PolySciFi Blog

Friday, June 24, 2005


Why Kelo is such a bad decision

Yesterday, I hinted at my extreme displeasure with the Kelo et al v New London decision. Today I'm spelling out exactly why I think this was a horrible decision.

First, let me explain a little bit about my (apparently naive) interpretation of the separation of powers in the US government. The Legislative branch legislates, the Executive branch executes laws, and the Judicial branch adjudicates. [ed - Wow, Jody, that's quite the tautological description of the powers of the branches - well, it's the natural result of believing that words should have specific meanings]

For the Supreme Court (as opposed to the other courts), I expect them to perform the following functions:
So when evaluating a decision by the Supreme Court, I don't really care if the effect of the ruling is good or bad (well, I care, but it's not the metric I use to evaluate the Court). Rather, I care if they correctly decide the legality of an action or the constitutionality of a law. If the outcome is bad, but legal (action) or constitutional (law), then that's reason to change the law or amend the Constitution and it's not the place for the Court to perform either of those actions (it's the place of the Legislature and the Legislature and the states, respectively). Of course, if the decision is wrong and with ill-effect, then it's doubly depressing as a bad decision gives little confidence that even changing the law will result in a good outcome.

As I'm arrogant enough to defer to no one on a logical issue based on their position or level of certification (though I can be swayed by a well-reasoned and well-constructed argument from anyone), I feel no compunction in saying that the Supreme Court got a decision right or wrong. But applying the same rationale to myself, I do endeavour to give a well-reasoned and well-constructed argument supporting my opinion.

The following is my (hopefully) well-reasoned and well-constructed argument on why Kelo was a bad decision (I'll let the ill effect speak for itself).

The facts
The following are the facts of the case as summarized in Stevens (majority) opinion:
In 2000, the city of New London approved a development plan that, in the wordsof the Supreme Court of Connecticut, was projected to create in excess of 1,000 jobs, to increase tax and other revenues, and to revitalize an economically distressed city, including its downtown and waterfront areas.lo 268 Conn. 1, 5, 843 A. 2d 500, 507 (2004). In assembling the land needed for this project, the city's development agent has purchased property from willing sellers and proposes to use the power of eminent domain to acquire the remainder of the property from unwilling owners in exchange for just compensation. The question presented is whether the city's proposed disposition of this property qualifies as a "public use" within the meaning of the Takings Clause of the Fifth Amendment to the Constitution. (hyperlink added)
The Takings Clause as footnoted in the syllabus:
"[N]or shall private property be taken for public use, without just compensation." That Clause is made applicable to the States by the Fourteenth Amendment. See Chicago, B. & Q. R. Co. v. Chicago, 166 U. S. 226 (1897)." [emphasis added]
As a brief aside, I'm of the opinion that the second sentence of the first section of the 14th amendment (the basis for the above decision) was superfluous as the supremacy clause already established that the States had to follow the 5th amendment to ensure due process and what not.

My argument against the ruling
Taking land and giving it to another private entity (assuming it's not a private company that provides a government sanctioned monopolistic public service ala TVA - a kind of "common carrier") does not constitute a "public use". That this is not public use is made clear in section (a) of the syllabus where the following appears: "the city is not planning to open the condemned land–at least not in its entirety–to use by the general public".

Thus the proposed actions of the New London city council (a quasi legislative/executive entity) are unconstitutional in clear violation of the takings clause.

The arguments in favor of the ruling and why they're wrong
The following recreates all the arguments that I am aware of made by the majority in favor of the ruling and is followed by my responses. (If you know of other arguments in favor whether in the decision or from the blogosphere, leave them in the comments and I'll add them to the list that I am responding to them.)

"Public use" doesn't mean "public use"
Here, I'm catching a number of different arguments under a single heading, but they all make the same basic argument that public use doesn't really mean public use.

Using the argument from the syllabus as representative (the continuation of the quote above)
[T]he Court long ago rejected any literal requirement that condemned property be put into use for the … public.” Id., at 244. Rather, it has embraced the broader and more natural interpretation of public use as “public purpose.”
Point (b) in the summary makes a similar argument:
"To effectuate this plan, the city has invoked a state statute that specifically authorizes the use of eminent domain to promote economic development. Given the plan’s comprehensive character, the thorough deliberation that preceded its adoption, and the limited scope of this Court’s review in such cases, it is appropriate here, as it was in Berman, to resolve the challenges of the individual owners, not on a piecemeal basis, but rather in light of the entire plan. Because that plan unquestionably serves a public purpose, the takings challenged here satisfy the Fifth Amendment." [emphasis added, link added in straylight's syllabus]
Kennedy's opinion makes a similar point and refines public purpose somewhat to say that while economic development (the motivation of New London's actions) is permissable, favoring a particular private entitiy is not ok.

