Chief Justice Thomas

Jacob Sullum | June 28, 2005

Inspired by Clarence Thomas' dissent in Kelo v. New London, Jude Wanniski nominates him to replace William Rehnquist as chief justice.

Comments

Ron Hardin|6.28.05 @ 5:16AM|#

I like Thomas but if Wanniski wants it, it's probably wrong.

|6.28.05 @ 8:27AM|#

Can we make this a petition?

Adam|6.28.05 @ 8:41AM|#

His dissent in Raich was scathing, reasonable and undisputably "originalist."

As I explained at length in United States v. Lopez, 514 U.S. 549 (1995), the Commerce Clause empowers Congress to regulate the buying and selling of goods and services trafficked across state lines. Id., at 586�589 (concurring opinion). The Clause�s text, structure, and history all indicate that, at the time of the founding, the term � �commerce� consisted of selling, buying, and bartering, as well as transporting for these purposes.� Id., at 585 (Thomas, J., concurring). Commerce, or trade, stood in contrast to productive activities like manufacturing and agriculture. Id., at 586�587 (Thomas, J., concurring). Throughout founding-era dictionaries, Madison�s notes from the Constitutional Convention, The Federalist Papers, and the ratification debates, the term �commerce� is consistently used to mean trade or exchange�not all economic or gainful activity that has some attenuated connection to trade or exchange. Ibid. (Thomas, J., concurring); Barnett, The Original Meaning of the Commerce Clause, 68 U. Chi. L. Rev. 101, 112�125 (2001). The term �commerce� commonly meant trade or exchange (and shipping for these purposes) not simply to those involved in the drafting and ratification processes, but also to the general public. Barnett, New Evidence of the Original Meaning of the Commerce Clause, 55 Ark. L. Rev. 847, 857�862 (2003).

Jason Sonenshein|6.28.05 @ 8:43AM|#

Clarence Thomas voted with the majority in Hiibel v. Sixth Judicial Dist. Court of Nevada, ruling that states can force citizens to identify themselves to police. In his dissent in Hamdi v. Rumsfeld, Justice Thomas was the only justice who fully supported the Bush administration's "enemy combatant" policy. Additionally, in Lawrence v. Texas, Justice Thomas voted to uphold Texas' anti-sodomy law and in Planned Parenthood v. Casey voted to allow states to criminalize abortion. Justice Thomas may be the biggest enemy of personal freedom on the Supreme Court.

MP|6.28.05 @ 9:12AM|#

Ah Jason, which would you rather have, someone who uses their preferences to find rights in either Substantive Due Process or the Ninth Amendment, or someone who enforces the more unambigous text of the Constitution? Personally, I'd rather have both (although I think Substantive Due Process is BS), but judges should at a minimum support the clearer elements of the text.

|6.28.05 @ 9:26AM|#

I posted this at the end of an earlier thread, and it sort of got lost. I'm interested to hear what Thomas's fans have to say about it:

"Has anyone else noticed the "Living Constitution"-reliant reasoning in Clarence Thomas's dissent?

"As noted above, the earliest Mill Acts were applied to entities with duties to remain open to the public, and their later extension is not deeply probative of whether that subsequent practice is consistent with the original meaning of the Public Use Clause. See McIntyre v. Ohio Elections Comm�n, 514 U.S. 334, 370 (1995) (Thomas, J., concurring in judgment). At the time of the founding, �[b]usiness corporations were only beginning to upset the old corporate model, in which the raison d�etre of chartered associations was their service to the public,� Horwitz, supra, at 49�50, so it was natural to those who framed the first Public Use Clauses to think of mills as inherently public entities."

In other words, at the time of the founding, it was "natural to think of" private corporations as being public, because corporations were widely construed to exist to serve the public. Thus, taking land for their benefit did not violate the "public use" clause. But as the understandings and practices that surrounded the operations of corporations changed, it ceased to be "natural to think of" them in this way, and it became "natural to think of" them as being purely private entities, and the taking of land for their benefit ceased to meet the Public Use clause.

Which is a sound, intelligent argument - as understandings and practices change, it becomes necessary to read the meaning of the Constitution in new ways, to account for the new realities. Sometimes, as with the Mill Acts example Thomas calls out, the change of understandings and practices requires exacxtly the opposite interpretation as had formerly been applied.

The term for this recognition of the unavoidalbe realites of applying the Constitution to actual cases is "Living Constitution Jurisprudence." Or, maybe, Clarence Thomas's consitution really is dead, but the date of its passing was circa 1850."

Any thoughts?

|6.28.05 @ 9:31AM|#

joe:

My thoughts are that he probably disagreed with the public use designation in the first place but preferred not to argue explicitly that public use has never been correctly applied in the history of the republic.

Another read might be that there is something of substance in the distinction between an entity that is prohibited from closing and a wholly private entity, and that such a distinction existed even back in the day.

|6.28.05 @ 9:39AM|#

What is the difference between the cheif justice and the other justices? Does his vote count double or something, or is it that he gets the nicest office? Since there's an odd number it can't be that he decides ties, but maybe he votes last jsut in case there is a tie?

|6.28.05 @ 9:45AM|#

When he votes with the majority, the Chief Justice decides who writes the opinion (and thus has some degree of influence on how the final opinion is presented).

MP|6.28.05 @ 9:54AM|#

joe leaves out the last sentance from the paragraph he quoted:

"The disagreement among state courts, and state legislatures� attempts to circumvent public use limits on their eminent domain power, cannot obscure that the Public Use Clause is most naturally read to authorize takings for public use only if the government or the public actually uses the taken property."

