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Where are they?:
If you're looking for the early word on today's Supreme Court decisions, my advice is to click here early and often. If you're looking for links to the new opinions, my sense is that Howard usually posts links to the new decisions first, usually by about 11 am east coast time.

  UPDATE: SCOTUSblog reports:
Splitting 5-4, the Supreme Court ruled on Thursday that a local government may seize private property for purposes of profit-making private development, declaring that this constitutes a "public use" under the Constitution. (Kelo v. New London, 04-108).
  No word on whether they simultaneously announced the seizure to be in "interstate commerce." But I would check the footnotes just in case.

  ANOTHER UPDATE: According to the AP, the line-up was 5-4 with Kennedy joining the left-of-center Justices. In an echo of Gonzales v. Raich, Stevens wrote the majority, and O'Connor wrote the dissent. I haven't read the opinions, as they haven't been posted online yet, but Kennedy's vote comes as a surprise to me.

  ANOTHER UPDATE: The Kelo opinions are here. Justice Kennedy filed a concurring opinion, and Thomas filed a dissent.
ThomH (mail):
Wow. Disappointing to me, but not surprising.

I'm curious as to how many dissents were issued in Kelo. The four Justices siding with Kelo, I'm guessing, were Scalia, Rehnquist, Thomas, and O'Connor?
6.23.2005 11:49am
Fishbane:
In other news, splitting 6-3, the Supreme Court ruled on Petember 11th that harvesting organs was a legitimate state interest, and that strict scrutiny governed overruling anything any government agency wanted, any time. Now, a word from our sponsors: Kraft; the choice of a new Congress!
6.23.2005 11:50am
GMUSL 1L (mail):
What an awful decision. I feel like crying. Apparently Traynor was right, and words really don't have any meaning, at least to those who want an all-powerful government.

As an aside, I really don't know what the Democrats are concerned about with Supreme Court nominations, having gotten Warren, Brennan, Burger, Blackmun, Stevens and Souter all appointed by Republicans. So I guess we have Presidents Ford and Bush (I) to thank for today's decision.

If they just stood aside, the Republicans would gladly hang themselves with their own rope. See Gonzales, Alberto.
6.23.2005 11:55am
smoothjbflavor (mail) (www):
Words cannot describe how heart-braking this is. This should not even be a political issue.

One step closer to Communism this is. I say this not out of hyperbole but in all seriousness. Taking something as precious as someone's home in order to line a developer's pockets is as an important line to be cross on the way to totalitarian tyranny as anything else.

Let's sacrifice everything on the alter of utilitarianism. I am certain that there are five people dying out of a need of a different organ. Let's kill a healthy person in order to help them out. I mean, five people living is better than one person dying, right?
6.23.2005 12:06pm
Lawroark (mail) (www):
Maybe we of the libertarian sort should campaign for passage of an amendment protecting homes from private takings. You know, a real amendment that protects liberty. Protect Homes, Not Flags. That kind of thing.
6.23.2005 12:18pm
mike:
I guess now it is only a matter of time in those jurisdictions where a smoking ban was defeated by the electorate that the city government will decide that a non-smoking business is a public good versus a smoking business and seize the local tavern to give that location to a TGI Fridays.
6.23.2005 12:21pm
johnnyblog (mail) (www):
Would an amendment be necessary or would a simple federal law be enough? Could this go under a way for Congress to be ensuring that people have true due process rights when being deprived of property?
6.23.2005 12:33pm
ThomH (mail):
This decision has me pondering. Libertarians have lost three takings cases and an interstate commerce case at the Supreme Court this term.

Sometimes I wonder if taking these cases all the way to the Supreme Court ends up doing more harm than good. For instance, pre-Kelo, there was a split among the states over whether "economic development" could be a valid public use. Now we have a Supreme Court decision indicating that it is. (Of course, I suppose states can still interpret the takings clauses in their own Constitutions as they wish, but a Supreme Court ruling is pretty strong authority for the government to be able to cite).

