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Don’t count on conservatives

Posted by Richard on June 27, 2005

Carl Frank, in a comment to my earlier post about Kelo and at greater length on his own blog, defends the Kelo decision as being properly decided and a victory for conservatism. Regarding the latter, he may have a point — but that’s just further evidence that you shouldn’t entrust defense of your rights to conservatives.

Frank breaks his Kelo defense into three reasons — Text, Precedent, and Federalism — and a conclusion.

The first reason, "Text," contains three arguments. The first argument strikes me as essentially, "I’m not persuaded that ‘use’ and ‘purpose’ have different meanings. And if you insist on a strict definition for ‘use,’ I can posit some silly-ass ways to ‘strictly’ define ‘public’ that will cause the weak-willed among you to give up entirely on the idea that the words of the Constitution have fixed and discernible meanings."

Thomas, IMHO, provides a wealth of evidence for his narrower interpretation of "public use" — definitions and common usage from the time, other instances of "use" in the Constitution, the contrast with "general Welfare" (which could have been employed were a broader meaning intended), the common law background, the superfluity of "public use" if it means nothing more than "Necessary and Proper" — but if you’re not persuaded, you’re not persuaded.

The second argument says that Thomas’ historical citations are "inapposite" because they predate the modern corporation. Huh? Is this a suggestion that, for purpose of determining what’s "public use," it matters whether the government gives your property to another individual or to a corporation? Surely not, so maybe I’m just missing the point. In any case, Frank ignores the point Thomas was making. Thomas cites those early cases specifically because "several early state constitutions at the time of the founding likewise limited the power of eminent domain to ‘public uses.’ Their practices therefore shed light on the original meaning of the same words contained in the Public Use Clause." (emphasis added)

And the third argument within the "Text" reason? Thomas "departs from essentially all prior takings decisions" — um, doesn’t that belong under reason #2, "Precedent"?

Which brings us to "Precedent." Frank begins with examples involving zoning and regulations. These involve use of the police power, and Thomas did a nice job of arguing that "Berman and Midkiff erred by equating the eminent domain power with the police power of States. … In Berman, for example, if the slums at issue were truly ‘blighted,’ then state nuisance law, not the power of eminent domain, would provide the appropriate remedy. To construe the Public Use Clause to overlap with the States’ police power conflates these two categories."

Frank is correct that Kelo is consistent with previous takings cases. But, Thomas makes the argument that those cases were poorly reasoned and "wholly divorced from the text, history, and structure of our founding document," and therefore ought to be reconsidered. Frank apparently thinks stare decisis trumps everything, so those previous rulings cannot be reconsidered, no matter how strong the case against them. I disagree.

Yes, precedent should matter, and we need some stability and predictability. But, no, it’s not more important than restoring the limits on government power that the founders intended and the plain meaning requires. I guess that’s one reason I’m not a conservative — I’ll be damned if I want to "conserve" what should never have been permitted to begin with.

Frank’s "conservatism" regarding precedent forces the proponents of liberty to play only defense in the courts. We can try to prevent losses of liberty and expansions of government power, but once we lose on an issue, it’s lost for good. We can never regain lost liberties or undo government encroachments. No part of the Constitution, once ignored, can ever be restored. I don’t accept that. I’m not content to "stand fast" in a rising tide of statism; I want to move back toward shore.

Reason #3, "Federalism," begins with the declaration that "Kelo upholds states rights." A quibble: states don’t have rights, they have powers; only people have rights. That distinction is important. Yes, federalism promotes the worthy goals Frank ticks off, but that’s not the point. And to dismiss Thomas’ argument as nothing more than "anti-majoritarian judicial whim" is to adopt the post-modern leftist view that the Constitution has no meaning beyond the preferences, prejudices, and whims of a majority of justices.

The purpose of the 10th Amendment is not to grant powers to the states, but to deny them to the federal government. The former is merely an incidental consequence and limited to those powers that don’t abrogate the rights of the people. Hawaii and Connecticut cannot legitimately experiment with socialism. If you want to give them the power to do so, then, for starters, repeal the 14th Amendment. Until then, the protections of the Bill of Rights apply.

[Note: Don’t get me wrong; I’m not saying that repeal of the 14th Amendment would legitimize state abrogation of individual rights, except in a narrow legalistic sense. The Constitution doesn’t grant us rights, it merely recognizes and protects rights we already have. In its absence, we still have those rights, and their abrogation is still wrong.]

