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Monday, June 27, 2005
Late to the Party on Kelo: If there ought to be a law. . . .
I know I am late to the party on Kelo, and anything I say is going to get swallowed up by commentary on other Supreme Court news that will come out today. But I can't resist.
First, I find myself in complete agreement with Kaimi. If you disagree with the outcome in Kelo, then you disagree with a century of precedent. That's fine, of course, but don't seem so shocked that the Supreme Court would . . . adopt precedent.
Second, for those who vehemently oppose Roe, Lawrence, Goodridge, and other such cases on the grounds that they undermine democratic majoritarianism, you should embrace the Kelo ruling wholeheartedly. After all, Kelo is the triumph of the majority will.
Indeed, just as you believe that judges have no better insight than legislators regarding the moral value of a fetus or the meaning of marriage, it is hard to imagine that judges have better insight into the likelihood that a development will produce public benefit than the legislators and the experts they hire to evaluate the project.
And if you think that there ought to be a law against this kind of taking . . . pass one. Majoritarian democracy is a beautiful thing.
The truth is that everyone agrees that some things trump majoritarianism. We just disagree on what. We can argue about what should trump majoritarianism (equality, property rights, etc), but it gets tiresome when conservatives truck out the counter-majoritarian difficulty as an argument in itself against such decisions as Roe, Lawrence, and Goodridge.
Note: I am not taking a stand here on whether Roe, Lawrence, Goodridge, or Kelo were correctly decided. I'll leave that for another day. I'm only arguing that those who oppose Roe and the rest on the basis of majoritarianism should embrace Kelo--on the grounds of majoritarianism.
Posted by Hillel Levin on June 27, 2005 at 10:22 AM in Constitutional thoughts | Permalink
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» Garnett v. Merrill from The Federalist Society at Yale Law School
Below, I'll be posting thoughts on the debate between Professor Merrill and Professor Garnett on Kelo, currently ongoing. [Visiting property law luminaries Lee Anne Fennell and Eduardo Penalver are currently milling around near the front of the room.] ... [Read More]
Tracked on Sep 22, 2005 9:23:39 PM
» Garnett v. Merrill from The Yale Law Federalist Society
Below, I'll be posting thoughts on the debate between Professor Merrill and Professor Garnett on Kelo, currently ongoing. [Visiting property law luminaries Lee Anne Fennell and Eduardo Penalver are currently milling around near the front of the room.] ... [Read More]
Tracked on Sep 27, 2005 2:14:16 PM
» Garnett v. Merrill from The Yale Law Federalist Society
Below, I'll be posting thoughts on the debate between Professor Merrill and Professor Garnett on Kelo, currently ongoing. [Visiting property law luminaries Lee Anne Fennell and Eduardo Penalver are currently milling around near the front of the room.] ... [Read More]
Tracked on Sep 27, 2005 2:16:16 PM
Comments
"If the majority is concerned with this kind of taking, they need not rely on a debatable constitutional principle. All they need to do is pass a local, state, or federal law of the normal sort that prevents takings for 'private development.'"
Also, C.f. The Protection of Homes, Small Businesses, and Private Property Act of 2005.
Posted by: Will Baude | Jun 27, 2005 4:20:23 PM
"If the majority is concerned with this kind of taking, they need not rely on a debatable constitutional principle. All they need to do is pass a local, state, or federal law of the normal sort that prevents takings for 'private development.'"
Indeed, and some are, some will. (N.B., it is not obvious to me whether a federal law that purported to restrict state takings for private development would be constitutional; with the current lineup, it would probably withstand scrutiny as a commerce-clause law, with a different lineup it might be permissible under 14.5, but neither ground is totally secure.)