And pre-Raich, as least there was some uncertainty as to whether the Feds could go after medical marijuana users/producers in California. That uncertainty might have restrained the Feds pre-Raich (this is pure speculation on my part), but now that uncertainty is gone.

So if libertarians don't seem to have the votes at the Supreme Court, might it be a better idea to simply not bring the cases that far?
6.23.2005 12:34pm
Anthony Sanders (mail):
Wait, stop press, continue no further until you read Kennedy's concurrence. As with the above commentators, when I heard the news an hour ago I was deeply saddened and horrified. However, although this is a bit of a silver lining, Kennedy's concurrence emphasises that he signs onto the Court's opinion only because he views the "rational basis" test Stevens applies as stricter than the deferential rational basis of Lee Optical, et al. Also, in words that will remind everyone of his concurrence in the Pennsylvania redistricting case last year, Kennedy pontificates that in other cases a stricter review, perhaps even review with a presumption of unconstitutionality, might be warrented in other Public Use cases.

Therefore, cases such as the Institute for Justice's in Ohio (see the "X marks the spot" article at www.ij.org) might still see the government lose because it is more obvious that the takings are occurring to benefit a private developer. Defenders of property rights, take a breath, it might not be so bad (although I did say "might").
6.23.2005 12:34pm
ThomH (mail):
I thought we already had a takings amendment -- the Fifth one! (But the Supreme Court seems to disagree...)
6.23.2005 12:35pm
Lawroark (mail) (www):
I don't know, Anthony. Kennedy's opinion suggests strongly that the motive of the government that is doing the taking is the deciding factor. All of the governments that are doing the takings profess public motives. All of them hire consultants that give them the analysis they need to justify it as serving the public interest. And every judge will have adequate evidence before him to suggest a rational basis for concluding that the taking is for the public interest. But shouldn't there be a difference between something being in the public interest, and something being a public use? Kennedy doesn't sense any difference.
6.23.2005 12:43pm
Christine Hurt (mail) (www):
What is "left-of-center" about taking people's homes in order to build a mall and generate more tax revenue? I'm going to turn in my "left-of-center" card. Now, taking a shopping mall to build a public park -- that's "left-of-center."
6.23.2005 12:45pm
Brain Droppings:
In discussing Kelo back in February, I posited the following question on many blogs, but did not get one response. What if the economic decline of New London had continued and the economic condition of the City had gotten so bad that in order to pay for the city services (i.e. fire, police, road construction, snow removal, etc.) the City raised taxes 200%. If the Kelos could not afford to pay those taxes and the City foreclosed, would that be o.k.?

Unfortunately, Kelo is not very well reasoned. The court has once again failed to clearly address the nature of real property. There is no discussion of the externalities of real property or the public goods that all real property relies upon for it to be put to use (i.e. what good is real property if there isn't a public road to get to it).

Finally, there is no discussion by the court of individuals' responsibility in our society to act reasonably when using their property.

But the blame doesn't fall only on SCOTUS. Municipalities frequently do a very poor job of justifying/explaining the need for redevelopment.
6.23.2005 12:47pm
Chris Lansdown (mail) (www):
Christine,

Can you clarify? Are you saying that taking homes in order to build a mall and generate more tax revenue is not just a little left of center, but outright left-wing, or are you saying that it's not properly on the left/right dichotomy, but rather the authoritarian/libertarian dichotomy?

If the latter, the problem is that being left-wing virtually requires one to be authoritarian (since the desired left-wing behaviors don't occur naturally in the population, they must be induced, and as history shows, with great effort), thus left can be used as shorthand for authoritarian, though the reverse isn't true (there are authoritarian rightists, but rightism doesn't require it).
6.23.2005 12:51pm
johnnyblog (mail) (www):
The funny thing is that in the long run all this does is retard economic development. When any small business can be uprooted and removed based on the needs of some larger business that promises some short term gain in jobs, the risks of opening up a business increase. Higher risks means less new economic activity which then leads to less economic growth.