My response:

In addition to the fact that legal documents (and especially Constitutional amendments) are written with the intent of being very specific in meaning, as Thomas argued (p5), if a broader meaning of public use was intended, then the phrase "general welfare" would've been used as it was elsewhere in the Constitution.
Tellingly, the phrase "public use" contrasts with the very different phrase "general Welfare" used elsewhere in the Constitution. See ibid. ("Congress shall have Power To . . . provide for the common Defence and general Welfare of the United States:); [preamble (Constitution established iito promote the general Welfare)]. The Framers would have used some such broader term if they had meant the Public Use Clause to have a similarly sweeping scope."
Thomas (being quite the originalist) provides quite the tour-de-force on what "public use" was intended to mean. I highly recommend reading his opinion. Note I am an originalist so I believe if you want the law or Constitution to mean something different than what was originally voted on and agreed by the public, then it should be addressed via legislative process. Also note that the majority opinion explicitly agrees that the Court is applying the standard of "public purpose" and not of "public use".

The Court is Bound By Precedent
The remainder of the syllabus's argument in (a) of the syllabus (and most of the discussion of Stevens) effectively says that since the Court has ruled in the past ("long ago ruled") in favor of broad interpretations of "public use" the Court is bound by precedent.

My response:

Like fun it is. Lower courts are bound by precedent, but not the Supreme Court. See for example Brown v Topeka or Lawrence v Texas.

In addition, the original meaning of a law/document is a precedent, is it not? (Specifically a precdent of custom.) In the majority's opinion and the dissent's opinion precedents are thus in conflict - a strong indication that the Court need not be bound by precedent in this case.

It's too hard to say what is public use and not public use

From the Syllabus (c):
"Petitioners’ proposal that the Court adopt a new bright-line rule that economic development does not qualify as a public use is supported by neither precedent nor logic. Promoting economic development is a traditional and long accepted governmental function, and there is no principled way of distinguishing it from the other public purposes the Court has recognized."
My response:

This only makes sense if you erroneously confuse public use with public purpose. For those who aren't confused on the difference in meaning between "public use" and "public purpose" we can make use of wizbang's bright line, or the categorization suggested in O'Connor's opinion (p5-6): the taking results in 1) public ownership, 2) ownership by a common carrier, or 3) private ownership when it eliminates a harmful use (the unsafe to live in condemnation). 1,2,3

In brief, my argument is "public purpose" is not the same thing as "public use". If "public purpose" was intended, then "public purpose" or "general welfare" would've been used instead of "public use".

I have seen nothing in the majority decision or elsewhere to convince me that public purpose is the same as public use. From my perspective, the Supreme Court has grossly misread the takings clause.

1. 3 is problematic if you believe the Court is bound by the precedent of the Berman case as Stevens points out (Footnote 16) . In the Berman case, which I believe was wrongly decided, there was a neighborhood where most of the houses were unliveable, i.e., blighted. The entire neighborhood was then seized, including those properties that were not blighted and given over for development. Clearly Berman fails this test. Stevens uses the error in O'Connor's analysis of Berman with respect to 3 to claim to justify that no bright line between private and public use can be established. I, however, use the fact that Berman fails the test to justify that Berman was decided incorrectly.

However, O'Connor correctly notes that Kelo does not satisfy the conditions of Berman as no houses were considered blighted in Kelo.

2. Footnote 1 gives a nice example of why I dislike Hannity even though I often agree with his positions. Hannity, in my judgement, generally makes poorly thought out arguments in support of his positions. In general, poorly thought arguments don't affect me one whit whether for or against a position of mine. However, when Hannity who has a large public following makes a bad argument for a position I support, it weakens public support for that position as the public reaonably assumes that the rationale for the position is Hannity's rationale.

3. I interpret seizing someone's home for unliveable conditions as the most extreme penalty for completely failing to satisfy building codes and not as an application of the takings clause. So I wouldn't include condition 3 as a use of the takings clause, but I wouldn't deny the power to the government either.


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