June 24, 2005

More Kelo

Ann Althouse is fairly sanguine about the ruling. I find it very hard to believe that Stevens has a better handle on the correct interepretation of "public use" than O'Connor, Scalia, or Thomas, but she does make some interesting points.

There's also a noteworth discussion on Kelo going on at The Corner.

Jonathan Adler writes:

I don't understand why conservatives are evaluating a Supreme Court decision primarily on the basis of what it allows state and local governments to do. I find the use of eminent domain for economic development to be obscene and immoral. I feel the same way about laws against consenting sexual activity conducted in private by adults. But 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.
Adler seems to be getting at a critique of incorporation, the accepted (but questionable) theory that the 14th Amendment extends the limits placed on Congress by the Bill of Rights to state and local governments. Mark Levin responds:
If the proposition, not plainly stated, is objection to the incorporation doctrine, that is certainly a debate worth having. However, it clearly was not an issue here, as the matter has been settled (at least for now) by the Court itself.
Andrew McCarthy echos that sentiment:
Jon, if we could rewind the clock such that there was no incorporation doctrine, or at the very least such that the Takings Clause was not incorporated, I think you’d have the better of this argument. I would far prefer a construct where the feds butt out and local power grabs were handled locally. There would still be occasional abuses, but at least we would not have what we have now: a national policy that Peter may be robbed for nothing more than the benefit of Paul.

Alas, it is too late in the day to argue for that. So, don’t we have to acknowledge that the Supreme Court is the proper forum for vindication of the citizen’s private property rights against takings by the state?

I would gladly take the Kelo ruling if I thought it meant the Court was retreating from interventions at the local level, but that's surely not the precedent that the liberal majority means to set. That leaves the question to one of interpretation, on which the Cornerites have an interesting intra-originalist disagreement. Adler:
And while I would like to read "public use" as a strict limitation on government use of eminent domain for a small set of purposes, there is little warrant for this interpretation in either the ratification history or the court's jurisprudence of the past 100 years or so... I don't like the practical result any more than you, and I wish a stronger originalist case could be made on the landowners' behalf. Alas, Justice Thomas' inspiring dissent notwithstanding, I don't believe that is the case.
Jonathan, let me put it this way: If the framers meant "public use" to include the seizure of one citizen's private property for delivery to another citizen, you'll have to provide some historical evidence to support such a proposition. You can't. To argue that there's no history disproving such a conclusion is to ask for proof of a negative... State authority exists where the Constitution is silent. That's not just my opinion. That's what the Tenth Amendment says.
Moreover, while there may be little in the to be gleaned specifically from the ratification history about the original understanding of “public use,” I thought Justice Thomas provided a pretty impressive explication of what “public use” was understood to mean at the time of ratification, based on both the text of the Constitution itself (e.g., Thomas distinguishes the Fifth Amendment’s narrow term, “public use,” with the Framers’ choice of the broader “general Welfare” elsewhere in the Constitution, stressing that “public use” was a crucial limitation, not a sweeping grant, of government power) and commentary from Blackstone (e.g., “the law of the land … postpone[s] even public necessity to the sacred and inviolable rights of private property”) (1765).

Aside from ratification history, you also say – and I completely agree – that based on “the court's jurisprudence of the past 100 years or so[,]” there is little warrant for the narrow construction, which Thomas urges. But isn’t the whole point of originalism that the Court’s jurisprudence has strayed from the Constitution’s true meaning? And that the Court itself is the best place to put that right? If we’re going to say we’re stuck with the last hundred years of what the Court has made of the Constitution, originalism is dead.

To be clear, I raise these points cautiously because there is something very puzzling to me about all this: Why didn’t Justice Scalia sign on to Justice Thomas’s dissent? We know Scalia believes passionately in originalism, and we know where he stood on the bottom line of the case, since he joined Justice O’Connor’s dissent. But he did not join with Thomas, who agreed with O’Connor but dissented separately because he didn’t think she made the case for the original understanding of the Takings Clause.

Does this mean Scalia thinks Thomas is wrong? Or that Scalia didn’t think it was necessary to go beyond what O’Connor wrote (which I would find hard to believe given Scalia’s track record of trying to push the law back to the original understanding)? I wonder.

Actually, I think Raich made it pretty clear that "Scalia’s track record of trying to push the law back to the original understanding" is spotty-- a point that Ramesh Ponnuru makes as the discussion continues.

Posted by John Tabin at June 24, 2005 10:27 AM