How is that Poletown factory doing by the way? Public offficials are fooling themselves if they think that businesses that have no loyalty to a town will be more likely to increase long-term economic growth than long-standing local small businesses who have less incentive to leave.
6.23.2005 12:56pm
Lawroark (mail) (www):
johnnyblog, it would probably take an amendment, although perhaps Congress could restrict use of eminent domain through its Commerce Clause power. Surely the Supreme Court would uphold that.

Draft amendment at http://lawroark.blog-city.com/protect_homes_not_flags.htm

Revisions to the proposed amendment are welcome in the comments.
6.23.2005 1:02pm
johnnyblog (mail) (www):
Chris,

I completely agree that this is a libertarian/authoritarian dichotomy at play here. For whatever reason, though, Democrats are becoming more likely to support abusive takings in support of higher tax revenue.

For example, on the New Jersey shore houses that likely would have a value of a million on the open market are being taken by Democratic mayors for only 100K at times in order to put up large condos for friendly developers. (Apparently the FBI is actually looking into the corruption here, but that's besides the point).

This is all done under the guidance of Democratic mayors and town boards in most places. I wonder if maybe this is just a natural thing that springs out of the pressure to keep taxes low but also provide services that people like. I think that perhaps there are more Democrats on the side of this because they control more city governments.

I do not know where the political support comes from in New London moves specifically, however.
6.23.2005 1:02pm
mikem (mail):
This is an outrageous decision. The constitution is just a bump in the road to federal judges who will simply 'translate' citizen rights away.
6.23.2005 1:05pm
mikem (mail):
This is an outrageous decision. The constitution is just a bump in the road to federal judges who will simply 'translate' citizen rights away.
6.23.2005 1:05pm
johnnyblog (mail) (www):
Lawroark,

It would indeed be nice to have an amendment enshrining protection for property rights in the consitution. However, in the meantime, would it not be good to have a simple federal law attempting to address this? Should the Supreme Court nullify it, at least it would take awhile to do so and would give more time for a popularly supported amemendment to get support throughout the state legislatures.

My main concern is that the media will not give this case the importance it deserves and so the public outcry will be limited. Without strong, sustained public outcry I fear that any legislative efforts to correct this decision will wither on the vine.

I mean you talk to most people on either side of the political spectrum and they become outraged when they consider that this means that their homes can be taken from them based on the whims of some well-connected, private developer. The problem is awareness, pure and simple.
6.23.2005 1:07pm
Dennis J. Tuchler (mail):
The next step is, of course, the legislature, where the debate over public interest in urban redevelopment vs private interest in preserving property rights (and perhaps reaping hold-out rent) is best worked out.
6.23.2005 1:19pm
Wade Beltramo (mail):
The characterization of Kelo as a Democrat versus Republican decision has left me scratching my head. Many, many, many Republicans supported the respondents (the City of New London).
6.23.2005 1:19pm
Thief (mail) (www):
People ask me why I'm a strict constructionist. Does this answer your question? (I'm sorry, it's just that I'm reading Steven's opinion, i.e. "did the constitution say 'public?' Well, whatever it said, we think it says just the opposite..." and I get the overwhelming urge to "mail" him an unabridged Oxford English Dictionary via catapult...)

I may be wrong on this, but I'm guessing all this means is that the Constitution does not prohibit states from using eminent domain for any reason as long as it meets the "public purpose" test fig leaf. Do y'alls think that state/federal laws defining/limiting what is and isn't a "public use" would a) solve the problem, b) pass muster with the Supreme Court? (Also, do state constitutions give state gov'ts eminent domain power, or is it all from the Federal Constitution?)
6.23.2005 1:23pm
Christine Hurt (mail) (www):
Chris, I know that people right of center like to characterize liberals as being supportive of big government for any purpose, but if that's true, I'll have to quit characterizing myself as a liberal. I believe that the government has the duty to step in and remedy wrongs, provide a safety net, and spur opportunities for human flourishing. I'm not sure where big shopping malls fit in there. I thought Democrats rallied against being beholden to huge corporate interests. What is this? Why would a Democrat/liberal support Kelo? Maybe you're right -- maybe this question is off the political map.
6.23.2005 1:32pm
Chris Lansdown (mail) (www):
Does anyone think that the supreme court might take the next logical step and conclude that other sorts of property can be taken, e.g. corporations? Have the government seize all of the oustanding shares of a corporation and then sell them to someone else who will run the corporation better?

