August 24, 2005

Stevens admits what happened in Kelo is unwise.

Justice Stevens does the typical judicial thing of saying that he doesn't like the outcomes of the cases he decided. Re Kelo:
In ... the eminent domain case that became the term's most controversial decision, he said that his majority opinion that upheld the government's "taking" of private homes for a commercial development in New London, Conn., brought about a result "entirely divorced from my judgment concerning the wisdom of the program" that was under constitutional attack.

His own view, Justice Stevens told the Clark County Bar Association, was that "the free play of market forces is more likely to produce acceptable results in the long run than the best-intentioned plans of public officials." But he said that the planned development fit the definition of "public use" that, in his view, the Constitution permitted for the exercise of eminent domain.
Of course, you understand, that a judge who talks like this — Scalia does it too — is really bragging about how principled he is.

IN THE COMMENTS: A reader chides Linda Greenhouse for writing, in the linked article, "Justice Stevens is the only member of the court to have addressed the issue in a speech" — when in fact, as I noted in the original post, Justice Scalia makes this point in his standard speech. In fact, it's an awfully obvious, clich├ęd observation for a judge to make. And, as I noted in the original post, it's essentially a brag. It's also a handy defense to critics. What a terrible decision! the critics exclaim. The judge's eternal answer is: I was forced to do what the law requires.

36 comments:

Henry said...

Justice Holmes, by contrast, said that he took "pleasure to sustain the Constitutionality of laws that I believe to be as bad as possible."

ziemer said...

had he been honest, rather than wanting to brag, he would have admitted that he simply did not understand the public opinion on these issues, and that he has been on the court for so long that he didn't even realize that those in the institute for justice and the federalist society crowd are far closer to the mainstream (not to mention the constitution) than new deal relics like hiself.

Pastor_Jeff said...

Any mention of the people now being billed outrageous amounts of back rent by New London? You see, they were living in what weren't really their homes after all, so the city claims it's owed 5 years' lost rent on its seaside property.

Wave Maker said...

zeimer -- can you please articulate what you believe "public opinion" has to do with the Supreme Court's job in examining whether or not a particular law is Constitutional?

And perhaps someone with deeper knowledge of the history of condemnation can explain to me the distinction between what the Supreme COurt sanctioned in Kelo is any different (or worse) than what the City of Boston did to its West End in 1958, when dozens of blocks were leveled to make space for a multi-high rise apartment complex?

downtownlad said...

I thought conservatives used to say that if the voters don't like the laws, they should elect new politicians who will change it.

That's what they've been telling gay people when it comes to sodomy laws.

That's what they've been telling abortion rights advocates.

Why are conservatives coming to the courts to overturn a law that was enacted by local politicians? Seems pretty "activist" to me.

ziemer said...

wave maker:

i'm on your side.

public opinion has nothing to do with how the court should decide cases.

i'm only saying that it lies behind stevens' decision to rationalize the kelo decision and the raich decision in public speeches. nothing more.

and as for the boston (and numerous other cases back then), the difference is that the condemning authority labeled the property "blighted."

in kelo, new london acknowledged that the properties were not blighted.

the o'connor dissent considers the distinction relevant.

the thomas dissent says it is irrelevant, and that the urban renewal of the 50s and 60s were nothing but "negro removal."

Simon said...

Downtownlad:I thought conservatives used to say that if the voters don't like the laws, they should elect new politicians who will change it...Why are conservatives coming to the courts to overturn a law that was enacted by local politicians? Seems pretty "activist" to me.

It isn't activism to strike down a law which actually is unconstitutional. In Kelo, New London's actions violated a constitutionally-defined boundary on the actions of government - and worse yet, not only does was decision in Kelo wrong, it meant that "voters [who] don't like the law" CANNOT merely "elect new politicians who will change it". That's one of the worst aspects of this illegitimate jurisprudence which seeks to remedy all ills via the constitution: "Every time the Supreme Court defines another right in the Constitution it reduces the scope of democratic debate."

Needless to say, I think Justice Stevens is very much confused. If he thinks the result in Kelo is a bad result, then that decision is doubly damned - not only wrongly decided (as Justice Thomas artfully explained it was) - but unloved by everyone up to and including its author. I am optimistic enough to believe that, one day, Kelo v. New London will be assigned its rightful place in the history of the Court’s jurisprudence, beside the Slaughterhouse Cases and Maryland v. Craig.

ziemer said...

downtownlad:

the argument is as follows:

the difference is that the public use requirement is explicit in the fifth amendment. there should be no need to pass a statute to ensure it.

the rights to commit sodomy and have an abortion are not. therefore, statutes criminalizing those things should be repealed in the legislature, rather than overturned by the court.

Ace said...

downtownlad,

sodomy laws - Not in the Constitution

-abortion rights - Not in the Constitution

-Eminent Domain is.

