by Greg Walcher, E&E Legal Senior Policy Fellow
The Daily Sentinel
The 1998 final report of independent counsel Ken Starr’s investigation of President Clinton led to the first impeachment since 1868. But today the report is better remembered for Clinton’s response, buried in footnote 1128, “It depends on what the meaning of the word ‘is’ is.”
Pundits made fun of it, but there was nothing new about politicians playing with definitions. What constitutes a “navigable” water? What’s the difference between “threatened” and “endangered?” What is “social justice?”
Definition disputes are as old as politics. If the founders knew generations would argue about the Second Amendment, they might have defined it more clearly. They certainly would have done so with the Fifth. Writing that private property shall not be “taken” for public use without just compensation, they had no idea what government might eventually see as public use.
Today, local governments take property from one private owner and give it to another. They also take away the value of property by prohibiting its use, without taking the deed. The latter is called a “regulatory taking,” as distinguished from a “physical taking.” The founders would have recognized no difference in the affront to private property rights. Their descendants have argued about it for generations, and courts are all over the map.