It seems to me that a little extra flexibility here could yield very large returns of government power.
6.23.2005 1:33pm
Wade Beltramo (mail):
Thief,

The power of eminent domain comes from the States. In fact, this ruling may not even have much effect in some states because the states don't allow eminent domain to be used in the way it was used in CT.
6.23.2005 1:36pm
GMUSL 1L (mail):
I bet that any state "providing single-payer healthcare would have a substantial "public purpose" in taking my 2nd kidney so they wouldn't have to provide the continuing expense of dialysis.
6.23.2005 1:45pm
david blue (mail) (www):
A profoundly disappointing decision (and I proudly call myself a liberal). Kennedy's concurrence is a modest improvement over the majority opinion, but if he were serious he would have concurred only in the judgment, thereby turning his heightened rational basis review and its emphasis on benefiting identified entities into the Court's controlling rationale. Why he didn't do that is beyond me. Does he lack the courage of his supposed convictions? Gee, d'ya think?
6.23.2005 1:50pm
Robert Schwartz (mail):
I am OK with this one. It is in the category of a stopped clock is right twice a day.

In my view the theory of incorporation of the bill of rights into the 14th Amendment is a crock. Therefor, in my view, the takings clause does not apply to the states and the judgment in Kelso is correct for the wrong reason.

If the condemnor had been the Federal Government, I would have thought the judgment wrong. There the takings clause should be read in conjunction with Art. I Se. 8. The only provisons of that section which allow the Federal government to acquire properties are:

"To establish Post Offices and post Roads;

"to exercise like Authority over all Places purchased by the Consent of the Legislature of the State in which the Same shall be, for the Erection of Forts, Magazines, Arsenals, dock-Yards and other needful Buildings;"

Which define the public uses referred to in Amend V.

"nor shall private property be taken for public use without just compensation."
6.23.2005 1:51pm
Wade Beltramo (mail):
Christine,

I am confused as to why you think there aren't Democrats/liberals who won't like this decision? In New York City, community (Democratic) activitists are dreading this decision because it supports proposed plans to build a new basketball arena in Brooklyn, which will take out many existing homes.

And as a general rule, these types of eminent domain proceedings take property from the poor and middle class individuals (traditional Democratics supporters) and give it to large companies/corporations (traditional Republican supporters). I admit that the last sentence is a gross generalization, but it rings with some truth to the fact that this is not a Democratic versus Republican decision.
6.23.2005 1:51pm
jallgor (mail):
It's true that the power of eminent domain is ultimately with the states but this decision gives the states more leeway on how they define "public" purpose. Many states do allow eminent domain to be used the way it was in CT and some states didn't allow it before because they thought it was unconsitutional. Similar projects are taking place all over the country including the building of a new Nets stadium in Brooklyn. Don't think this decision won't embolden developers and politicians everywhere.
6.23.2005 1:54pm
Todd Kincannon (mail):
The best way to fight the decision would be for state legislatures to pass laws restricting the use of eminent domain by the state (and, of course, the cities and counties in the state). Better yet, but harder to achieve, would be state constitutional amendments along those lines.

The Supreme Court today only ruled that states have this broad power of eminent domain. States are free to restrict themselves as to the use of this power and hopefully will. But it's still a terrible decision.

And I was so happy when Poletown was reversed.
6.23.2005 1:59pm
Gene Vilensky (www):
Christine,

Why would Democrats support this? Umm... you tell me why Ginsberg, Stevens, Souter, and Breyer voted for New London? This fits in with liberal judicial philosophy because liberals have to define "public good" very broadly in order to justify things like economic regulations. I don't think that the liberals on the Court really wanted to vote against Raich and Kelo, but figured they had to in order to keep the whole edifice of SC decisions that justified the liberal welfare and regulatory state in tact. Voting for Raich would have required overturning Wickard, one of their favorite decisions. Voting for New London would have required a pretty robust view of public property and narrow view of "public good."

