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:: A constitutional law blog by Scalia/Thomas fan David M. Wagner, M.A., J.D., Research Fellow, National Legal Foundation, and Teacher, Veritas Preparatory Academy. Opinions expressed here are those of the author and do not reflect those of the NLF or Veritas. :: bloghome | E-mail me ::

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    :: Thursday, June 23, 2005 ::
    Kelo: O'Connormania

    That's quite a performance in the principal dissent in this morning's disastrous Kelo decision! Justice O'Connor is not known for staking out broad philosophical ground, and neither Justice Scalia nor the Chief is known for invoking natural law. Yet the dissent written by O'C and joined by the others and Thomas opens with nothing less than Justice Chase's hymn to natural-law judging from Calder v. Bull!

    Here it is, as cited by O'C:
    “An act of the Legislature (for I cannot call it a law) contrary to the great first principles of the social compact, cannot be considered a rightful exercise of legislative authority … . A few instances will suffice to explain what I mean… . [A] law that takes property from A. and gives it to B: It is against all reason and justice, for a people to entrust a Legislature with such powers; and, therefore, it cannot be presumed that they have done it.” Calder v. Bull, 3 Dall. 386, 388 (1798) (emphasis deleted).
    Now, to be sure, O'C cushions this quotation so as to make it sound as though Chase were construing the Bill of Rights. She does this be prefacing the quotation with:
    Over two centuries ago, just after the Bill of Rights was ratified, Justice Chase wrote....
    But fans of Major League Natural Law-ball will see past this veil that O'C modestly draws over her reversion to First Principles.

    With humility very rare in any high governmnent officeholder, she acknowledges "errant language" in an opinion she herself wrote, namely Midkiff, which the majority relies on and extends:
    There is a sense in which this troubling result follows from errant language in Berman and Midkiff. In discussing whether takings within a blighted neighborhood were for a public use, Berman began by observing: “We deal, in other words, with what traditionally has been known as the police power.” 348 U.S., at 32. From there it declared that “[o]nce the object is within the authority of Congress, the right to realize it through the exercise of eminent domain is clear.” Id., at 33. Following up, we said in Midkiff that “[t]he ‘public use’ requirement is coterminous with the scope of a sovereign’s police powers.” 467 U.S., at 240. This language was unnecessary to the specific holdings of those decisions....
    It's so good to read an O'Connor dissent that gets a little hot under the collar. So often, whether for the Court or concurring or dissenting, she's in a "Now you boys quit fighting and settle down" kind of mode. Today she's throwing punches.
    [W]ere the political branches the sole arbiters of the public-private distinction, the Public Use Clause would amount to little more than hortatory fluff.
    Now, does today's decision follow from Midkiff and its predecessors? Certainly I had thought that Midkiff virtually turns the Takings Clause's public use requirement into nothing more than a pleading formality, and that fidelity to the Takings Clause would require that Midkiff be overruled. Justice Thomas calls in that direction, as we will see. But the principal dissent, which Thomas has also signed, insists there was a meaningful judicial role even after Midkiff, until today:
    The Court’s holdings in Berman and Midkiff were true to the principle underlying the Public Use Clause. In both those cases, the extraordinary, precondemnation use of the targeted property inflicted affirmative harm on society–in Berman through blight resulting from extreme poverty and in Midkiff through oligopoly resulting from extreme wealth. And in both cases, the relevant legislative body had found that eliminating the existing property use was necessary to remedy the harm. Berman, supra, at 28—29; Midkiff, supra, at 232. Thus a public purpose was realized when the harmful use was eliminated. Because each taking directly achieved a public benefit, it did not matter that the property was turned over to private use....

    It was possible after Berman and Midkiff to imagine unconstitutional transfers from A to B. Those decisions endorsed government intervention when private property use had veered to such an extreme that the public was suffering as a consequence. Today nearly all real property is susceptible to condemnation on the Court’s theory. In the prescient words of a dissenter from the infamous decision in Poletown, “[n]ow that we have authorized local legislative bodies to decide that a different commercial or industrial use of property will produce greater public benefits than its present use, no homeowner’s, merchant’s or manufacturer’s property, however productive or valuable to its owner, is immune from condemnation for the benefit of other private interests that will put it to a ‘higher’ use.” 410 Mich., at 644—645, 304 N. W. 2d, at 464 (opinion of Fitzgerald, J.).