Of course, other jurisdictions won't pass such a law because the relevant political alignments have changed, and still others won't pass them because of the force of legislative inertia or political apathy or whatever, and still other jurisdictions won't pass them because they never desired such a law in the first place. This is federalism, and it is fine by me so far as it goes, but it is, I should think, *absolutely and completely irrelevant* to the legal question that faced the Court, which should have been two things-- the state of econ-development takings after Midkiff and Berman, and the viability of Midkiff and Berman.
The first point, the precedent point, is indeed debatable. Berman and Midkiff contain sweeping language, and certainly the Berman and Midkiff Courts would not have ruled for Ms. Kelo. But it is only holdings that have precedential force, so the close analysis is indeterminate. This is why O'Connor goes one way but Kennedy goes the other.
The second point, though, remains utterly engaged by the majority opinion, and is the more problematic part. If the Supreme Court were to insist, with Marty Lederman, that there is no Public Use clause, that would be one thing, but to confuse Supreme Court decisions with "law" is problematic.
Posted by: Will Baude | Jun 27, 2005 2:38:18 PM
I really don't want to get into the Kelo battle, because I'm badly torn. Not on the law: I agree that it just follows mounds of precedent (particularlly that Hawaii case). But on the principle: why should the state be able to take someone's home and give it to some corporation for "development" work. Why should they use their supposedly-for-the-public-good power for baseball stadiums?
I'm with the conservatives here to the extent that I think that the local government behavior at issue is outrageous, although I'm with the most radical liberals on a judicial philosophy that says, roughly, "majoritiarianism be damned, let the courts smack this legislative idiocy down."
We need a definition of the public good that has some restraints.
In effect, the question with Kelo is exactly the question that was at issue with Eldred: (nnoooooo! I already have too many writing projects!!!! fingers to brain: give us ideas at a more regulated pace!!) to what extent will a limiting clause on an enumerated power that, if overused, could swallow the power whole, be applied? How limited must limited times be? How public must public use be?
And like Lessig in Eldred, I say there's gotta be SOME limit! Suppose some city officials got together and decided to take property by eminent domain and give it to a company run by their brothers? Suppose they decided that "economic development" meant fast food, bars, and strip joints? Suppose they used the power to retaliate against their political opponents: if you run against the mayor, your house gets taken and sold as an abattoir for "economic development?" Or better, your next-door-neighbor's house gets turned into an abattoir, then when the land values crash, your property is bought for pennies on the dollar?
Since the courts can't effectively police this sort of hidden motive, they've got to draw a line in terms of the overt uses. Some uses have got to be non-public.
Posted by: Paul Gowder | Jun 27, 2005 2:21:08 PM
Will: If the majority is concerned with this kind of taking, they need not rely on a debatable constitutional principle. All they need to do is pass a local, state, or federal law of the normal sort that prevents takings for "private development." Of course, you'll never be able to draw the line between a private development and a public one in a coherent manner, unless you want a REALLY bright line that says "there can be takings only if the government itself is actually going to build the thing." Even then, a meaninful distinction seems impossible, because what if the government intends to build the thing, but then can't--and so sells it to a private developer? Or if it builds the thing and then sells it to someone else to manage? Besides, my friends on the right generally trust private developers to work more efficiently--indeed, more in the public interest--than do public developers. As for precedent, I think you are grasping at straws. It would not have been a shock if Kelo had gone the other way in a 5-4 decision, but it would have been something of a surprise. New London acted precisely as one would have predicted it to based on prior case law.
Plainsman: I'm not certain who you are referring to as "most critics on the right," and perhaps we are talking about different people. I'm thinking of the people who trot out Bickel's counter-majoritarian difficulty each time the subject of Roe, Lawrence, or Goodridge comes up. (Mind you, not all of these people are on the right.) Considering that the countermajoritarian difficulty is the key constitutional issue of the past 50 years, I think I am on firm ground when I argue that lots of people oppose Roe (at least rhetorically) on majoritarian grounds. And considering that Scalia and Thomas (and dozens of commentators) regularly denounce Roe and its ilk as countermajoritarian (in addition to their other beefs with it), I again beleive that I am on firm ground.