Why do you think that Schumer, Durbin, et al. are hysterical about potential Republican nominees who might overturn the various New Deal precedents (most of which were decided on flimsy grounds)? Some of those cases essentially give unlimited government power, and the Left still wants to maintain them because the ends of economic regulation justify the means of hurting the cancer patient and the family that has lived in the same home for 100 years.
6.23.2005 2:17pm
AndrewB:
And whose grinning mug did AP/Yahoo choose to portray next to the headline "Supreme Court Rules Cities May Seize Homes"?

Scalia's. Even though he dissented.

That's sloppy at best.
6.23.2005 2:18pm
Kevin Murphy (mail) (www):
Hey, maybe this would be better than bussing as a means towards integration. Just condemn every 10th house and resell them at a discount to the underrepresented minority members of choice.
6.23.2005 2:21pm
Eddleman (mail):
The reactions here are puzzling to me. I get the distinct sense that much of the opposition isn't really to Kelo but to the Fifth Amendment itself, which clearly permits the taking of private property for public use. The only real issue in Kelo is not "what's a public use?" but "who decides what is a public use?" The Supreme Court just said "Not the courts." I thought conservatives liked it when the court allowed the people's duly elected representatives to do their jobs.

Everyone, I think, would agree that the courts must exercise some minimum level of review to ensure that eminent domain isn't exercised solely for the private benefit of individuals. But to have the courts exercise substantive review of what elected officials may or not conclude is a "public use" runs contrary to everything I thought I knew about conservatism, never mind about post-Lochner jurisprudence.
6.23.2005 2:28pm
Bostonian:
Eddleman, then you don't understand the role of property rights.

Property rights are the core on which all other rights depend. Property rights have been steadily eroded for decades. This might not have happened if they were called out specifically in the Bill of Rights, as many believe they should have been. (Then again, the fascination with socialism would have done its damage anyway.)
6.23.2005 2:34pm
Lawroark (mail) (www):
Eddleman, if the question is who decides what "public use is," isn't the only reasonable answer that the Courts do? "Public Use" is a constitutional term. Isn't the Supreme Court the ultimate interpreter of the Constitution?

State legislatures may decide whether to exercise the power to take property for public use. Courts don't dictate when this power should be exercised. But courts should determine if this power has been exceeded.

I don't believe that most conservatives are in favor of overturning Marbury v. Madison.
6.23.2005 2:45pm
johnnyblog (mail) (www):
The point is that the public use justification has been abused, not that it can never be used. Construing public use to include increased tax revenue or the creation of jobs basically makes the idea of private property meaningless.

Pretty much every piece of property could be improved in some way to increase its value and therefore the tax revenue coming from it. Any conversion of residential use to commercial use supposedly creates job and even residential to residential creates construction jobs.

The traditional viewpoint of public use meaning a public good like roads, bridges, schools, etc. is a far safer standard. Going further and saying that anything that can be twisted into benefitting "the public" puts it any government sanction theft into play.

Basically if you are not using property in the way that the current government in a locality likes or whose friends like, then you better get out of the way.

At first I did not view this a right/left decision, but the antagonism towards private property some on the left side of the spectrum seem to be displaying here makes me pause.
6.23.2005 2:45pm
Wade Beltramo (mail):
Just as a point of clarification for those who think that this is a Democrat vs. Republican issue, check out the discussion at Daily Kos
6.23.2005 2:51pm
Eddleman (mail):
Bostonian,

I don't dispute the importance of property rights as a bulwark of liberty and other rights. I've read and enjoyed my Hayek, same as you. I just wonder where, precisely, that importance is reified in the Fifth Amendment or anywhere else in the Constitution. The historical precedents are (contrary to common opinion, I think, at least among conservatives) quite split on this issue: in the decades immediately following the Founding, the Supreme Court not infrequently permitted public purposes to override private property rights, often declaring that "the legislature is properly the guardian of the public interest." The notion of property rights as some sort of talismanic absolute is as historically contigent as any other, and finds its historical place less in the Founders' generation than in the robber barons'.

