PolySciFi Blog

I still should be writing on something different, but I promised a follow up on Originalism to Scott a week or so ago and most of this was written then...

In a comment to my post arguing in favor of originalism (or KFC - Give me another Thomas or give me chicken!), Scott offers a criticism of an Originalist interpretation of Kelo as well as three scenarios that he would like me to address from an Originalist perspective.

His criticism (paraphrased - it's a lengthy argument, perhaps better presented as a blog post like his original post on Kelo which I would really briefly summarize as "Outcome bad, but Constitutional; time to amend" - as always feel free to correct me if I'm mischaracterizing) is that all sorts of things that we think are good takings as well as some things that would be bad takings (I infer) were not considered when the takings clause was drafted and thus Originalism can't address them.

But here, Scott is making a common error in his criticism of Originalism. The key to originalism is identifying the principle that the legislators were trying to enact (in the case of an amendment, the legislators become the public at large). New, unconceived specifics, are merely judged against the original principle, particularly on Constitutional questions. If there is no principle to judge the case by, then an Originalist judge would punt to the legislatures.

Helpfully, Scott introduces the following series of Kelo-like situations that can be used to illustrate how originalism fits specifics into Constitutional principles:

1. Can a city condemn blighted property not only to raise tax revenues, but because said property is spreading crime and lowered values throughout the city?
2. Can a city condemn private property to build a freeway? How about if a private business asked for the freeway, such as in the case of a football stadium?
3. Can a city condemn land to build a city hall? What if they did so and gave the old city hall to a private developer that had been asking for the land?

The fundamental question in all three scenarios (or five if we break the questions apart) is, "Under what conditions can the government seize property?"

To answer this question let's review the principle written in Thomas's dissent from Kelo:

"The most natural reading of the [Takings] Clause is that it allows the government to take property only if the government owns, or the public has a legal right to use, the property, as opposed to taking it for any public purpose or necessity whatsoever. "

Breaking down this principle we see that there are two different conditions for a public taking:

1. The government owns the property.
2. The public has a legal right to use the property.
   

These are not the only reasons that the government may seize property. Indeed, the government may seize property as a punishment as long as due process is served and the punishment is not cruel and unusual. After all, a fine, the IRS forclosing on your house, and seizing property used in the commission of a crime all constitute government takings, but not public takings.

With that brief discussion in mind, the following addresses each of Scott's scenarios. Note throughout the following I differentiate between a public taking (the government takes your property for the public good) and a punishment taking (the government takes your property as a punishment).

1. Can a city condemn blighted property not only to raise tax revenues, but because said property is spreading crime and lowered values throughout the city?

Yes.

But the phrasing as such is that there are actually four conditions (presumably simultaneously satisfied), which if any one condition is satisfied, then the scenario is a valid government taking. However, if we break apart the conditions, then we come to different conclusions.

Condition 1: Blighted property - Yes.

This is not really a public takings, but it's not one that gets my blood boiling. That's because taking blighted property is the maximum fine for not living up to building/zoning laws and technically isn't a taking for public use. (If this formulation sounds ripe for abuse, that's because it is.)¹

Condition 2: Raising taxes - No,

There's no public use that the property will be applied towards and there's no other grounds by which it can be condemned.

Condition 3: Spreading crime - Yes.

While Scott isn't specific as to what he means by "spreading crime," I interpret a property to be spreading crime if crimes are being committted there and if it is in someway facilitating crime - like a crack house (but for the Blacksburg readers, not "The Crack House" where numerous crimes of underage drinking occured). In this case the property in question is aiding the commission of a crime and can be seized (like drug money or cars that were transporting drugs) as long as due process is served.

Again, this is not a public takings, but the property is permissable to be condemned.

Condition 4: Lowering values - No. There's no public use that the property will be applied towards and there's no other grounds by which it can be condemned.

2. Can a city condemn private property to build a freeway? How about if a private business asked for the freeway, such as in the case of a football stadium?

Yes.

While this may appear to be multiple conditions like in the previous example, there's really only one condition - a taking to build a freeway. A freeway is both owned by the government and the public has a legal right to use the property. That the freeway may also facilitate or was prompted by private interests is irrelevant.

3. Can a city condemn land to build a city hall? What if they did so and gave the old city hall to a private developer that had been asking for the land?

Yes.

A city hall is government owned property. Subsequent or prior actions with respect to the old city hall are irrelevant to the public taking. However, if the property were truly "given" to a private developer, then corruption charges should be filed against the city officials that authorized the taking.

So to reiterate the two key points in this discussion:

1. Originalism matches up specifics with their associated original principles. If there is no previously legislated controlling principle for the specific, then the judges cannot rule and must defer to the legislatures.
2. The specific principle of a public taking is that the property must either a) end up in government hands or b) the public must have a legal right to use property [previous brain/type fart in b) has been fixed]. All of Scott's scenarios are readily addressed by this public takings principle which Thomas's scholarship says is the original intent of the public takings clause.
   

As a final note, consider again my argument against Kelo in light of this discussion:

"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."

Not publicly owned + no legal right for the public to use the property = not a Constitutional public taking.

While I am heartened that numerous state legislatures have been moving to limit the impact of this ruling, there never should've been a need for such action in the first place.
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