The End of Constitutional Limitations?
The notion of limited government took another enormous body blow today with the Supreme Court’s astonishingly wrongheaded decision in the Kelo case (see the text of the decision here). It was 5-4, with the 4 most conservative justices – Rehnquist, Scalia, O’Connor and Thomas – dissenting. There is grand irony here. Despite the common perception that liberals are for the “little guy” and conservatives are for “big business”, the liberal judges on the court just upheld the government’s power to take away someone’s property and give it to private development companies solely because the private developers will use it in ways that will boost the tax base, while the conservatives on the court offered a blistering and absolutely accurate dissent. What this means, essentially, is that you don’t really own your home and property. You only own it until someone else can convince the government that they can put it to better use, at which point they can take it from you and give it to someone else. It’s difficult to imagine a more flagrant violation of our founding principles than that.
Is it overstating it to say that the entire experiment in limited government that we began 216 years ago with the passage of the Constitution may well have come to an end in the last few weeks with the double whammy of the Raich and Kelo decisions? If “interstate commerce” can be abstracted to give the government authority over activities that are neither interstate nor commerce, and if “public use” can be abstracted to cover private use, I dare say we have passed through Alice’s mirror into a Wonderland where words can mean whatever the Queen wants them to mean at any given time.
Other reactions to the decision are coming in. Radley Balko says:
The five most liberal justices on the court made up the majority, once again proving that today’s left is utterly devoid of any principle other than ensuring massive, all-encompassing, ever-growing government power. In this case, they’ll gladly side with huge corporations who collude with state and local government to screw powerless people out of the homes and property they’ve owned for generations. The corporations get cheap land below market value, and the local city council members get more tax money to throw around to win votes.
Julian Sanchez writes:
As Raich taught us that growing pot in your backyard for personal consumption is “interstate commerce,” Kelo informs us that taking people’s homes to hand over to private developers building an office complex is a “public use.”You do wonder: Now that the “liberal” justices on the court have sided with the drug warriors against cancer patients, and with a plan to rob people of their homes for the benefit of wealthy developers, will some court-watchers on the left begin to question the wisdom of having let economic freedom become the red-headed stepchild of modern jurisprudence?
And here is Justice O’Connor’s dissent, summing up perfectly what has happened here:
Under the banner of economic development, all private property is now vulnerable to being taken and transferred to another private owner, so long as it might be upgraded-i.e., given to an owner who will use it in a way that the legislature deems more beneficial to the public-in the process. To reason, as the Court does, that the incidental public benefits resulting from the subsequent ordinary use of private property render economic development takings “for public use” is to wash out any distinction between private and public use of property-and thereby effectively to delete the words “for public use” from the Takings Clause of the Fifth Amendment.
More as they come in.
Update: Michael Meckler’s reaction. Dale Frank’s reaction. Most importantly, Timothy Sandefur’s reaction. Sandefur spends his professional life fighting these kinds of eminent domain cases and was instrumental in getting the Michigan Supreme Court to overturn the infamous Poletown decision.
12 Responses to “The End of Constitutional Limitations?”
It’s time for a constitutional amendment expressly prohibiting eminent domain, or, barring that, setting “fair value” at, say, 20000 times assessed value.
simply being the most liberal within the supreme court does not actually make them “liberal” or anything even resembling “liberal”. three of the justices in the majority were appointed by republicans, after all. that’s like fred mann calling chuck hagel a liberal because hagel will occasionally publicly criticize the bush administration.
stAllio!,
Chuck Hagel has a political position, within a political party, as such. Additionally, Chuck Hagel is given frequent and public opportunities to vote either for or against laws that support a particular political ideology. The judiciary is a non-partisan, and non-political, branch of government. Each Justice is obviously going to be a self-identified Democrat, or Republican, or whatever. But it’s not like they have a “Minority caucus” and a “Majority Conference” in the Supreme Court.
The only useful method of evaluating a judge’s political ideology is to examine their opinions for clues. (Otherwise, if you base it solely on party affiliation, you’d find out that Souter is, I’m guessing, a registered Republican–which is about as practical as knowing that Marilyn Manson is a registered Republican.) Moreover, there have been plenty of pages written about the fact that Justices frequently change ideology once they are “under the robe.” (See Eisenhower’s later thoughts on Republican appointee Earl Warren.) So, really, it’s nothing at all like Chuck Hagel criticizing Bush.
There aren’t many times we agree, Ed.
But this is one of them.
it’s not the most perfect analogy i could’ve used; i used it because it’s timely, and has an indiana connection:
http://www.nytimes.com/2005/06/21/politics/21broadcast.html
a closer analogy would be calling andrew sullivan liberal because he’s to the left of glenn reynolds or hindraker. but i stand by the original analogy, imperfect though it might be, because they are still all cases of judging someone’s ideology based not on their own position, but on their position in comparison to someone else. of course ginsberg and kennedy are to the left of scalia and thomas. seriously: who isn’t to the left of scalia? but nobody on the court is nearly as far to the left as scalia or thomas are to the right, for example. these “liberal” judges are at best “left of center”, but that doesn’t make them liberal per se.
so to suggest, as balko does in the passage you quote, that this proves that “the left” is “devoid of any principle” is highly disingenuous, as “the left” didn’t come up with this: five people of questionable liberalism did.
stAllio!,
Justice Ginsburg was on the Board of Directors for the ACLU, and a primary figure in the Women’s Rights Project, before being appointed to the SCOTUS. Do you really think there is any doubt re her liberalism? I’d agree that she is, on a global scale, probably mildly left of center. But on an American scale she is just as liberal as Scalia is conservative. If it has feathers and quacks like a duck, it’s probably a duck.
ps. please excuse my pronoun confusion and replace “you quote” with “ed quotes” in my previous comment.
All this decision does is refuse to find *constitutional* protection. State governments are still free, through democratic means, to limit eminent domain if they see fit.
The liberals on the court here are showing near-absolute faith in government officials with regard to private property.
But the conservatives on the court have consistently shown that same near-absolute faith for the last 20 years toward law enforcement officials with regard to arrest, interrogation, search and seizure toward those accused of crimes.
Everyone crying about how NOW the court is giving the government ultimate power should have spoken up when the court was erasing the rest of the bill of rights bit by bit.
No doubt the commerce clause came into play again but I’d like to direct your attention to Baldwin v. State of Missouri, 281 U.S. 586, 595 circa 1930 Holmes in dissent.
“State governments are still free, through democratic means, to limit eminent domain if they see fit.”
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In this case, the state legislature specifically passed a law allowing for the use of eminent domain for economic development purposes.
When you become familiar with “eco devo” at the local level you will know a lot more than these judges. Can we all now conclude that the New Deal was all about Theft and, at basis, that is what liberalism is all about and nothing else?
Eminent Domain is not a bad thing, when used as the Founders intended. Sometimes there is a legitimate public need for legitimate public works that needs to be accommodated for the public good. But that is the key — it is a public good, not a private good. Building a road fits with this. So does building a school (I’ll not enter the debate regarding the appropriateness of governemnt involvement in education). I’ll even go so far as accepting the condemnation of whole swathes of territory that are truly blighted by crime, dilapidated buildings, and unsafe/uninhabitable structures, in that the “public good” of restoring those areas to habitability can be found, and falls within the general “police powers” (a term that does not imply a law enforcement function) that the state has.
But to take property from a private party to pass it on to another private party when such conditions are not met is unthinkable.