My point isn't that you can't make a good policy case for protecting private property rights more carefully than we do; my point is that conservatives usually think policy arguments of that kind shouldn't determine the content of Constitutional provisions. I'm unaware of any Constitutional language shedding light on what a "public use" is. The Supreme Court just said, "Go ask the legislature, and unless they really screw up, they get to decide." In the absence of a clear constitutional command to the contrary, isn't that precisely how republican government is supposed to work?
6.23.2005 2:53pm
Wade Beltramo (mail):
For some reason the Daily Kos link didn't get posted here it is to cut and paste http://www.dailykos.com/story/2005/6/23/10559/5709
6.23.2005 2:54pm
Gene Vilensky (www):
Eddleman,

The point here is that yes, private property is extremely important. We understand that there are some (very few though) public goods that might trump public property (using eminent domain to build a public road or highway for example... all but the mos doctrinaire libertarians think that the government should build roads). But, if you begin defining public goods as things like "workplace safety" (which are actually private goods, since particular private parties, i.e. employees benefit, without benefit to anyone else) and "living wages" (again, private benefit), then the concept of private property is truly meaningless. As I said earlier, I really do think that the liberals on this Court felt that it was a necessary pill to take in Raich and Kelo in order to uphold sacred liberal cows like regulation.

The problem does not start with them being incorrect on a specific case. It's the political philosophy that gets them into trouble and forces them to make bad decisions.

Also, when you say "conservative," you don't realize that there is an actual traditionalist/libertarian split on many of these issues within the libertarian movement. Many libertarians liked the Lawrence decision, for example (even though the one libertarian on the Court, Thomas, agreed with Scalia's take). That's why Cato and Heritage often disagree. As do CATO and AEI.
6.23.2005 2:58pm
Anthony Sanders (mail):
Eddleman-- Some scholars have pushed for the idea that courts in the early republic were not very protective of property rights, as you allude to. However, see Bernard Seigan's book "Property Rights" (2001(?)) for a debunking of this. Courts of the late 18th and 19th centuries were indeed demanding of real public uses, and often overroad legislative judgments.
6.23.2005 3:02pm
Thom (mail):
Hmm. The Constitution also doesn't really tell us what is an 'unreasonable' search/seizure, or what is 'speech' in the context of the first amendment. Should the legislature also decide these things? It seems if this was the case, there would be no point in having a bill of rights at all. The bill of rights wouldn't provide people with very much protection from unjust laws if the law-making authority gets to decide what the bill of rights means.

It seems to me that the takings clause is pretty much meaningless if legislature itself gets to interpret the very body of law designed to restrain the legislature.
6.23.2005 3:09pm
Anderson (mail) (www):
In my view the theory of incorporation of the bill of rights into the 14th Amendment is a crock. Therefor, in my view, the takings clause does not apply to the states and the judgment in Kelso is correct for the wrong reason.

Now that's what I call the OLD-time religion!
6.23.2005 3:23pm
w. lyle stamps (mail) (www):
I can't believe it. The U.S. just moved one step closer to Zimbabwe. Who will we allow the government to take land from next?

Time to amend the U.S. Constitution to prevent government land grabs to private developers. Anyone have some good wording they can suggest?

In the meantime, perhaps the state legislatures can pass a law and/or look into adopting a higher level of protection for private property in the state constitutions?
6.23.2005 3:30pm
Eddleman (mail):
Mr. Sanders,

I haven't read Seigan's book, but I'm aware of enough of the literature on both sides of this to think there's a genuine debate to be had. My own view is that the courts weren't particularly consistent in their reactions to this question in the early years of the republic. There seems to have been a genuine cultural and legal divide between what we might call (for lack of better terms) civic republican and possessive individualist views of property rights.

