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Kelo - may the farce be with youFollowing on from the Supreme Court's disastrous ruling in Kelo v. New London, in which the court (speaking through the voice of Justice Stevens) effectively voided the public use clause of the 5th Amendment (yes, that is ultra vires, well spotted!), SCOTUSblog advises the world that: Sen. John Cornyn, a Texas Republican, moved swiftly on Monday to narrow the effects of the Supreme Court’s decision last Thursday that upheld broad government power to seize private property to turn over for profit-making economic development. Cornyn’s new bill, S. 1313, would lay down a congressional definition of “public use,” far narrower than the Court’s constitutional interpretation in Kelo v. City of New London (04-108).The bill's relevant text: It seems preposterous to me that we have reached a stage where the Congress of the United States feels itself required to pass a law which substantively says nothing which is not already in the Constitution, for no reason other than the inability of the Supreme Court to read the text which they have sworn to uphold. The Cornyn bill says "The power of eminent domain shall be available only for public use"; the 5th Amendment says "nor shall private property be taken for public use without just compensation". Spot the difference! I can't help but hark back to Justice Scalia's warning of over a decade ago, in County of Riverside v. McLaughlin, 500 U.S. 44 (1991) at 60-61: The story is told of the elderly judge who, looking back over a long career, observes with satisfaction that, "when I was young, I probably let stand some convictions that should have been overturned, and when I was old I probably set aside some that should have stood; so overall, justice was done." I sometimes think that is an appropriate analog to this Court's constitutional jurisprudence, which alternately creates rights that the Constitution does not contain and denies rights that it does. Compare Roe v. Wade, 410 U.S. 113 (1973) (right to abortion does exist) with Maryland v. Craig, 497 U.S. 836 (1990) (right to be confronted with witnesses, U.S. Const., Amdt. 6, does not)." That the modern supreme court has essentially liberated itself from the shackles of the text is hardly news; that they feel able to so brazenly abrogate an explicit constitutional protection is a little newer, and a little scarier. I have to confess that, in my copy of the Constitution, I do not see any mention of the Supreme Court in Article V, nor any mention of the power to amend the Constitution in Article III. Perhaps Justice Stevens would be good enough to make available his version to the world. Kelo goes wrong four sentences into §III, where, having come painfully close to grasping the point - "it has long been accepted that the sovereign may not take the property of A for the sole purpose of transferring it to another private party B, even though A is paid just compensation" - it then rejects this as a basis for deciding the case. This is as close as Stevens' opinion gets to the Constitution, and thereafter, it never again reconnects with text, tradition, or common sense, even, for that matter. Having dismally failed to demonstrate that handing the land to a private developer is a public use, Stevens suggests an alternative test: "The disposition of this case therefore turns on the question whether the City’s development plan serves a public purpose". In my view, he does not convincingly prove that private employment is a public purpose, either. How is a Pfizer research facility a "public purpose"? Is creating jobs a public service, rather than an economic activity? On the other hand, this is at least consistent with Stevens' previously-expressed view of what employment is; cf. PGA Tour v. Martin, 532 U.S. 661 (2001) (Scalia, J., dissenting from per curiam by Stevens, J.) at §I ¶9.: "By the Court's reasoning, a business exists not only to sell goods and services to the public, but to provide the "privilege" of employment to the public; wherefore it follows, like night the day, that everyone who seeks a job is a customer" (emphasis added). The fundamental problem with Kelo, then, the reason above all else that it is wrongly-decided, is that it is in open collision with the 5th Amendment, and no amount of stare decisis - even if we allow, for sake of argument, that adherence thereto would mandate the result embodied in Stevens' opinion - can ever change that. Respect for precedent cannot justify an unconstitutional result, and in a case where only either stare decisis or the text of the constitution can be sustained, it is the latter which must prevail. Such is the case here. The 5th Amendment says that state governments can take your property for public use; Kelo effectively says that state governments can take your private property for any use. The majority essentially contends that the term "public use" implies no limitation. But consider the text: "nor shall private property be taken for public use, without just compensation." But remove the public use clause, and you are left with "nor shall private property be taken without just compensation" - which still makes sense. The Court therefore suggests that the public use clause is meaningless. Or, as Justice Thomas put it, "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" (Thomas, J., dissenting) (emphasis added). These two propositions cannot both survive; there either is, or there is not, a formal limitation in the 5th Amendment on what the government can do with land under its emminent domain power (q.v. Kelo, O'Connor, J., dissenting, at §II ¶1-2). Justice Stevens says there is not. The Constitution says otherwise, and the Constitution's answer is always right. ...... Post facto: I took note of the practical consequences of Kelo for the litigants in Kelo: the real-world consequences of bad decisions, 8/18/05, and revisited the subject in Kelo, revisited, 1/23/06. I also posted Kelo - may the Farce Be With You over at Prawfsblawg, where Hillel Levin offered this rejoinder: I think there is a strong argument that this is a public use. The property is being condemned under eminent domain in order that the *public* can have good schools; in order that the *public* can have effective policing; in order that the *public* can have clean streets; in order that the *public* can live in a city that isn't falling apart all around them.My response there, reposted here, as follows: In order for Kelo to validly reach the result which it does, one would need to demonstrate that a) the language of the takings clause was not sufficiently clear in and of itself, and b) as a consequence, there was a widespread, longstanding tradition in which the takings clause had indeed allowed the taking of private property by government, only for its grant to private entities. Cf. Rutan, 497 U.S. 62 at 95 (see also, ibid. at n1). Because I do not accept proposition a), it logically follows that, even if proposition b) were shown to be accurate (something which I don't think is adequately shown, in any instance, in the Stevens opinion), the plain meaning of the text, in its original understanding, must control the outcome of a case. Even if, for sake of argument, we set aside the previous notes, it still becomes hard to envisage which circumstances would not constitute a public use under the standard you propose. It seems the wrong way around: it has the feeling that you determined what would be a good answer, and now you're looking for ways in which the 5th amendment can be bent, hammered and contorted into a shape which doesn't preclude that determination (q.v. Rossum, The Textualist Jurisprudence of Justice Scalia). Apropos, although the taking itself is not for public use, the second-degree earnings from that taking may be put to public use. Well, that makes all the difference! "I am persuaded, therefore, that the [New London] procedure is virtually constitutional. Since it is not, however, actually constitutional" (quoting 497 U.S. 836 at 870), a ruling which upholds it is wrongly decided. I should add that such a standard would be far-reaching. If the takings clause can be read to mean that as long as the taking can, by some means, be connected to an eventual-but-abstracted public use (in this case, the increased taxes the city believes will stem from the taking will have a public use, even if the taking itself does not), why couldn't that same line of reasoning allow other provisions to be similarly read? For example, take the commerce clause. In the modern world, what activity is there that does not, in some eventual-but-abstracted manner, impact on interstate commerce and one's ability to participate therein? The eventual-but-abstract relationship test you suggest would turn the commerce clause into a blank cheque thorugh which Congress could excercise the plenary powers which it was so deliberately and clearly denied by the Constitution. Fortunately the Supreme Court would invalidate any such attempt as ultra vires. Oh - wait… Timestamp: 7/1/2005 5:09:00 PM | Cite as: #1 |
    
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