Property-Type Constitutional Question
I posit a theory: if the Emancipation Proclamation happened today, would the plantation owners have had a suit against the federal government under a taking theory?
Should they have had a claim in 1865?
Should they have had a claim in 1865?
5 Comments:
I'm not touching that with a thirty-foot pole...
You're scared of sounding like a racist? I wouldn't worry about it too much.
Here's my analogy: if Congress today passed a law making it illegal to own or raise cattle, and that all cattle would be destroyed (and therefore could not be sold), justifying it on health and environmental bases, this would be a per se regulatory taking. My question is, since prior to 1865 slaves were legally equivalent to cattle, isn't the theory (in a purely legal sense, not a moral one) exactly the same thing? The Supreme Court had upheld the ownership of slaves, so it's not like they were holding any property illegally (as in the case of marijuana growers).
Does it make a difference that the "taking" was on constitutional grounds? Or that it was a spoils of war kind of thing (even though that would be illegal in international law today, I think)?
More than anything, I intended this as simply an interesting thought to mull over.
Ok...I'll bite :)...
No, it would not be a taking because there would be no "just compensation"...The newly freed slaves would have no value other than the priceless value all humans have...so even under the law there would be no measure for compensation and without that part of the claim the claim would not be a proper taking under the Constitution...
I think...
So is it that they have no value, at least as slaves, or is it that they are invaluable and therefore there is no measure of the compensation?
I think I need to review my notes from last year.
I'm going to go out on a limb and say that human life is invaluable...
:)
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