Frank writes approvingly of "Midkiff’s refusal to ‘substitute its judgment for a legislature’s judgment as to what constitutes a public use’ and its reminder that ‘debates over the wisdom of . . . socioeconomic legislation . . . are not to be carried out in the federal courts.’" So, this conservative "deference to state authority" endorses the view that the words of the Constitution have no fixed meaning, that the Constitution imposes no restrictions on what the legislature may do in the "socioeconomic" sphere, and that "public use" means whatever the legislature says it means. Thomas dismissed this line of argument with the contempt it deserves:

There is no justification, however, for affording almost insurmountable deference to legislative conclusions that a use serves a “public use.” To begin with, a court owes no deference to a legislature’s judgment concerning the quintessentially legal question of whether the government owns, or the public has a legal right to use, the taken property. Even under the “public purpose” interpretation, moreover, it is most implausible that the Framers intended to defer to legislatures as to what satisfies the Public Use Clause, uniquely among all the express provisions of the Bill of Rights. …

… The Court has elsewhere recognized “the overriding respect for the sanctity of the home that has been embedded in our traditions since the origins of the Republic” when the issue is only whether the government may search a home. Yet today the Court tells us that we are not to “second-guess the City’s considered judgments” when the issue is, instead, whether the government may take the infinitely more intrusive step of tearing down petitioners’ homes. Something has gone seriously awry with this Court’s interpretation of the Constitution. Though citizens are safe from the government in their homes, the homes themselves are not. Once one accepts, as the Court at least nominally does, that the Public Use Clause is a limit on the eminent domain power of the Federal Government and the States, there is no justification for the almost complete deference it grants to legislatures as to what satisfies it.

Frank states,  "The Constitution’s already too ‘living’ to waste Berman’s insistence that ‘the legislature, not the judiciary, is the main guardian of the public needs to be served by social legislation.’" I find this perverse. It’s Berman that makes the Constitution far more "living" by arguing that its meanings can’t be fixed, that the limits of government power are for the legislature to determine, case by case. I defy any advocate of limited, Constitutional government to read Berman without gagging; here’s a sample:

… We deal, in other words, with what traditionally has been known as the police power. An attempt to define its reach or trace its outer limits is fruitless, for each case must turn on its own facts. The definition is essentially the product of legislative determinations addressed to the purposes of government, purposes neither abstractly nor historically capable of complete definition. …
We do not sit to determine whether a particular housing project is or is not desirable. The concept of the public welfare is broad and inclusive. The values it represents are spiritual as well as physical, aesthetic as well as monetary. It is within the power of the legislature to determine that the community should be beautiful as well as healthy, spacious as well as clean, well-balanced as well as carefully patrolled. … If those who govern the District of Columbia decide that the Nation’s Capital should be beautiful as well as sanitary, there is nothing in the Fifth Amendment that stands in the way.

Once the object is within the authority of Congress, the right to realize it through the exercise of eminent domain is clear. For the power of eminent domain is merely the means to the end. Once the object is within the authority of Congress, the means by which it will be attained is also for Congress to determine.

That, I contend, is your "living" Constitution — not Thomas. Under Berman, the legislature may define away any limitation imposed on it by the Constitution. Making the community beautiful becomes "Necessary and Proper" if lawmakers say it is, and "public use" means whatever they wish it to mean. When the legislature renders provisions of the Constitution meaningless by redefining them contrary to their original meaning and intent, how is that better than when a court does the same?

Frank’s defense of decisions like Berman amounts to an endorsement of the Roosevelt-era wholesale voiding of economic rights and a complete abandonment of the idea that the Constitution imposes specific, firm limits on the power of government. Are "judicial restraint" and respect for precedence worth that?

In his conclusion, Frank states, "Unrestricted eminent domain would be unconstitutional. But Kelo demands no such thing." Kelo concludes as follows:

This Court’s authority, however, extends only to determining whether the City’s proposed condemnations are for a “public use” within the meaning of the Fifth Amendment to the Federal Constitution. Because over a century of our case law interpreting that provision dictates an affirmative answer to that question, we may not grant petitioners the relief that they seek.

