Teoria do Federalismo e o Poder Executivo: "Bush and Property Rights "

"Executive Order: Protecting the Property Rights of the American People

By the authority vested in me as President by the Constitution and the laws of the United States of America, and to strengthen the rights of the American people against the taking of their private property, it is hereby ordered as follows:

Section 1. Policy. It is the policy of the United States to protect the rights of Americans to their private property, including by limiting the taking of private property by the Federal Government to situations in which the taking is for public use, with just compensation, and for the purpose of benefiting the general public and not merely for the purpose of advancing the economic interest of private parties to be given ownership or use of the property taken.

Sec. 2. Implementation. (a) The Attorney General shall: (...)"

O assunto está comentado aqui por um lewrockwelliano quem vem em defesa de Bush:

"I've seen some libertarian sneering about President Bush's Executive Order: Protecting the Property Rights of the American People. Now there is much for the libertarian to criticize Bush for; but is it so terrible that the head of the executive branch directs the agencies under his control not to take property by eminent domain "merely for the purpose of advancing the economic interest of private parties to be given ownership or use of the property taken"? Sure, the Order has troubling exceptions. But an incremental step in the direction of liberty is not something to whine about, is it?

One such wag complained that Bush issued his decree "merely because he says so". And he also whined that a mere "Executive Order isn't much protection from arbitrary exercises of power. Hunh? What is wrong with the decree being because "Bush says so"? How could it be otherwise. And the complaint reeks of the libertarian centralist notion that only protection from the Supreme Federal Courts is good enough; that judges are somehow exalted and different from other federal employees. I guess Bush should have made the Order applicable to the States, contrary to the Constitution and federalism (which is a code word for racism for libertarian centralists). (...)

And in turn makes them sneer at other means of limiting government power: vertical separation of powers (federalism), and so on. If the President decides not to take property for private use, this is not "good enough"; it must be the courts who say so, darnit.

There's just no pleasing some people."

Nota: Eu concordo genéricamente mas acrescento um senão tal como os antifederalistas (que se opunham nos seus "anti-federalists papers" à Constituição antecipando até a guerra "civil", o que nunca é mencionado pelos apreciadores dos "federalists papers") comentaram a "Bill of Rights", que de resto, representou o compromisso possível com estes. O comentário seria assim:

Se não tivessem escrito coisas como..

"Amendment I: Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.

...isso significava que tais direitos negativos não existiam? Qual o ponto em limitar poderes que não tinham sido concedidos de qualquer forma? E existe um ponto adicional, se determinada amenda desaparece, isso quer dizer que o Supremo deixa de reconhecer o direito que ele anunciava?