Can you understand that distinction?

HaloJonesFan said...

downtownlad has a point that people haven't addressed. The SCOTUS has nothing to do with the application of a law; it can only speak on matters of constitutionality. Eminent Domain is constitutional, and the SCOTUS recognized that. The End.

If we don't like the way eminent domain is being applied in this instance, then we need to go to the legislature and cause them to change it.

Simon said...

HaloJonesFan:
downtownlad has a point that people haven't addressed. The SCOTUS has nothing to do with the application of a law; it can only speak on matters of constitutionality. Eminent Domain is constitutional, and the SCOTUS recognized that. The End.

That would be true if the constitution said "local governments may take private land with due compensation". Strangely enough, though, my constitution has another sub-clause between those two - something about the purpose for which they may take land? Perhaps your copy has it too.

Saying that merely recognizing the power of emminent domain is in the constitution is enough is like seeing no problem with the Supreme Court declaring that you have a right to be free from unreasonable searches, but allowing state legislatures to define "reasonable" so broadly as to be meaningless. Constituional construction may be narrow or broad, but it must always leave a clause with intelligible content. Kelo did not so spare the public use clause, and is therefore invalid. Hopefully, its legacy will be nipped in the bud as soon after Stevens' retirement and it looks that Stenberg will be overruled subsequent to O'Connor's.

downtownlad said...

But I thought the Bill of Rights only applies to the Federal Government, and not to the States. At least that's what the right-wing always said.

And last time I checked, the 14th amendment did mention "liberty". It also mentions a 9th amendment. Abortion and Sodomy fall under those terms.

I didn't like the Kelo decision either. But at least I don't think I'm being inconsistent in my judicial philosophy. I think our Constitution puts great limits on government power, especially when it comes to interfering with our individual rights (the right to travel, the right to have sex with consenting adults, the right to have our mail not opened by the government, etc.) and the protection of property.

Sorry - but it's those who are screaming "judicial activism" that are trying to squre the circle.

Paul said...

I voted for it, being a "strict constructionist" that I am, but I still want you to love me cause it wasn't right at all.

ziemer said...

downtownlad:

i agree the constitution puts great limits on government power.

but i'm curious how you figure that it does so ESPECIALLY when concerning unenumerated rights versus explicit ones.

downtownlad said...

but i'm curious how you figure that it does so ESPECIALLY when concerning unenumerated rights versus explicit ones.

Sure - The government better have a damn good reason before creating laws that restrict our rights. In other words, people should be able pursue happiness, as they see fit, as long as it does not interfere with others. The onus should be on the government to prove why people don't need these rights, rather than putting the onus on the individual.

Laws against drug use - It's ok to outlaw this. Because drug addicts can cause great harm to society at large, not just themselves.

Laws against self-medication, i.e birth control, taking experimental medicine, etc. I think the government has no right to do this.

Laws against abortion - Debatable. Some could argue, the government certainly has an interest in protecting the life of the unborn.

Laws against private sexual conduct between consenting adults - No way.

Laws that restrict travel - No way

Laws that allow the government to open your private mail - No way.

Laws that prevent consenting adults from choosing who you can marry - No way.

Simon said...

Downtown lad - the 14th amendment includes a guarantee of legal procedure (hence, due PROCESS). It does not guarantee Brandeis' vision of all liberties that might be "fundamental and implicit in the concept of an ordered liberty".

The bill of rights applied only to the Federal government prior to the passage of the 14th amendment. See Barron v. Baltimore. However, the 14th amendment incorporated the first eight amendments. While it is true that I reject substantive due process as a foundation on which to rest incorporation (for it cannot possibly bear such a weighty construction) - and while it is true that many conservative legal scholars have rejected incorporation outright, I would sustain incorporation in terms of the priveleges or immmunities clause.

Bottom line is, liberals and conservatives both want judicial activism in the service of their preferred causes. Originalists reject it outright, and I feel confident in saying that Jack Balkin is wrong, and that originalists can have their cake and eat it where criticism of Kelo is concerned.

downtownlad said...

Why do courts get to decide what is "public use".

If state legislators want to define "public use" to mean "that which will result in higher tax revenues", shouldn't it be up for those local politicians to do so, rather than some unelected judges who are not responsible to any constituency?

Again, I don't agree with Kelo, but I don't think Kelo was a violation of original intent.

downtownlad said...

I will clarify that I think Kelo was a violation of the spirit of the Constitution.

I think O'Connor had it right in her dissent.

Ace said...

The SCOTUS has nothing to do with the application of a law;

Huh? Have you read many SC opinions? Are you familair with the term "disparate impact"?

But I thought the Bill of Rights only applies to the Federal Government, and not to the States At least that's what the right-wing always said.


