Kelo again

30 Jun

I really don’t want this to become a Kelo blawg, but let me clarify something:

1. The Kelo decision merely follows 100 years’ worth of takings jurisprudence. Back in 1896 the SCOTUS expanded its definition of “public use”, and in the decades since has further expanded and/or clarified what constitutes a public use. You see, public use isn’t defined in the Constitution itself, so it’s up to the SCOTUS to fill in the blanks.

2. Kelo didn’t change much. The majority examined 100 years’ worth of takings jurisprudence and believed that its decision viz. Kelo was in line with that line of cases. The majority opinion isn’t some liberal big government imposition of arbitrary judicial power. And reasonable people can disagree with them. But the major theme I see in Kelo’s majority & concurrence is the idea of deferring to the local government’s decision as to what constitutes a “public use.” The court seems loath to override local elected officials. State’s rights, that.

3. O’Connor’s dissent is, in my mind, substantively much more reasonable and thoughtful than Thomas’ knee-jerk reaction. O’Connor would not get rid of the idea that the state can take property for a private use to, say, eliminate a blighted area. She objects to the idea of a taking for a directly private purpose with an ancillary public benefit. She might very well be right. But O’Connor wouldn’t and didn’t just ignore that same 100 years’ of takings jurisprudence; instead, she examined what the majority examined and came to a different conclusion. And she might very well be right.

4. Thomas’ dissent is just a knee-jerk strict constructionist diatribe that Scalia might as well have written. Thomas was doing nothing more than asking that the court completely obliterate that 100 years’ worth of takings jurisprudence. Just read his conclusory paragraph:

The Court [majority] relies almost exclusively on this Court’s prior cases to derive today’s far-reaching, and dangerous, result. See ante, at 8—12. But the principles this Court should employ to dispose of this case are found in the Public Use Clause itself, not in Justice Peckham’s high opinion of reclamation laws, see supra, at 11. When faced with a clash of constitutional principle and a line of unreasoned cases wholly divorced from the text, history, and structure of our founding document, we should not hesitate to resolve the tension in favor of the Constitution’s original meaning. For the reasons I have given, and for the reasons given in Justice O’Connor’s dissent, the conflict of principle raised by this boundless use of the eminent domain power should be resolved in petitioners’ favor. I would reverse the judgment of the Connecticut Supreme Court.

But ultimately, if you disagree with Kelo, the remedy is through legislation. Not through some farcical and facetious retaliatory taking of the home of one of the 5 judges who makes up the majority of the court. Again: Why is Souter being singled out, and not Stevens, the author of the majority opinion?

And if local governments get too out-of-line in taking unfair advantage of the Kelo decision, then the issue will be re-examined. But one thing that’s clear from Kelo is that the local government in New London was taking the property as part of an overall economic development plan. The court said that it was the comprehensive plan for the public good that partly convinced them. A single taking of one’s property and transferring it to another, the court said, would not pass muster.

So: if you disagree with Kelo, I’m not the guy you want to be arguing with. Because I really really don’t care about it. I read the decision and the concurrence and both dissents. I understand how and why they decided what they did, and absent a new member of the court or new federal lawmaking to restrict the definition of “public use”, there’s nothing I can do about it. I don’t care primarily because it doesn’t affect the work that I do, and I don’t care because I don’t think that there will really be some slippery slope of governmental handovers of private property to other private entities. It’s a politically poisonous thing to do, and I don’t think it’ll be abused.

I don’t get excited about takings clause cases.

But you’ll notice from my earlier post (which didn’t have much to say about the merits of Kelo), I strongly disagree with some nut’s singling out of Souter for special negative attention.

I do get excited by obnoxious people threatening public officials – who have done nothing wrong – with obnoxious things.

Especially since the proposed obnoxious thing doesn’t even make the point, since even Stevens & Souter would strike down a taking such as that proposed by D. Logan Darrow Clements Thurston Howell III.

To sum up:

Kelo: I don’t really care.
Clements: Is an asshole who should leave Justice Souter alone.

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