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Thursday, October 26, 2006

(Sort of) Confessing Error In Kelo

Public backlash against the Supreme Court's decision in the Kelo case continues to be a subject of significant press attention.  When the decision first came down, I routinely defended both the result and the reasoning against skeptical attacks from students, friends, and newspaper reporters of all political stripes.  For me the case was both unsurprising (because I thought it commanded by the relevant precedents) and correctly decided (for reasons that I will discuss below).

However, recent research for an article on the Due Process Clause has made me rethink my position.  Somewhat sheepishly, I have to admit that I am no longer sure how I would have voted in the case.

My initial feeling that the case was rightly decided turned primarily on two arguments.  First, I largely bought the argument--expressed in the relevant precedents and Kelo itself--that the determination whether a particular condemnation was necessary to achieve a legitimate public purpose was a quintessential example of the kind of policy choices about social and economic legislation that the New Deal Court had properly returned to the popular political branches.  At that time, I saw no principle reason for distinguishing in level of scrutiny between the economic policy at issue in Kelo and that at issue in most other regulatory contexts.

Second, my readings in legal history and in 19th-century caselaw had led me to the iconoclastic conclusion that the Takings Clause probably was not intended to impose a "public use" requirement in the first place.  On my reading of the relevant sources, the Takings Clause was intended to deal with the particular problem that arises when the public wants to acquire property for its own use;  in that situation, if majoritarian politics runs its normal course compensation is unlikely to be forthcoming.  In contrast, in situations where the general public will not benefit from the proposed condemnation, there is no generalizable fear of democratic overreaching.  While such takings are distasteful and almost always unjust, they were already disfavored by traditional common law property rules that were considered unlikely targets for statutory revision. 

Over the last six months, however, I have been reading tons of old cases and commentary trying to understand the historical development of what I call the "due process super-structure"--i.e., the categories into which we sort due process cases and the rules we develop for resolving cases in those categories.  In so doing, I have come to two conclusions that undercut my initial position in Kelo.  First, to a great extent, the robust modern understanding of "due process" is the result of an historical evolution through which many of the most elemental background norms of the common law (and perhaps of natural law) came to be absorbed into our notions of "due process."  Second, of all these norms, none has a stronger historical pedigree and few have more support in current public attitudes than the prohibition on "taking the property of A and giving it to B."

In reconstructing a modern due process jurisprudence that is not unduly beholden to the flawed categories of "substantive" and "procedural" due process, it is hard to identify a reason why a governmental action that, at least on first blush, resembles this paradigmatic transgression should not face serious due process scrutiny.  Serious scrutiny of purported "A to B" transfers is consistent with historical understandings of the limits of governmental powers, consistent with contemporary notions of baseline fairness and regulatory legitimacy, and manageable discretely without triggering broad judicial oversight of general economic and social policy.

Having said all that, I'm not sure that the exercises of eminent domain at issue in Kelo violate the Due Process Clause.  The "A to B" paradigm does not appear--as either a historical or a logical matter--to require governmental bodies to manage the properties acquired via eminent domain themselves or to impose any particular rules regarding public access on the private entities who manage those properties in the public interest.  As I see the matter now, what Kelo should have come down to is an honest and relatively open-ended judicial inquiry into whether--under the totality of the circumstances and without resort to fictions or presumptions--the actions of the New London government constituted a genuine, substantively-justifiable and civicly-motivated regulatory scheme.  If such a finding were not forthcoming, the court should have treated the condemnations as a naked taking from A to give to B and struck it down under the Due Process Clause.