    Justice Thomas contributes an additional dissent, being once again the prophetic voice of original meaning, and, ahem, it sure would have been nice if Justice Scalia could have seen his way clear to joining this one, since it's so much in the spirit of his opinion for the Court in Nollan v. Coastal Commission and his partial concurrence/partial dissent in Pennell v. San Jose. Anyway.

    After a tour of founding-era dictionaries and early takings jurisprudence, Thomas then rubs the majority's nose in the Peckhamite origins of its theory:
    As the Court notes, the “public purpose” interpretation of the Public Use Clause stems from Fallbrook Irrigation Dist. v. Bradley, 164 U.S. 112, 161—162 (1896). Ante, at 11. The issue in Bradley was whether a condemnation for purposes of constructing an irrigation ditch was for a public use. 164 U.S., at 161. This was a public use, Justice Peckham declared for the Court, because “[t]o irrigate and thus to bring into possible cultivation these large masses of otherwise worthless lands would seem to be a public purpose and a matter of public interest, not confined to landowners, or even to any one section of the State.” Ibid. That broad statement was dictum, for the law under review also provided that “[a]ll landowners in the district have the right to a proportionate share of the water.” Id., at 162.
    And so on. Peckham, Peckham, Peckham! Yes, the Court is relying on a constitutional turn taken while the author of Lochner was driving, but the Court can't bring itself to say so, so Justice Thomas will, frequently.

    As he occasionally does, Thomas makes himself the spokesman for the likely effects of the Court's decision on African-Americans, effects that of course are the opposite of what the liberal authors of those effects publicly intend:
    Allowing the government to take property solely for public purposes is bad enough, but extending the concept of public purpose to encompass any economically beneficial goal guarantees that these losses will fall disproportionately on 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,” United States v. Carolene Products Co., 304 U.S. 144, 152, n. 4 (1938), surely that principle would apply with great force to the powerless groups and individuals the Public Use Clause protects....

    ....In the 1950’s, no doubt emboldened in part by the expansive understanding of “public use” this Court adopted in Berman, cities “rushed to draw plans” for downtown development. B. Frieden & L. Sagalayn, Downtown, Inc. How America Rebuilds Cities 17 (1989). “Of all the families displaced by urban renewal from 1949 through 1963, 63 percent of those whose race was known were nonwhite, and of these families, 56 percent of nonwhites and 38 percent of whites had incomes low enough to qualify for public housing, which, however, was seldom available to them.” Id., at 28. Public works projects in the 1950’s and 1960’s destroyed predominantly minority communities in St. Paul, Minnesota, and Baltimore, Maryland. Id., at 28—29. In 1981, urban planners in Detroit, Michigan, uprooted the largely “lower-income and elderly” Poletown neighborhood for the benefit of the General Motors Corporation. J. Wylie, Poletown: Community Betrayed 58 (1989). Urban renewal projects have long been associated with the displacement of blacks; “[i]n cities across the country, urban renewal came to be known as ‘Negro removal.’ ” Pritchett, The “Public Menace” of Blight: Urban Renewal and the Private Uses of Eminent Domain, 21 Yale L. & Pol’y Rev. 1, 47 (2003). Over 97 percent of the individuals forcibly removed from their homes by the “slum-clearance” project upheld by this Court in Berman were black. 348 U.S., at 30. Regrettably, the predictable consequence of the Court’s decision will be to exacerbate these effects.

    A bad day for ordered liberty, but a good day for dissents, and that's about all I've learned to hope for from this Court.

    One reads a lot about this terrible "conservative activist" Court that we have. If the Court was "conservative" even for a brief interval, that era stopped when Justice Ginsburg replaced Justice White. As Kelo and Raich show, to say nothing of the abortion cases since Hodgson, the Court has working liberal majority. The only exception has been the substantial relaxation, throughout the '90s and early '00s so far, of the Court's extermination campaign against religion in the public square. And I'm betting that trend will be reversed next week when we find out that Establishment Clause bans public placement of the Ten Commandments.

    :: David M. Wagner 8:33 PM [+] ::

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