July 4th Fireworks from Mark Steyn:

In honor of July 4, some raucus and well-timed fireworks from Mark Steyn giving the Supreme Court a well-deserved helping of derision. I recommend the whole thing--every sentence is hilarious. Here's a snippet:

Rule by the judicial interpretation of principles is problematic enough for some of us. But rule by the judicial interpretation of lack of principles takes us to dizzying new heights. Last week, in two rulings, the Supreme Court decided that (a) displays of the Ten Commandments are constitutional and (b) displays of the Ten Commandments are unconstitutional. Don't worry, all nine judges aren't that wacky, just the deciding vote in both 5-4 decisions. That belonged to Stephen Breyer, who nixed the Ten Commandments in Kentucky but gave 'em two thumbs up in Texas. His basis was that the Texas Commandments had been there 40 years and were thus part of "a broader moral and historical message reflective of a cultural heritage," whereas the Kentucky display was newer and "a more contemporary state effort to focus attention upon a religious text is certainly likely to prove divisive." Really? Not as "certainly likely" to prove divisive as grandfathering the display of some Commandments but not others, so the only way to be sure yours is constitutional is to sue over it. For one thing, Justice Breyer didn't identify the year in which he believes the Commandments ceased to be constitutional -- 1968, 1973? Or maybe a sliding scale? If you put up the Commandments before 1965, you can have all Ten; between 1966 and 1979, you can have six firm Commandments plus a couple of strong recommendations; from 1980 to 1991, it's two Commandments and a half-dozen lifestyle tips? To be sure, the Supreme Court took other factors than the year of manufacture into consideration -- whether the display was inside or outside, whether it was surrounded by a full supporting cast of religious artifacts or secular knick-knacks, etc. But it's hard to discern any principles here, at least when compared to their one-size-fits-all abortion absolutism. To the best of my knowledge, Justice Breyer has never claimed you can have a first-trimester abortion in the parking lot, but for the full partial-birth you must be indoors.

He also gives an update of life for homeowners after Kelo:

Nonetheless, across the fruited domain, governments reacted to the court decision by sending the bulldozers round to idle expectantly on John Doe's front lawn: Newark. N.J., officials moved forward with plans to raze 14 downtown acres and build an upscale condo development; Arnold, Mo., intends to demolish 30 homes, 14 businesses and the local Veterans of Foreign Wars to make way for a Lowe's Home Improvement store and a strip mall developed by THF Realty.

A Blogger:
It seems like Steyn condemns the Court for engaging in a complex line-drawing exercise for nontextual policy reasons in the Ten Commandments cases, and then condemns the Court for refusing the engage in a complex line-drawing exercise for nontextual policy reasons in the Kelo case. Odd that he does both in the same op-ed, and doesn't seem to see the inconsistency. SO much for lack of principle.
7.4.2005 11:52am
Steve T.:
Haven't you ever heard of a grandfather clause?
7.4.2005 12:18pm
Rob Lyman (mail):
I rather suspect Steyn would resolve the "inconsistency" with a textual response: display of the Ten Commandments is not "establishment," and taking for development is not "public use." He probably isn't a fan of "policy reasons" generally, as they tend to degenerate into judicial legislation.

I can see that the line-drawing in the Commandments cases is slightly complex, but what's complex about defining "public use" as, say, building a road open to the public, rather than a luxury hotel open only to paying customers?
7.4.2005 12:20pm
CharleyCarp (mail):
Lyman, what's a baseball stadium? A private turnpike? A privately owned ditch that conveys irrigation water to a cotton farmer? A railroad spur?

As for this:

To the best of my knowledge, Justice Breyer has never claimed you can have a first-trimester abortion in the parking lot, but for the full partial-birth you must be indoors.

Isn't this the very content of the Roe formula?
7.4.2005 12:28pm
Rob Lyman (mail):
Charley, none of those examples were the issue in Kelo.
7.4.2005 12:55pm
CharleyCarp (mail):
Rob, the railroad spur and the private irrigation ditch are precedents from the 19th century. With "Thomism," all the old cases are always in issue.
7.4.2005 1:39pm
CharleyCarp (mail):
The spur might be very early 20th century. Pre-New Real, anyway.
7.4.2005 1:39pm
Rob Lyman (mail):

So what? What's your point? I'm sure Steyn wouldn't say "there are no hard cases in takings law," his point is that this was an easy case--that went the wrong way.

If we absolutely must distinguish the ditch and RR, it's easy enough to do on two grouds: first, they probably were easements, not takings of the fee interest as in Kelo (this will also be true for some but not all roads). Second, you can't build a useful railroad or irrigation ditch on a compact piece of property, you simply must build it across a bunch of other people's land. The same is not true of a hotel/office complex, which could be put on raw land bought from a farmer happy to sell in a different place.