Posted by amsiegel on October 26, 2006 at 03:38 PM in Constitutional thoughts | Permalink

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Comments

Andrew,

I'm not sure what you've unearthed in your months of research, but one thing that caught my attention in your post was your assertion that, "of all these norms [against condemnation], none has a stronger historical pedigree and few have more support in current public attitudes than the prohibition on "taking the property of A and giving it to B." First, I think only the latter is even possibly true and that that is only true because of how manipulable and, oddly, newsworthy public opinion polling has become today. There is, notwithstanding the dictum in Calder v. Bull and elsewhere, a long tradition in this country of condemning property to give it to "B." Hell, the condemnation power was often given wholesale to railroads to do just this. And where the "condemnation" was "constructive" because a Mill Act allowed a dam operator to flood out his neighbors, there was even less attention paid to the "public use" language or public utility balancing. See, e.g. Sax's 1964 article; Karkkainen's piece on the incorporation "muddle" forthcoming in Minn. L. Rev. Even people like Rod Walston have conceded this in print, mostly (in my view) because of how little stability the whole public/private distinction has. See Cushman's book on the New Deal Court.

Secondly, on arguing that "what Kelo should have come down to is an honest and relatively open-ended judicial inquiry into whether--under the totality of the circumstances and without resort to fictions or presumptions--the actions of the New London government constituted a genuine, substantively-justifiable and civicly-motivated regulatory scheme. If such a finding were not forthcoming, the court should have treated the condemnations as a naked taking from A to give to B and struck it down under the Due Process Clause." The only answer is this: that is what Kelo came down to, both in the majority opinion and in Justice Kennedy's concurrence. If you're now convinced that the evidentiary standard applied was--or the norms that also drive DP were--wrongly applied, I think what your research should do is devise a way to protect real property, but especially the homestead, with doctrinal formulations that don't undo virtually the whole of the regulatory state. I myself would be keenly interested in that work.

Posted by: Jamie Colburn | Oct 28, 2006 9:41:30 PM

I don't know if it can be a dividing line but it seems particularly problematic when the property seized involved someone's home. This is another sort of 4th and 5th Amendments running into each other sort of thing, perhaps. There also is a general theme that the state can have more power over "public" property.

The fact Kelo's home was at stake clearly aided emotional weight to the discussion though I'm sure some sort of "Dad's hardware store" symbol can be brought up as well to show the line isn't as clear-cut as that.

Posted by: Joe | Oct 28, 2006 6:21:39 PM

Actually, the "A to B" paradigm is not directly translatable into a rule against special legislation as New York Baker suggests. Certainly, the Lochner-Era Court and some predecessor state Supreme Courts relied on an anaogy between the two rules to reach their decisons. However, the two have distinct historical roots and, more importantly, the "A to B" rule has continued to have resonance in our understanding of elemental fairness and governmental legitimacy 70 years after the New Deal Court rejected the notion that a ban on "special legislation" was a discernable and enforceable judicial limit on legislative power. Part of my change of heart was a belated recognition that the two principles could be distinguished.

Posted by: Andrew Siegel | Oct 27, 2006 7:52:59 AM

Please read the Oct. 23 press release on my blog about Lauren Canario, a woman who has been in jail for over 33 days in order to bring attention back to the eminent domain situation in New London, Conn.

She sat on a porch, in the famous Fort Trumbull neighborhood of the Kelo decision, and refused to leave while the homes were being boarded up. They arrested her, imprisoned her, and she has been in jail since Sept. 22.

Thank you for helping me bring attention to this matter.

Michael

Posted by: Michael Fisher | Oct 26, 2006 11:30:24 PM

It seems that what you mean by "The 'A to B' paradigm" is that legislation that is enacted in order to unfairly economically favor a group in favor of another violates due process. Given that, would you extend the use of due process to cases such as Lee Optical, where the requirement that optometrists grind lenses was pretty clearly a capture of the regulatory process? Or, would you extend it to a law against bakers working 60 hours a week when the law was passed in order to favor automated bakers in competition against immigrant bakers who depended on employees working long hours?

It seems that once you treat the due process clause in this way (i.e. in the way that protects against "A to B" transfers) there are whole classes of legislation, completely separate from the eminent domain context, that will become unconstitutional. I myself have no problem with that, but I must point out that, for most legal academics, the problem with "an honest and relatively open-ended judicial inquiry" into the purpose of economic legislation is that such an "inquiry" vitiates much of the post-New Deal judicial order.

Posted by: New York Baker | Oct 26, 2006 10:36:18 PM

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