So, (1) Kelo says the only legitimate question is whether there is a "public use," (2) the precedents on which it’s based say that "public use" means "public purpose," and (3) those precedents also say that "public purpose" means pretty much whatever the legislature says it means. How, exactly, do I distinguish that in any meaningful way from "unrestricted eminent domain"?

BTW, I find it ironic that Frank approvingly cites Lingle v. Chevron U.S.A., given his strong feelings about precedence and judicial restraint, since this opinion explicitly rejects the takings test established by Agins v. City of Tiburon:

Twenty-five years ago, the Court posited that a regulation of private property “effects a taking if [it] does not substantially advance [a] legitimate state interes[t].” The lower courts in this case took that statement to its logical conclusion, and in so doing, revealed its imprecision. Today we correct course. We hold that the “substantially advances” formula is not a valid takings test, and indeed conclude that it has no proper place in our takings jurisprudence.

So, Frank objects to Thomas’ well-reasoned argument for reconsidering the sweeping redefinitions of Berman, Midkiff, etc., and returning to the original meaning of the Constitution, but he has no problem with O’Connor setting aside precedent for the purpose of broadening government takings power further.

If this is conservatism and judicial restraint, it’s curiously selective, standing in the way of any reduction in government power, but aquiescing to any expansion of such power. I want none of it.  

UPDATE: I’ve just come across Friday’s George Will column (WaPo; log in with BugMeNot). His warning to conservatives seems directed toward those of Carl Frank’s persuasion:

Liberalism triumphed yesterday. Government became radically unlimited in seizing the very kinds of private property that should guarantee individuals a sphere of autonomy against government.

Conservatives should be reminded to be careful what they wish for. Their often-reflexive rhetoric praises "judicial restraint" and deference to — it sometimes seems — almost unleashable powers of the elected branches of governments. However, in the debate about the proper role of the judiciary in American democracy, conservatives who dogmatically preach a populist creed of deference to majoritarianism will thereby abandon, or at least radically restrict, the judiciary’s indispensable role in limiting government.


Update: Check out the fatwa festival at The Jawa Report. I’m shooting for a fatwa, and there are lots of fatwa-worthy posts there already.

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2 Responses to “Don’t count on conservatives”

  1. Anonymous said


    Three points.

    1) First, as you say, I’m not persuaded that the text supports an exclusion of private ownership. Were it otherwise, we would agree on all counts. Meaning I too am doubtful of the wisdom of private-to-private schemes, such as urban renewal–but not convinced they’re forbidden.

    2) So the legal question here is narrow. I concede a lack of deep expertise on the meaning of the clause, though I’ve researched the question before. I find Thomas unconvincing in part because sovereign control of corporations was nearly absent (as Thomas himself admits). But also, in part, because plenty of older decisions go the other way (and often confuse taking with common carrier obligations). The provision can’t be absolute (and has not been so interpreted)–or every regulatory diminution would be a taking: the Founders are unlikely to have demanded such an overwhelming constraint. And obviously, private benefits in conjunction with takings are routine. I’m not certain–but I think the provision ambiguous.

    3) Assuming ambiguity, what now? Is it so clear that private-to-private condemnation always would be wrong? Are we certain corruption is so extensive that prohibition is the sole answer? Can you not envision a private-to-private compensated taking that would generate the intended results (in Kelo, growth, development and increasing the tax base) and be supported by the vast majority? do you fear compensation won’t be just?–if so, let’s fix that.

    In sum, I’m troubled by Federal courts second guessing the will of the people and/or their elected representatives. State and local government balance competing interests all the time–and face re-election as often.

    I don’t say your reading is wrong–just no more compelling than mine. I too think the scheme in Midkiff stupid and urban renewal doubtful. But, if not prohibited by the Fifth Amendment, I see no reason to preclude private sector involvement once the proper governmental authority settles on eminent domain.

  2. Anonymous said

    Actually, it seems that we disagree on far more than the text. You seem not at all troubled by the taking of private property from its rightful owner as long as it “generate(s) the intended result” and is “the will of the people.”

    I countenance ”any” taking for ”any” purpose with the greatest reluctance. To me, it’s a ”barely necessary” and nearly intolerable evil. I have great respect for common law and very much liked the Blackstone quote in Thomas’ dissent:

    ”Blackstone rejected the idea that private property could be taken solely for purposes of any public benefit. “So great … is the regard of the law for private property,” he explained, “that it will not authorize the least violation of it; no, not even for the general good of the whole community.” ”

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