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SCOTUS: gov’t. power unlimited

Posted by Richard on June 23, 2005

This Supreme Court session really sucks. Kelo v. City of New London confirms what Raich suggested: there are now five solid votes that will embrace the flimsiest of arguments in favor of more government power and against the rights of individuals.

At least this time, Scalia joined O’Connor, Rehnquist, and Thomas in dissent. I guess that’s because Suzette Kelo wasn’t growing pot on the property that New London wanted to seize.

Once again, Clarence Thomas stands out as the unbending, unequivocating, principled defender of a Constitution that strictly limits the power of government and protects the rights of the people. He concurs with (and praises) O’Connor’s dissenting opinion, but filed his own dissent because she didn’t go far enough. His sharp tongue and biting sarcasm are evident throughout; it’s clear his opinion is strongly felt, and he rejects the majority’s thinking forcefully.

Thomas doesn’t bow (as O’Connor does) at the altar of stare decisis; he thinks the precedents on which Stevens based the very brief majority opinion — chiefly Bradley, Berman, and Midkiff — were badly decided and should be revisited (references removed throughout for readability):

…the Court replaces the Public Use Clause with a "'[P]ublic [P]urpose’" Clause (or perhaps the "Diverse and Always Evolving Needs of Society" Clause (capitalization added)), a restriction that is satisfied, the Court instructs, so long as the purpose is "legitimate" and the means "not irrational," …

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. … 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.

Thomas discusses the original intent of the phrase "public use," arguing that it can’t be interpreted as having no meaning, and contrasts it with the broader phrase "general Welfare" used elsewhere. Noting "the Constitution’s common-law background" (as only Thomas would), he points out that nuisance law, not eminent domain, dealt with land uses adversely impacting the public welfare and cites Blackstone:

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.” …

Then we come to an argument that illustrates what really sets Thomas apart. He actually understands — indeed, insists upon — the original purpose of the Constitution — to limit government:

The public purpose interpretation of the Public Use Clause also unnecessarily duplicates a similar inquiry required by the Necessary and Proper Clause. The Takings Clause is a prohibition, not a grant of power: The Constitution does not expressly grant the Federal Government the power to take property for any public purpose whatsoever. Instead, the Government may take property only when necessary and proper to the exercise of an expressly enumerated power. … For a law to be within the Necessary and Proper Clause, as I have elsewhere explained, it must bear an “obvious, simple, and direct relation” to an exercise of Congress’ enumerated powers, and it must not “subvert basic principles of” constitutional design. In other words, a taking is permissible under the Necessary and Proper Clause only if it serves a valid public purpose. Interpreting the Public Use Clause likewise to limit the government to take property only for sufficiently public purposes replicates this inquiry. If this is all the Clause means, it is, once again, surplusage. …  

Thomas recounts some early American history of eminent domain practice, which supports his reading. Then he dumps on the precedents cited by Stevens and on Stevens for relying on them:

Our current Public Use Clause jurisprudence, as the Court notes, has rejected this natural reading of the Clause. The Court adopted its modern reading blindly, with little discussion of the Clause’s history and original meaning, in two distinct lines of cases: first, in cases adopting the “public purpose” interpretation of the Clause, and second, in cases deferring to legislatures’ judgments regarding what constitutes a valid public purpose. Those questionable cases converged in the boundlessly broad and deferential conception of “public use” adopted by this Court in Berman v. Parker and Hawaii Housing Authority v. Midkiff, cases that take center stage in the Court’s opinion. The weakness of those two lines of cases, and consequently Berman and Midkiff, fatally undermines the doctrinal foundations of the Court’s decision. Today’s questionable application of these cases is further proof that the “public purpose” standard is not susceptible of principled application. This Court’s reliance by rote on this standard is ill advised and should be reconsidered.

Thomas discusses the "two misguided lines of precedent " leading to Berman and Midkiff and then dissects those two cases thoroughly. Here are a few choice observations:

More fundamentally, 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.

The “public purpose” test applied by Berman and Midkiff also cannot be applied in principled manner. …  I share the Court’s skepticism about a public use standard that requires courts to second-guess the policy wisdom of public works projects. The “public purpose” standard this Court has adopted, however, demands the use of such judgment, for the Court concedes that the Public Use Clause would forbid a purely private taking. It is difficult to imagine how a court could find that a taking was purely private except by determining that the taking did not, in fact, rationally advance the public interest.  The Court is therefore wrong to criticize the “actual use” test as “difficult to administer.” It is far easier to analyze whether the government owns or the public has a legal right to use the taken property than to ask whether the taking has a “purely private purpose”—unless the Court means to eliminate public use scrutiny of takings entirely. Obliterating a provision of the Constitution, of course, guarantees that it will not be misapplied.

For all these reasons, I would revisit our Public Use Clause cases and consider returning to the original meaning of the Public Use Clause: that the government may take property only if it actually uses or gives the public a legal right to use the property.

Thomas echoes O’Connor’s observation that this ruling will disproportionately harm poor communities:

Those communities are not only systematically less likely to put their lands to the highest and best social use, but are also the least politically powerful. If ever there were justification for intrusive judicial review of constitutional provisions that protect “discrete and insular minorities,” surely that principle would apply with great force to the powerless groups and individuals the Public Use Clause protects. The deferential standard this Court has adopted for the Public Use Clause is therefore deeply perverse.

Thomas’ conclusion is a devastating dismissal of the practice of following bad precedents:

The Court relies almost exclusively on this Court’s prior cases to derive today’s far-reaching, and dangerous, result. But the principles this Court should employ to dispose of this case are found in the Public Use Clause itself, not in Justice Peckham’s high opinion of reclamation laws. When faced with a clash of constitutional principle and a line of unreasoned cases wholly divorced from the text, history, and structure of our founding document, we should not hesitate to resolve the tension in favor of the Constitution’s original meaning. For the reasons I have given, and for the reasons given in Justice O’Connor’s dissent, the conflict of principle raised by this boundless use of the eminent domain power should be resolved in petitioners’ favor. I would reverse the judgment of the Connecticut Supreme Court.

Bravo, Justice Thomas. Now, can we start a campaign to elevate Janice Rogers Brown to the Supreme Court so that Thomas won’t be entirely alone so often?

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2 Responses to “SCOTUS: gov’t. power unlimited”

  1. Anonymous said

    I’m a full-on supporter of property rights. But [ I think ”Kelo” properly decided]–and indistinguishable from [ ”Midkiff.”]

    Unrestricted eminent domain would be unconstitutional. But ”Kelo” demands no such thing. The Constitution doesn’t compel Federal Courts to substitute their judgment for elected municipal officials.

    ”Kelo” is a pro-conservative, pro-Federalism decision that bolsters a bit of judicial deference commonly confined to the legal endangered species list. Not all developers are scum; not every Mayor’s on the take–if the are, call the cops and vote against crooked councilmen next November. Isn’t that what we tell liberals?:

    “The fact remains that state and local governments have a fair amount of power under our constitution to enact either. We often tell folks on the left that not every social ill should be cured by the courts, and that should apply no less when “conservative” interests are at stake.”

    Connecticut has the right to be socialist–and I have the right not to live in Connecticut.

    I’m quite conservative–which is why I’m puzzled that ”Kelo” critics on the Right sound like anti-Wal-Mart kooks. Look to state and municipal government, not federal courts, for redress. And don’t assume the sky is falling.

  2. Anonymous said

    I vehemently disagree in this new post. Connecticut ”doesn’t” have the right to be socialist. The critics I’ve read ”don’t” sound like anti-Wal-Mart kooks. And if this is conservatism, I’m glad I’m not one.

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