Judicial Practice: Starting with Kelo

I got invited to respond over at XT's place to "Marijuana, Kelo, and Constitutional Precedent". He made a comment there that his readers should visit here - and I suggest the readers here should visit there.

As usual, I couldn't say it in a comment - so I am going to say it in a post. Go read his post, and also read Matthew Kell's:

• "Fixing Misperceptions - the Establishment Clause"; and
• "Multitasking; or, Scalia's a Moron"

Then, follow below the fold . . .

Kelo and Raich: These are both very interesting court cases from the standpoint of what powers we wish the Federal government to have vs. the states; what power government should have vs. the individual; and whether we want the Constitution constructed out of existence or for it to be an enduring document changed when the citizens choose to change it through the amendment process. Folks should read both of these cases in their entirety, including opinions and dissents, because much of the future of the Supreme Court rests on these questions - as well as the political philosophy of the country:

• Kelo v. New London

  . . . the majority and the two dissents were really very well-crafted -- readable and persuasive arguments in favor of the positions they were defending. -- Eugene Volokh

• Gonzales v. Raich

It is interesting that Kelo and Raich occurred when I was commenting at TalkLeft, a "very left" blog dedicated to criminal and court issues, while also reading extensively The Volokh Conspiracy - a conservative/ libertarian/ originalist legal blog; and that it was not the "radical right" (actually, the libertarian section of "the right") that was raging against these rulings, but the "radical left". In fact, President Bush's Justice Department weighed in against medical marijuana (of course - not that President Bush is a conservative, but still). In Kelo, the "little guy" (well gals) was being hammered for the interests of a pharmaceutical giant - Pfizer. Both these cases were examples to me at the time of where liberals "oxen were gored" by judicial overreach - rather than all the typical arguments over social conservative issues like abortion and establishment of religion. Certainly, I still hold that view on Raich - but perhaps the gradual accumulation of more and more power farther and farther up the governmental ladder is exactly a liberal ideological bulwark and Kelo is as liberal (modern version) as it gets.

Kelo

Certainly, Justice Thomas is a strict constructionist judge so his dissent may fall within XT's "radical right" -- if it is indeed "right-wing" to believe a document says what it says and should be officially changed to say something else -- and not made "blank by construction (Jefferson)"

Long ago, William Blackstone wrote that "the law of the land ... postpone[s] even public necessity to the sacred and inviolable rights of private property." 1 Commentaries on the Laws of England 134--135 (1765) (hereinafter Blackstone). The Framers embodied that principle in the Constitution, allowing the government to take property not for "public necessity," but instead for "public use." Amdt. 5. Defying this understanding, the Court replaces the Public Use Clause with a " `[P]ublic [P]urpose' " Clause, ante, at 9--10 (or perhaps the "Diverse and Always Evolving Needs of Society" Clause, ante, at 8 (capitalization added)), a restriction that is satisfied, the Court instructs, so long as the purpose is "legitimate" and the means "not irrational," ante, at 17 (internal quotation marks omitted). This deferential shift in phraseology enables the Court to hold, against all common sense, that a costly urban-renewal project whose stated purpose is a vague promise of new jobs and increased tax revenue, but which is also suspiciously agreeable to the Pfizer Corporation, is for a "public use."

I cannot agree. If such "economic development" takings are for a "public use," any taking is, and the Court has erased the Public Use Clause from our Constitution, as Justice O'Connor powerfully argues in dissent. Ante, at 1--2, 8--13. I do not believe that this Court can eliminate liberties expressly enumerated in the Constitution and therefore join her dissenting opinion. Regrettably, however, the Court's error runs deeper than this. Today's decision is simply the latest in a string of our cases construing the Public Use Clause to be a virtual nullity, without the slightest nod to its original meaning. In my view, the Public Use Clause, originally understood, is a meaningful limit on the government's eminent domain power. Our cases have strayed from the Clause's original meaning, and I would reconsider them.

[snip]

Though one component of the protection provided by the Takings Clause is that the government can take private property only if it provides "just compensation" for the taking, the Takings Clause also prohibits the government from taking property except "for public use." Were it otherwise, the Takings Clause would either be meaningless or empty. If the Public Use Clause served no function other than to state that the government may take property through its eminent domain power-for public or private uses-then it would be surplusage. See ante, at 3--4 (O'Connor, J., dissenting); see also Marbury v. Madison, 1 Cranch 137, 174 (1803) ("It cannot be presumed that any clause in the constitution is intended to be without effect") -- Justice Thomas's dissent

but Justice O'Connor (mentioned above), who was also in dissent (writing for Justice Scalia and the Chief Justice Rehnquist), hardly qualifies. More than Thomas, she examines the differences in Midkiff, Berman, and Kelo

Yet for all the emphasis on deference, Berman and Midkiff hewed to a bedrock principle without which our public use jurisprudence would collapse: "A purely private taking could not withstand the scrutiny of the public use requirement; it would serve no legitimate purpose of government and would thus be void." Midkiff, 467 U.S., at 245; id., at 241 ("[T]he Court's cases have repeatedly stated that `one person's property may not be taken for the benefit of another private person without a justifying public purpose, even though compensation be paid' " (quoting Thompson v. Consolidated Gas Util. Corp., 300 U.S. 55, 80 (1937))); see also Missouri Pacific R. Co. v. Nebraska, 164 U.S. 403, 417 (1896). To protect that principle, those decisions reserved "a role for courts to play in reviewing a legislature's judgment of what constitutes a public use ... [though] the Court in Berman made clear that it is `an extremely narrow' one." Midkiff, supra, at 240 (quoting Berman, supra, at 32).