Huh? Who said this?
So the State of Ohio can regulate the content of the Cincinnati Inquirer?
You have lost me man...

ziemer said...

downtownlad:

don't get so excited.

personally, i'm a big fan of substantive due process; i even have the citation to lochner, "198 U.S. 45 (1905)", tattooed on my right bicep.

i've sort of lost my standing to object to gay marriage. don't you think?

and to object to griswold or roe would just be hypocritical on my part.

at the same time, i acknowledge that rights explicit in the bill of rights have a higher priority than inherent rights.

as for whether the bill of rights applies to the states, its a subject of debate on the right only in the academic sense. mapp may have been wrongly decided in some people's view, as a matter of constitutional principle, but no one seriously wants it reversed.

Simon said...

DTL: See comments here. By defining "public use" so broadly, the court defines it out of existence. If the takings clause can be read to mean that, as long as the taking can, by some means, be connected to an eventual-but-abstracted public use (in this case, the increased taxes the city believes will stem from the taking will have a public use, even if the taking itself does not), ANY use can. This essentially deletes the public use clause as a limitation on the use of emminent domain. That might be a very good idea, for all I know - but it is not within the bailiwick of the Supreme Court. If this approach - the stretching of the text to and beyond breaking point to produce the desired result - is considered valid, then Justice Thomas was right: something has gone seriously awry with the Supreme Court's interpretation of the United States Constitution. Consider the commerce clause. In the modern world, what activity is there that does not, in some eventual-but-abstracted manner, impact on interstate commerce and one's ability to participate therein? The Kelo "eventual-but-abstract relationship" test would turn the commerce clause into a blank cheque thorugh which Congress could excercise the plenary powers which it was so deliberately and clearly denied by the Constitution. When unanchored from the text, we are a ship at sea, adrift, with no rudder, and only the hot air emanating from the Justices' mouths for propulsion.

Incidentally, I'm not so much concerned with original intent, and I'm not aware that any serious originalist has been concerned with original intent as anything other than indicia of original meaning (or understanding, in some forms) for some twenty years. You'll probably notice that Scalia spends most of A Matter of Interpretation dismissing the value of legislative intent for statutory interpretation - why would it be any different for the constitution? It may well be the case that the framers of the 14th amendment had an intent that runs entirely contrary to what the 14th amendment actually says; indeed, it could be argued that there were no fewer original intents for the 14th amendment than there were Senators and Representatives at that time. None-the-less, we are bound by the text of amendment they passed and that was ratified, not any subjective intent individuals may have expressed at the time.

downtownlad said...

The takings clause is pretty clear. If you take property for public use, then you have to compensate them. I do think it's a stretch to say that the emphasis is on "public use", as you imply. The real emphasis is on "just compensation".

Lawmakers can define "public use" as they see fit, according to the courts. But the main point is that if they confsicate private property, they damn well better compensate the owner.

I would have preferred that Kelo be ruled the otherway, but it was not a clear cut case. And I don't worry about the consequences that much.

For example, suppose New London decided to confiscate the land for themselves, i.e. they would own and operate the property. That is clearly legal.

But would that alternative be better? I'd rather have a private company run the hotel, etc. than the government.

The Kelo homeowners got compensated. I'm not crying for them. My grandmother had her home taken away too, when they built a highway. It's not that big a deal.

downtownlad said...

Ziemer - I just find it humerous when the right is running to the courts asking them to protect their rights, when they so easily dismiss the rights of others.

I mean, really, are you more scared of a government that gives you a fair market value for your home or a government that invades the privacy of your bedroom and imprisons you for using a condom with your wife?

I know my answer.

ziemer said...

don't have a wife, fortunately.

but you seem to believe that it is the job of the supreme court to recognize (or create, depending on perspective) rights inherent in the constitution, while defering to the legislature on what explicit rights, like the public use requirement, mean.

if lawmakers want to buy land and give it to a private developer, because they have determined they can generate higher property taxes, that is their role. and if the owners will sell willingly, all the power to them.

but it si the court's job to define "public use," just like "probable cause."

and private development is not "public use," like a highway is.

and changing the inquiry to whether higher taxes is a "public purpose" is intellectually dishonest.

downtownlad said...

Governments certainly have a much more pressing interest in raising tax revenue than they do in regulating what kind of sex I have.

HaloJonesFan said...

>you seem to believe that it is
>the job of the supreme court to
>recognize...rights inherent in
>the constitution, while defering
>to the legislature on what
>explicit rights, like the public
>use requirement, mean.

He hasn't said any such thing. He has said that the SCOTUS can only rule on whether an act was constitutional. In situations where the wording of the original documents is unclear (or no longer appropriate to the time) the SCOTUS can interpret, but this is most definitely not one of those times.

>private development is not "public
> use," like a highway is.

