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Monday, July 11, 2005

Kelo Redux Redux

Todd Zywicki over at volokh has this:

Legislative Responses to Kelo:

Donald Lambro reports on legislative responses to Kelo in Washington and around the country:

Fueled by mounting grass-roots anger over the high court's 5-4 decision last month in the Kelo v. New London eminent-domain case, several state legislatures are expected to act on some kind of statutory ban before year's end and more are expected to take action next year.

Legislation in the House and Senate already has drawn surprisingly strong support across the political spectrum -- from House Majority Leader Tom DeLay of Texas on the right to Michigan Rep. John Conyers Jr., the ranking Democrat on the House Judiciary Committee, on the left.

According to the article, several states have already introduced bills prohibiting transfers of property to private commercial interests.

The American Legislative Exchange Council (ALEC) is also drafting a model bill for the states that would declare that "the power of eminent domain shall be available only for public use," such as the development of roads and other public facilities.

I know I am beating a dead horse here, but I still don't understand the "anger" on the part of citizens and legislators.  This is how the process is supposed to work: legislatures legislate.

To repeat the mantra, Kelo was a conservative four-fer:

  • States' rights
  • Adherence to precedent
  • Majoritarianism
  • Minimalism

I know, I know.  You think that the Constitution was clear that this kind of taking was forbidden such that you don't need legislative action.  I get it.  But:

  1. Once you adopt that kind of argument, you just invite liberals to make claims about what the Constitution "obviously" allows and prohibits. 
  2. Even if you are right, consider the fact that this is a victory for you in the long run, because it shows that majorities (and maybe even strong minorities) don't need courts.  They can achieve change through normal democratic processes.
  3. Lasting change of the sort libertarian conservatives want--in this case, increased respect for private property ownership on the part of local governments--is more likely to occur as a result of a legislative reaction to a scorned Supreme Court ruling than it is in response to a celebrated Court ruling.  In other words, the grass-roots mobilization that resulted from newspaper headlines like "City can Take Your Home" is worth more to your movement than it would have been for the Kelo decision to have come out the other way.

Anyway, that's all I am going to say about Kelo.  I think.

Posted by Hillel Levin on July 11, 2005 at 05:30 PM in Law and Politics | Permalink

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» Blog Round-Up - Monday, July 11th from SCOTUSblog
Here is Sentencing Law & Policy on the Court's decision to stay the execution of Robin McKennell Lovitt, pending review of his cert petition. The Volokh Conspiracy has this update on legislative responses to Kelo. PrawfsBlawg responds here. Mark Graber... [Read More]

Tracked on Jul 11, 2005 11:33:02 PM

» Blog Round-Up - Monday, July 11th from SCOTUSblog
Here is Sentencing Law & Policy on the Court's decision to stay the execution of Robin McKennell Lovitt, pending review of his cert petition. The Volokh Conspiracy has this update on legislative responses to Kelo. PrawfsBlawg responds here. Mark Graber... [Read More]

Tracked on Jul 12, 2005 8:48:34 AM

» Blog Round-Up - Monday, July 11th from SCOTUSblog
Here is Sentencing Law & Policy on the Court's decision to stay the execution of Robin McKennell Lovitt, pending review of his cert petition. The Volokh Conspiracy has this update on legislative responses to Kelo. PrawfsBlawg responds here. Mark Graber... [Read More]

Tracked on Jul 12, 2005 8:54:19 AM

» Blog Round-Up - Monday, July 11th from SCOTUSblog
Here is Sentencing Law & Policy on the Court's decision to stay the execution of Robin McKennell Lovitt, pending review of his cert petition. The Volokh Conspiracy has this update on legislative responses to Kelo. PrawfsBlawg responds here. Mark Graber... [Read More]

Tracked on Jul 12, 2005 2:11:15 PM

Comments

Ah, this takes me back. Kelo: it is guaranteed to get your comment board a-frothing!

Posted by: Hillel Levin | Jul 11, 2005 9:02:59 PM

And one hesitates to make the obvious point, but it's difficult to pass laws like this that are unpopular with most political elites unless you can work people up into a froth. Isn't demogoguery part of the political process too?

Posted by: Anonymous | Jul 11, 2005 8:40:41 PM

I dissented on this point here and here. In particular, I object to this statement you make:This is how the process is supposed to work: legislatures legislate.This is not how the process is supposed to work. The constitution reserves certain functions and powers from the democratic stage, but Kelo attempts to place an issue thus reserved back onto the democratic stage. Even if one were to make the "lattitude" (or "deference") argument, it fails the common-sense test which requires a ruling to retain "intelligible content" (cf. Blakely v. Washington, 124 S.Ct. 2531 (2004) at III 1, applying this principal to the 6th Amendment) to a consitutional provision, and goes so far as to attempt to actually remove one. As I argued last week (second link):What possible purpose would there be in the constitutional protection of a right, other than to specifically exclude from the legislature's discretion the ability to invade that right? If the court places back into the normal political arena the question of whether or not to invade a right, for all intents and purposes, it deletes that right from the Constitution. That is exactly what Justice Stevens did in Kelo, and for that precise reason, the case was wrongly decidedJeff made the argument in response that:If a rule against using eminent domain for economic development is a desirable rule--and if, as appears, a legislative majority supports it--the right course of action is to simply get on with legislating the rule...the court did not say the government can't do something in Kelo. So legislators are free to act as they think the constitution requires.But, as I argued then, and restate today:Where the constitution includes a right, legislators are NOT merely "free to act as they think the constitution requires" - their oath to uphold the constitution binds them to act as the constitution DOES require. What Kelo does is to grant them discretion where - absent an amendment - there can be none.Kelo was wrongly decided. There is no question, no hesitation in saying as much. It attempts the excise of a constitutional provision (which - I feel daft even writing this, but in today's climate, you really have to wonder - the court, of course, cannot do), without even paying lip service to leaving it coherent or "intelligible content". Even if you were right (which I say you aren't) about Kelo actually being a boon to conservatives, it was still wrongly decided.

Posted by: Simon | Jul 11, 2005 7:30:16 PM

I know I'm beating a dead horse too, but I don't see why us liberals aren't all consumed by utter fury at Kelo. I mean, it permitted the government to force individuals to sell their homes and transfer them to corporations on the theory that the corporate use is supposedly better for the public than the human use. Why aren't we up in arms about this?

Posted by: Paul Gowder | Jul 11, 2005 6:09:28 PM

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