In regards to the Marbury comment above, I indicated in my first reply that the courts should exercise control over the broad parameters of public use. I don't understand, though, why anyone would think it desirable to permit the courts to create substantive law on the point. Why is it more desirable to have "public use" be whatever the Supreme Court happens to think desirable than what accountable public officials think desirable? And why shouldn't that reasoning apply equally to, say, abortion rights?
6.23.2005 3:36pm
Eddleman (mail):

Hmm. The Constitution also doesn't really tell us what is an 'unreasonable' search/seizure, or what is 'speech' in the context of the first amendment. Should the legislature also decide these things? It seems if this was the case, there would be no point in having a bill of rights at all. The bill of rights wouldn't provide people with very much protection from unjust laws if the law-making authority gets to decide what the bill of rights means.


Respectfully, Thom, the issues are different. Deciding what is a public purpose or a public good (which I think is strongly analogous to a public use, although I can see room for argument there) is, in a nutshell, exactly what the job of a legislature is. It is the public body elected to ensure the general welfare. If you say the legislature can't decide what the public good is, you've eviscerated representative government. The other limits you describe-- on restricting speech and on unreasonable searches and seizures-- are themselves substantive limits on the legislature's capacity to determine the public good. It's not in Congress's power to make laws abridging free speech, even if it thinks those laws serve public interests. Same thing for unreasonable searches.

Now, I can see arguments for and against the proposition that "public good" and "public use" should be treated similarly for this purpose, but I think your original point doesn't bear scrutiny.
6.23.2005 3:45pm
Lawroark (mail) (www):
For anyone who is interested, I created the Kelo-Amendment blog: http://kelo-amendment.blogspot.com/
6.23.2005 4:27pm
oblomov:
So much for the "new libertarianism" of Anthony Kennedy.
6.23.2005 4:28pm
Thom (mail):
I agree that, absent a constitutional prohibition, that legislature is the proper entity to decide what is or is not for the public good, and what sort of public services should be provided to the community.

But here, in the Fifth Amendment takings context, I think there _is_ a prohibition. The Fifth Amendment takings clause, like the bill of rights in general, is a restraint on the legislature. It defines certain boundaries that the legislature is not permitted to cross, no matter what it might think is for the 'public good'. The takings clause gives citizens rights against abuses of a legislature.

So if the legislature is allowed to do the interpreting itself, why have a takings clause at all? If 'public use' basically means whatever the legislature decides it should mean, then why bother putting it in the constitution?
6.23.2005 4:39pm
jallgor (mail):
I agree with Thom and the "unreasonable" search/seizure analogy is applicable. The legislature is tasked with deciding when to take private property and it is also tasked with drafting a code of criminal procedure. Inboth instances those powers are limited by the constitution. In the case of takings, they must be for a public use. In the cases of searches, they can't be unreasonable. The legislature doesn't get the final say on what qualifies as a public use any more than they get the final say on what searches are unreasonable. This is a question of constitutional interpretation plain and simple. If the legislature is to be the final interpreter of "public use" then what is the point of having a Court even consider the case? You might as well pack up the court and send them home because they have nothing left to do.
6.23.2005 5:42pm
jallgor (mail):
I agree with Thom and the "unreasonable" search/seizure analogy is applicable. The legislature is tasked with deciding when to take private property and it is also tasked with drafting a code of criminal procedure. Inboth instances those powers are limited by the constitution. In the case of takings, they must be for a public use. In the cases of searches, they can't be unreasonable. The legislature doesn't get the final say on what qualifies as a public use any more than they get the final say on what searches are unreasonable. This is a question of constitutional interpretation plain and simple. If the legislature is to be the final interpreter of "public use" then what is the point of having a Court even consider the case? You might as well pack up the court and send them home because they have nothing left to do.
6.23.2005 5:43pm
Baronger (mail) (www):
A man's home is apparently no longer his castle, or as Glen Reynolds put's it, "it's someone elses piggybank."