But that's the legislature's task to define, not the SCOTUS. Indeed, if you expect the SCOTUS to rule on specific cases of eminent domain, then you are inviting every single citizen who disagrees with ED to take their case all the way to the Supreme Court!

John Thacker said...

From the article: "While Justice Stevens is the only member of the court to have addressed the issue in a speech,..."

Wow. Either Linda Greenhouse is incredibly poorly informed about the Supreme Court justices for being the reporter who covers the Court for the New York Times, or she's horribly biased. As Professor Althouse notes, it's a standard part of Justice Scalia's speech. Surely she should know that. I also note that she chose to use Justice O'Connor and Justice Kennedy as examples of justices who have followed such practice. Seems to me that Justice Thomas's opinion in Lawrence v. Texas would have made an excellent example.

ziemer said...

halojones,

i'm not saying that at all. had the supreme court held that private development is not a public use, lower courts would be bound to follow that precedent, and no further cases would need be brought to the supreme court.

and if i misconstrued what downtownlad said, what you are saying he said is an even more off-base.

the supreme court's role is nto limited to deciding whether an act was contitutional or not. until marbury v. madison, it did not even have that function at all.

interpreting the meaning of "public use" is a core function of the court.

downtownlad said...

And they've said that anything that raises tax revenue is "public use".

I don't think that's a stretch, although I do wish they had drawn the line there and said it was unconstitutional. But they deferred to the states on this one - not a big deal in my book.

Simon said...

The takings clause is pretty clear. If you take property for public use, then you have to compensate them.

Right, but it also says that land can only be taken for public use. Or do you contend that people are only due for compensation when their land is taken for public use, but are not due compensation if taken for private use? That's the other alternative reading of the text, but that's an absurd result that I don't think anyone argues for. So, once we accept that the clause involves compensation for public use, we must also accept that it also limits government to taking land only for public use. Whether the emphasis is to be on one clause or the other does not erase the import of either.

Simon said...

And they've said that anything that raises tax revenue is "public use".

But in doing so, they are attempting to draw so wide a definition of public use as to exclude no possible usage from the definition, an action which essentially removes a constitutional protection, aided and abetted with the full complicity of the Supreme Court of the United States - which was Justice Thomas' point.

Think about it: what's the point of a constitutional right? Why is it that liberals want abortion to be a constitutional right in the first place? It's because they want to circumscribe the discretion of state legislatures. That's what a constitutional right is - a limitation on the scope of government (I am currently writing this thesis into essay form, due late september).

And if you think that's being unduly cynical about the arrogance of government - look what happened next. The framers designed the constitution to protect freedom from govenment. They did not trust government, and so they hogtied it with limitations on its power, such as the public use clause. And the instant the City of New London was illegitimately released from those contraints by the Supreme Court, it lived down to the worst fears of the Framers.

Freeman Hunt said...

Downtownlad,

I am conservative.
I am against the Kelo decision.
I am for gay rights including marriage rights.

You're trying to paint conservatives with too broad a brush.

I would, however, agree with others who've said that eminent domain is explicitly defined as being for "public use." The project in Kelo is clearly not a "public use" project. Gay rights are not explicitly defined, so I think you're drawing a bad analogy.

Freeman Hunt said...

Oh, and as for the back rent thing others have linked: If I received a notice like that, I would consider it time to exercise my 2nd amendment rights. That is ridiculous.

Ace said...

I find it funny that someone on the left continues to speak for the right:

Ziemer - I just find it humerous when the right is running to the courts asking them to protect their rights, when they so easily dismiss the rights of others.

I mean, really, are you more scared of a government that gives you a fair market value for your home or a government that invades the privacy of your bedroom and imprisons you for using a condom with your wife?

I know my answer.



Please tell me when and where someone was "imrisoned" for using a condom with their wife?

Simon said...

I mean, really, are you more scared of a government that gives you a fair market value for your home...
Where on earth did you get the impression that government gives you market value for your home? The fifth amendment says "just compensation", not "fair compensation", and still less "market value". Did you not read the news story about what happened to the residents after Kelo was handed down?

Simon said...

Please tell me when and where someone was "imrisoned" for using a condom with their wife?

Griswold v. Connecticut, 381 U.S. 479 (1965):

"The statutes whose constitutionality is involved in this appeal are 53-32 and 54-196 of the General Statutes of Connecticut (1958 rev.).

The former provides:

"Any person who uses any drug, medicinal article or instrument for the purpose of preventing conception shall be fined not less than fifty dollars or imprisoned not less than sixty days nor more than one year or be both fined and imprisoned."

Section 54-196 provides:

"Any person who assists, abets, counsels, causes, hires or commands another to commit any offense may be prosecuted and punished as if he were the principal offender."


The appelants in Griswold were not imprisoned (they were fined instead), but the law provided the option of imprisonmed.