The Court's holdings in Berman and Midkiff were true to the principle underlying the Public Use Clause. In both those cases, the extraordinary, precondemnation use of the targeted property inflicted affirmative harm on society - in Berman through blight resulting from extreme poverty and in Midkiff through oligopoly resulting from extreme wealth. And in both cases, the relevant legislative body had found that eliminating the existing property use was necessary to remedy the harm. Berman, supra, at 28--29; Midkiff, supra, at 232. Thus a public purpose was realized when the harmful use was eliminated. Because each taking directly achieved a public benefit, it did not matter that the property was turned over to private use. Here, in contrast, New London does not claim that Susette Kelo's and Wilhelmina Dery's well-maintained homes are the source of any social harm. Indeed, it could not so claim without adopting the absurd argument that any single-family home that might be razed to make way for an apartment building, or any church that might be replaced with a retail store, or any small business that might be more lucrative if it were instead part of a national franchise, is inherently harmful to society and thus within the government's power to condemn.

In moving away from our decisions sanctioning the condemnation of harmful property use, the Court today significantly expands the meaning of public use. It holds that the sovereign may take private property currently put to ordinary private use, and give it over for new, ordinary private use, so long as the new use is predicted to generate some secondary benefit for the public-such as increased tax revenue, more jobs, maybe even aesthetic pleasure. But nearly any lawful use of real private property can be said to generate some incidental benefit to the public. Thus, if predicted (or even guaranteed) positive side-effects are enough to render transfer from one private party to another constitutional, then the words "for public use" do not realistically exclude any takings, and thus do not exert any constraint on the eminent domain power.

[snip]

Any property may now be taken for the benefit of another private party, but the fallout from this decision will not be random. The beneficiaries are likely to be those citizens with disproportionate influence and power in the political process, including large corporations and development firms. As for the victims, the government now has license to transfer property from those with fewer resources to those with more. The Founders cannot have intended this perverse result. "[T]hat alone is a just government," wrote James Madison, "which impartially secures to every man, whatever is his own." For the National Gazette, Property, (Mar. 29, 1792), reprinted in 14 Papers of James Madison 266 (R. Rutland et al. eds. 1983).

Richard Epstein, a law professor at the University of Chicago, traces the beginning of this trend back 50 years and concludes:

Any comprehensive public project will produce some benefit for someone, so that--as Justices Sandra Day O'Connor and Clarence Thomas stressed in dissent--his test always allows the legislature to gin up some rationale for taking public property for just compensation (which alas falls far short of making the individual landowner whole: legal, appraisal and moving costs, for example, are systematically ignored). But the slightest bit of reflection should have shown just how the new public use cases have migrated from the old mining cases, or even under the Hawaii statute, which did not displace sitting tenants.

In the present case, Susette Kelo and her fellow plaintiffs have not tried to extract some unconscionable gain out of some sensible business venture. They have no desire to sell their homes at all. At the same time their subjective losses have been enormous. It was a perfectly sensible line for the court to say when subjective values are high, and holdout problems are nonexistent [note: no particular use for this property was listed in the renewal plan - it was open and unknown], the requisite public use is not present.

The court could arrive at its shameful Kelo ruling only by refusing to look closely at past precedent and constitutional logic. Courts that refuse to see no evil and hear no evil are blind to the endemic risk of factional politics at all levels of government. And being blind, this bare Supreme Court majority has sustained a scandalous and cruel act for no public purpose at all.

In "Government Responses to Kelo", Todd Zywicki links a couple of other folks keeping track of the post-Kelo fallout and cites two examples:

Overland-based THF Realty wants Arnold to use eminent domain, if needed, to take over about 45 homes and business to make way for a new strip mall on 38 acres southwest of Interstate 55 and Highway 141. Critics have denounced the $55 million project as corporate welfare, because the developer wants $21 million in tax-increment financing.

and

Newark officials want to raze 14 downtown acres in the Mulberry Street area to build 2,000 upscale condo units and retail space. The Municipal Council voted against the plan in 2003, but then reversed its decision eight months later following re-election campaigns in which developers donated thousands of dollars. Officials told the Associated Press that the Mulberry Street project could have been killed if the U.S. Supreme Court had sided with the homeowners in Kelo.

A final perspective from Orin Kerr:

1. The opinions in Kelo remind me a lot of the opinions in Gonzales v. Raich. The Court has once again reaffirmed the academic common wisdom -- in Raich, that the commerce clause power is virtually limitless, and in Kelo, that almost everything is a public use. Both cases involved the same type of line-drawing challenge, in which the Constitution requires a line to be drawn but it's pretty hard to draw such a line in practice. (It's difficult to distinguish interstate commerce from intrastate commerce and commerce from non-commerce, and it's difficult to distinguish public use from private use.) In both cases, the Stevens majority opinion recognized that a line existed in theory, but put it so far out of the way that it won't bother anyone.
2. Is it just me, or does Justice O'Connor's dissent have the feel of an opinion that started out as a majority draft? This is just speculation, and perhaps idiosyncratic speculation at that, but I wonder if she had a majority at conference and lost Justice Kennedy along the way.
3. The next time someone insists that conservatives like Justice Thomas will do anything to defend corporate interests against the powerless -- and particularly against powerless racial minorities -- feel free to point them to Justice Thomas's eloquent dissenting opinion in Kelo. So much for that idea.

Other resources on Kelo:

• The Volokh Conspiracy's "chain" on Kelo
• A group blog on Kelo at SCOTUSBlog
• Kelo at TalkLeft

So, what kind of government do you want?

Part II: Gonazales vs. Raich coming