Further, your distinction between Roe/Goodridge and Kelo is a mirage. Yes, judges must interpret what a "public use" is. They must also determine what "equal protection" means. (Please note that I think Roe's grounds were wrong.) And, of course, judges generally decide "where the constitution" speaks, for better or worse. At the end of the day, what divides Goodridge-like judges from Kelo-like judges is as much their belief about vying principles (equality vs. majoritarianism or private property vs. majoritarianism) as it is about crass politics or high-minded interpretation.
As for the meaning of "public use," I grant you that there can be a debate about this. Although I doubt whether one side can "win" such a debate on an intellectual level, regardless of what kind of evidence she trots out, since the framers probably didn't have any thoughts whatsoever on whether raising the tax roles of a blighted city through private development could be considered "public use." But put that question aside. Are you really telling me that the blawg and MSM headlines that scream "CITY CAN TAKE PROPERTY!!!" are really arguments about the meaning of the words "public use"? Put differently, if New London were going to develop the land itself exactly as Pfizer would (taking on more financial risk onto the public roles, while they are at it), would people be any less offended? Hardly. People are offended, not by the misinterpretation of "public use," but by the fact that the majority can vote to confiscate their land. I can understand the frustration; and I might even support a ballot measure preventing it, I haven't really thought about it. But the public reaction is about "MY PROPERTY!" much more than it is about Hamilton's intent.
Posted by: Hillel Levin | Jun 27, 2005 1:37:21 PM
Most critics on the legal right don't claim decisions like Roe, Lawrence et al. were wrong because they offend some broad inchoate policy preference for majoritarianism; they claim they're wrong because they were not authorized by law.
The difference between Kelo and Roe, for the critics, is as simple and total as this: while the constitution doesn't contain any language authorizing judges to make judgments about the permissibility of abortion, it does contain language authorizing (indeed, requiring) judges to make the call whether an exercise of eminent domain constitutes a taking "for public use." Where the text speaks, it must trump "majoritarian democracy"; where it doesn't speak, let the people vote. Both sides of that equation are necessary to the conservative vision of the rule of law.
At the bottom of all this is a commitment to the Constitution as enacted law. That perspective has consequences. For example, if you want to know whether an issuer of securities is legally required to include a syllabus of information when soliciting a sale, you don't engage in speculative inquiry about whether it would be conducive to "majoritarianism" to require a syllabus, or whether it would otherwise be a good thing -- you look at what the securities statutes say.
"And if you think there ought to be a law against this kind of taking ... pass one."
To which the Kelo critics will respond: "We did pass such a law, in 1791. [Or 1868; set aside incorporation.] It's called the Public Use Clause of the Takings Clause. How many more times do we have to do so before liberal judges will do their jobs and give a reasonable effect to it?"
I've put the "critics'" arguments in third person in the paragraphs above because I'm not sure yet what I think about the conflicting evidence that Justice Thomas assembled in discussing the meaning of the "public use" requirement in Kelo. Also, as noted by Prof. Hoffman and others, prior decisions played a role in Kelo: a relevant, though not always dispositive factor.
But those are the right issues here -- legal questions -- not whether "majoritarianism" as such has been traduced, but, as always, whether the Court was authorized to act as it did.
Liberal criticisms of legal conservatives as inconsistent, simply because they condemn some decisions that invalidate state action while approving others, need to engage more closely with conservatives' specific claims about judicial method.
Posted by: Plainsman | Jun 27, 2005 1:11:32 PM
The chatter about majoritarianism seems distracting. "if you think that there ought to be a law against this kind of taking . . . pass one."
I take it that the problem is that many people thought that they had.
Also, for what it is worth, Berman and Midkiff really don't necessarily command (except through dicta) the Kelo majority's result.
Posted by: Will Baude | Jun 27, 2005 1:10:10 PM
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