What use is homeland security if we don't have home security. What use is a constitutional amendment now, we used to have one that gave us protection. It looks like the Supreme Court has finaly ruled, "You can't fight city hall." This is a heck of a threat. Disagree with the city on any issue or insult a council member, and they can now retaliate by taking your home.
6.23.2005 7:35pm
Baronger (mail) (www):
Quick addendum/question: Do the Supreme Court justices take an oath to uphold and defend the constitution? If there is a clear violation in them overrunning an amendment, what can be done?
6.23.2005 7:37pm
Eddleman (mail):

A man's home is apparently no longer his castle


Let's be very careful here. The government has always had the right to take your home away for a public use if it pays just compensation. That's in the Constitution. If you want to get rid of that, you'll have to use Article V. The only question is what latitude the government has in determining what a "public use" is. The Supreme Court has said "quite a bit." That's all.

The tenor of the comments on this board suggests that everyone assumes that taking property and allowing a private developer to develop it is inherently not a public use. Shouldn't that depend on the circumstances? What if the development in question is a mixed-use development that includes, say, a public library? What if it's a road, but it's a privately owned toll road? Eugene Volokh usefully pointed out the conundrum here: if you think government should undertake most activities by funding private enterprise, then you *want* a broad eminent domain power to make that possible.

As to your second question, Supreme Court justices do take an oath of office, and it does include the language about protecting and defending the Constitution. There really is no mechanism, though, for determining whether the Court has "overrun" a constitutional provision: the Supreme Court, for better or for worse, is the ultimate arbiter of "what the law is," including the Constitution. They can, for example, read the Privileges and Immunities clause right out of the document, decide that the 14th Amendment sub silentio "incorporated" the Bill of Rights, and do all sorts of other controversial things. Congress has its ways of controlling the Court, of course, but it doesn't like to use them: the Court is a useful tool for the political branches, making the unpopular decisions that politicians don't want to make anyway.
6.24.2005 9:43am
Eddleman (mail):
One correction: the judicial oath of office reads a little differently than I remembered. According to Title 28, Chapter I, Part 453 of the United States Code, each Supreme Court Justice takes the following oath:

"I, [NAME], do solemnly swear (or affirm) that I will administer justice without respect to persons, and do equal right to the poor and to the rich, and that I will faithfully and impartially discharge and perform all the duties incumbent upon me as [TITLE] under the Constitution and laws of the United States. So help me God.''

This actually makes a bit more sense than instructing Justices to preserve and defend the Constitution, for exactly the reason that they are its interpreters.
6.24.2005 9:45am
David M. Nieporent (www):
Respectfully, Thom, the issues are different. Deciding what is a public purpose or a public good (which I think is strongly analogous to a public use, although I can see room for argument there) is, in a nutshell, exactly what the job of a legislature is. It is the public body elected to ensure the general

Respectfully, Eddleman, I think that was a textbook example of begging the question. The difference between public use and public good or purpose is one of the key issues here, not something to pass over.

The issue of whether a particular taking will actually accomplish its goal is the job for the legislature. The issue of whether it meets the constitutional definition of public use is a job for the courts. The latter is not a policy question.

It's not in Congress's power to make laws abridging free speech, even if it thinks those laws serve public interests.

Exactly. Nor is it in Congress's power to take property for private use, even if it thinks those laws serve public interests.
6.24.2005 9:52am
Eddleman (mail):

Exactly. Nor is it in Congress's power to take property for private use, even if it thinks those laws serve public interests.


Quite right, David. We don't disagree. I still have yet to see a convincing explanation, though, of why what New London did is so obviously a "private use," or why the Supreme Court should exercise stricter scrutiny than it used in Kelo in considering that question.

The more I think about Kelo-- especially Kennedy's opinion-- the more I think it's actually a fairly strong indication that the courts will, in fact, be strict about preventing the kind of A-to-B transfers that everyone here is so worried about.
6.24.2005 12:31pm