Anyway, the point of my respones to A Blogger is that his "inconsistency" is invented--Steyn woudn't consider complicated policy questions to be important in either Kelo or the commandments cases.
7.4.2005 1:54pm
frank cross (mail):
It's somewhat humorous, but reminds me of undergraduate students who want an answer to "can I legally do X or say X?" I try to explain that the answer to nearly every such legal question is "it depends" on matters such as your intent, the surrounding circumstances, etc. I suppose there's a certain yearning for forced simplicity.
7.4.2005 5:23pm

You have failed to distinguish these cases in a principled manner. If I understand you, you are saying that a private railroad which only allows paying customers is a "public use" because it is "necessary" for them to build such a railroad on other people's land. What kind of principle is that? It is not a principle. Who decides what is necessary? Necessary for whom? For what purpose? The second you say necessary for economic development, you have lost the argument. I think it is at least legally possible for railroads to buy the land that they propose to build their tracks on. If people refuse to sell, then maybe the railroad has to build around the properties in question (at greater cost, obviously) or compensate the holdout with much more money or, finally, not build a railroad at all. Why do we need to violate anyone's property rights for a private railroad??? For the public economic benefits? If public economic benefits are a "public use" then I think Kelo was rightly decided.

One quite unprincipled exception that many critics of Kelo would make is to use takings solve holdout problems for private developers. But I do not see why the government should be involved in preventing individuals from being holdouts concerning their own property. How is a "private use" transformed into a "public use" based on the motivations of a property owner who "holds out." It may seem "unfair" that those wanting to build large projects must share some of the private benefit to be gained by these projects with the private owners of property they plan to exploit, but I don't see the issue. Not all wealth in our society is earned. What is so different from holdouts who are able to leverage their property for large profits? While I agree with the idea that holdouts impose costs by making private productive ventures more expensive and that it would be desirable and beneficial if they were not allowed to do so, isn't it obvious that what one thinks is "desirable and beneficial" is essentially a policy issue. If one believes in an expansive definition of "public use" in one context to solve holdout problems, it is unprincipled to think that the expansive definition cannot be used in other contexts which one finds less desirable.

The bottom line: some of Kelo's critics would manipulate the language of the Constitution to enshrine within it their vision of the good society. In this case, the economic concept that their is net benefit to society when holdouts have their property taken. Such critics mistakenly and self-righteously condemn other's who want to define the concept of "public use" in different, but similarly non-textual manner. They overlook the fact that they themselves have already moved beyond the confines of the text. They are claiming to be textualists, but do not seem limited by the text in achieving their own aims.

Clearly, their are more principled critics of Kelo. Those who would not try to enshrine a particular vision of economics into the Constitution. If holdouts are a special case, perhaps we should have a Constitutional Amendment.

Moving back to your point. Yes, you can distinguish Railroads and the project in Kelo. Just as most things can be distinguished. But the real question is whether the distinction is signficant. There is no "textual" basis for distinguishing takings of the fee simple or an "easement" which absolutely prevents any use by the supposed "owner" of the property used in question. What does it mean to own land with a railroad track if you can't remove the offending track if it bothers you? You may still own land adjacent to the railroad, but certainly, the land with the railroad itself has been taken in as absolute a manner as if you had lost the fee simple for that land. In any case, I do not think that any of this has anything at all to do with "public use." Unless you are saying that these railroad easements aren't takings. If they are takings, then you still have to explain what the "public use" is.

So, your attempts to distinguish have faild on both counts. That accomplishing some goal of a private enterprise "requires" many other parcels of people's land does not transform a "private use" into a "public use." Neither does a taking which leaves the owner with adjacent property rights, when the rights on which a railroad track is built are essentially non-existent does not transform a "private use" into a "public use" either.

It seems quite clear that any distinctions are without substance. Railroads are an example of a case where "public use" was already interpreted to mean "public benefit." Maybe you don't like the railroad precedent, but I think it is quite incorrect to pretend it was somehow "pure" from a textualist perspective and that Kelo is somehow radically different. To criticize one from a textualist perspective is to criticize the other.
7.4.2005 5:31pm
Rob Lyman (mail):
I'm not interested in a full takings debate; Charley wanted me to deal with old precedents so I did; that doesn't mean I think they were rightly decided. None of this is relevant to my initial point anyway. But:

1) the distinction between a fee taking an an easment is constitutionally significant; should the railroad or irrigation ditch user abandon an easement, it reverts to the fee owner and can't be turned into something else. The required compensation for an easement is correspondingly lower, and the RR probably has a more limited right to exclude the fee owner than they would if they owned it in fee.

2) When I say it is "necessary" to run a railroad over many people's property, I don't mean that the railroad itself is genuinely necessary. I mean that to have any railroad at all, you must run it over many people's property. You might think the railroad itself is useless or purely for the benefit of private parties, but it is fundamentally different from a hotel or office building which can be built on a compact, contiguous piece of land. That is certainly a distinction--you could almost certainly find someone who wants to sell you a few acres for a hotel, but it's doubtful that any railroad builder could find a way to buy a continuous ribbon on which to lay tracks. So long as we are getting fancy about principle, explain to me by what principle you decide what distinctions are "significant" and which aren't.

3) Finally, there is the issue of railroads being common carriers, and subject to the privileges and regulations which come with that. They thus aren't really 100% "private," even if privately owned. A hotel might qualify here, being open to all paying members of the public, whereas an office building might not. Yet another distinction that might matter.
7.5.2005 12:30am
Takings for private development have been going on for decades. But commentators like Prof. Zywicki insist on lamenting the "post-Kelo world" that allows things like the Missouri case, without noting that the "post-Kelo world" is exactly the same as the pre-Kelo world. All of these developments that have been going on for years are suddenly the Supreme Court's fault. Amazing.

Does anyone seriously doubt that legislative bodies are far better suited than the Supreme Court to develop a system of rules for what constitutes an acceptable taking?
7.5.2005 4:46am