials to conduct searches absent probable cause or even reasonable suspicion.4 Given the broad sweep of this power and the magnitude of the plan's impact if implemented in the public housing developments throughout the nation, it is essential to carefully scrutinize whether blanket consent for police searches given in the context of a public housing lease is truly voluntary. Another concern related to separation of powers is that the American constitutional tradition presumes that courts have an easier time enforcing negative political and civil rights rather than positive socio-economic rights. It seems simpler for a court to order the government to stop interfering with speech than for a court to determine how much funding is needed for secondary education. ...read more.


is to protect, not to destroy, rights of property."13 No penalty was inflicted other than dissolution and the prohibition of acts violative of the statute. So far as constitutional guaranties are concerned, the most strenuous advocate of property rights could scarcely ask for anything more. Nevertheless, the extent to which the Supreme Court conserves the rights of property is easily exaggerated. The Dred Scott decision did not prevent the overthrow of slavery, and moreover without compensation. On the contrary, it hastened its downfall and proved to be the one thing from which the slave power might well have prayed to be delivered. Much comfort was extracted by an influential portion of the property-owning class from the income tax decision in 1895, but the cost of what was gained from that decision has seldom figured properly in the account. Probably no decision of the Supreme Court since the Civil War has excited so much dissatisfaction or fallen so flat. In the opinion of many the court as now constituted would find a way of upholding a similar measure even though the constitution had not been amended. To save the face of the court was the strongest argument for proposing the income-tax amendment. But the decision of 1895 fanned the fires of social discontent. It unmasked the motives of those opposed to an income tax. On the one hand, are those well able to bear the burden of taxation upon whom a properly administered income tax would to a considerable extent rest. On the other hand, are the beneficiaries of protection who fear that an income tax will deprive them of one pretext for the maintenance of the tariff. The glaring injustice of any income tax apportioned among the several states according to population, in conformity with the court's decision, made such a tax impracticable. One effect was to discredit the court itself. Another fact had a similar effect. ...read more.


of a small and selfish minority who wish to gain the right to pollute at the expense of the general public27 and that the costs attached to such legislation could prove disastrous to local and state governments. They argue that land use regulation is necessary to force individual property owners to internalize the costs associated with their actions and to prevent such owners from forcing the public to bear the costs associated with decisions that may benefit the individual but harm the public. Opponents of property rights legislation have come from various segments of society, though environmentalists and land use planners are among the most organized and vocal of the anti-legislation movement.28 It is unclear to what extent such legislation enjoys popular support. Property rights statutes enacted by the Arizona and Washington legislatures were overturned by popular referenda. Whether property rights legislation is the outgrowth of pressure from self-interested private property owners or some larger ideological rejection of the role of modern government in the economy, the end result has been a continuing (but so far unsuccessful) series of proposals for legislative reform at the federal level, and a growing number of enacted state measures. Property rights legislation has been proposed in every state since 1991 and over one-half of the states have enacted property rights protection measures of one type or another. 1 U.S. CONST. amend. V ("nor shall private property be taken for public use, without just compensation"). The Supreme Court has determined that the Just Compensation Clause of the Fifth Amendment applies to the states through the Due Process Clause of the Fourteenth Amendment. See Chicago, B. & Q. R.R. v. City of Chicago, 166 U.S. 226, 235-41 (1897) 2 Armstrong v. United States, 364 U.S. 40, 49 (1960) 3 Pennsylvania Coal Co. v. Mahon, 260 U.S. 393, 416 (1922) 4 LaFave, supra note 5 1, at SS 8.1 n.5.1 (2d ed. Supp. 1995). 5 Harvard University Joint Center for Housing Studies, The State of the Nation's Housing 20 (1995). Id. ...read more.

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