Wednesday, June 29, 2005
Would Madison have hated Kelo?
I'm seeing lots of statements online to the effect of "the Founders would have hated the result in Kelo." (See here for one example). I disagree --given the facts of the case, I doubt that James Madison would have batted an eyelash over the result.
James Madison, after all, didn't design a takings clause that protected against state or local action at all. He designed a takings clause that protected against federal action. If the City of New London had passed an ordinance in 1792, taking exactly the same property for exactly the same reasons, it is all but certain that Madison wouldn't have felt that the federal takings clause had any application at all to the case.
Now Madison might not have agreed with the Kelo opinion as applied to federal takings. But then, he might have agreed with that as well. Recall that not even Justice Thomas could find much evidence that Madison felt that "public use" should be construed narrowly.
If anything, Madison would probably wonder why courts today give the clause as much bite as they do. Madison's clause didn't protect against government regulations (that didn't come along until Mahon). And, as noted above, it didn't protect against state actions. Today, courts enforce the clause against both state actions and regulatory takings, giving property vastly greater protection than it enjoyed in 1792.
The takings clause as interpreted today -- including Kelo -- protects property quite a bit more than the takings clause did as interpreted in 1792. If Madison were shocked about takings jurisprudence, post-Kelo, his shock would probably stem from the vastly expanded property protection that the takings clause -- yes, post-Kelo -- gives property owners.
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Well, presumably if Madison were alive today and we began pestering him for his take on all of the pressing Supreme Court cases of the day, one of the first things we would have to do would be to bring him up to date on the incorporation doctrine and debate. Of course, on the merits of incorporation Madison wouldn't have much to contribute, since he was dead long before the 14th Amendment was ratified, it's far from clear whether Takings Jurisprudence as applied to real property would shock him or why on earth his shock should be relevant.
This is like suggesting that it should matter that George Washington would be shocked to learn that we let women vote.
Now, I am dubious of this whole one-person's-views-as-representative-of-the-original-public-meaning-of-a-clause-in-the-constitution schtick but if we got John Bingham and James Madison together in a room and had them hash out the meaning of the incorporated 5th, that would be pretty cool.
Posted by: Will Baude | Jun 30, 2005 11:23:05 AM
And for what (little) it is worth, some claim that Madison had hoped to bind the states with BoR but couldn't get Congress on board. Warren, The New "Liberty" Under the Fourteenth Amendment, 39 HARV. L. REV. 431, 433-35 (1926). I haven't read the article, and can't get it until tonight, so I rely on the parenthetical summary in 14 B.C. Envtl. Aff. L. Rev. 653.
Posted by: Will Baude | Jun 30, 2005 11:31:51 AM
I am being neither facetious nor cynical. The government in Madison's day was taking land from "Indians not Taxed" and giving it to white settlers, either citizens or future citizens. I think he would think Kelo just fine.
Posted by: nk | Jul 1, 2005 6:39:11 PM