Also, "As noted above" referred to this:

"Those early grist mills �were regulated by law and compelled to serve the public for a stipulated toll and in regular order,� and therefore were actually used by the public. Lewis �178, at 246, and n. 3; see also Head, supra, at 18�19. They were common carriers�quasi-public entities. These were �public uses� in the fullest sense of the word, because the public could legally use and benefit from them equally."

I see no evidence of Living Constitution leanings in Thomas's dissent.

|6.28.05 @ 9:55AM|#

I'm too lazy to find the citation, but Thomas recently suggested that the Establishment Clause meant only that Congress could not prohibit states from establishing a religion. That's beyond unnerving; it's frigging terrifying.

|6.28.05 @ 9:56AM|#

Jason Ligon,

"he probably disagreed with the public use designation in the first place but preferred not to argue explicitly that public use has never been correctly applied in the history of the republic." So much for originalism, then, if he's disrespecting the origins.

As for your other read, it's pretty clear, and Thomas acknowledges it himself, that there actually was a change over time.

|6.28.05 @ 10:00AM|#

Curious-The Chief Justice assigns the task of writing opinions (often to himself). If, for example, The court found in favor of plaintiff X, and the CJ was in agreement with the finding, he would either write the majority opinion himself or assign it to another justice. I think the same is true in reverse if he's in the minority, but I'm not sure. Apart from that, his role is largely ceremonial.

|6.28.05 @ 10:01AM|#

MP,

The first second you quote is a mere assertion, and the "most natural" reading he provides is contradicted by the Mill Acts he attempts to dismiss. A little history here, the Mill Acts allowed people's land to be taken by downstream mill owners, who flooded them out when building their dams. Thomas's "most natural reading" would preclude such laws, yet there they were. The "originalist" reading he prefers was not the one being applied at the time of, and immediately after, the words were written.

And this - "These were �public uses� in the fullest sense of the word, because the public could legally use and benefit from them equally." is just ridiculous. The public had the opportunity to pay the mill owner to grind their grain. Just as the public will have the opportunity to pay the condo developer to sell them a housing unit. The public use Thomas identifies is the use of the property by a private party to carry out a private contract with another private party!

|6.28.05 @ 10:05AM|#

BTW, the Mill Acts were justified at the time of their passage and enforcement by the doctrine that the service provided by private mill owners to private farmers, for a fee to be kept by the mill owners, was important to the well being of society - that is, it served a public purpose.

The public use in that case was the broader impact that having adequate grist mills had upon the economy and society of the day.

|6.28.05 @ 10:07AM|#

For once, I agree with Joe-while Thomas may have drawn a different conclusion, it seems as though the Mill Acts were very much analagous to what's going on in Kelo.

R C Dean|6.28.05 @ 10:17AM|#

joe - I don't think Thomas is arguing so much that the meaning of the Constitution has changed, as he is arguing that the nature and function of corporations have changed. As indeed they have.

Corporations used to be created one at a time by special charter of the legislature, making them quasi-public, even quasi-governmental, bodies. That has not been the case for about a century or so now.

It is not unreasonable to argue that a specially chartered, quasi-public corporation could be a beneficiary of a "public use" taking, but an entirely private modern business corporation cannot. And, to your point, this argument does not require one to claim that the meaning of "public use" has changed, only that the underlying realities to which it applies has changed, leading to different results today than were appropriate two hundred years ago.

MP|6.28.05 @ 10:18AM|#

The grist mills were thought of in the same light as today's electric companies. They were heavily regulated and directly subservient to the will of the government (i.e. the people). The issue of ownership is the sticking point for which it is more difficult to answer. It is the same thought exercise that Prof. Volokh brought up the other day when discussing other Private/Public partnerships. I do agree that it is difficult to draw the line.

But I still think Thomas was consistent and was not entertaining "public purpose" ideas.

|6.28.05 @ 10:37AM|#

"The grist mills were thought of in the same light as today's electric companies. They were heavily regulated and directly subservient to the will of the government (i.e. the people)."

Redevelopment Authorities are even more heavily regulated and even more directly subservient to the will of the government.

"It is not unreasonable to argue that a specially chartered, quasi-public corporation could be a beneficiary of a "public use" taking, but an entirely private modern business corporation cannot." Is it less reasonable to argue that a specially chartered, fully public entity like a Redevelopment Authority could be the beneficiary of a "public use" taking?

You both keep saying "the mills were chartered to serve the public." Do you know WHY corporations were chartered to serve the public? Because their private, profit-driven activity brought about a public good. This privately-achieved public good was the justification for their charters, as well as the justification for their ability to take land while meeting the "public use" clause.

Sort of like the public good achieved by the private activity of redeveloping land for a "higher and better" use.

|6.28.05 @ 10:40AM|#

Now the really smart answer is, "But joe, those charters imposed regulations to force them to operate in ways that advanced the public good - for example, by accepting grinding jobs from anybody who asked for one, even if the job was so small as to be unprofitable."

To which I ask, "So can the city meet the standard by putting restrictions on the deeds, requiring the new landowners to do their business in a manner that meets certain public goals, such as affordable housing setasides, green building techniques, and an annual public fair?"

fyodor|6.28.05 @ 10:45AM|#

joe,

I replied directly to your previous post on the subject, but your post got "lost"? Uh, thanks for the respect.

Anyway, if what the "Living Constitution" school says is that the original intent of the Constitution can be interpreted anew based on circumstances that have clearly changed since it was written, then I'm all for it. Since circumstances always change, I don't see why this school would even need to be called "Living Constitution" if that's all it's about.

MP|6.28.05 @ 10:50AM|#

Redevelopment Authorities are usually temporary entities that are not responsible for owning and operating the properties they have redeveloped. Their existence as an extension of governmental authority does not imply that what is developed under their watch is also subject to the same governmental oversight.

Please don't paraphrase me (or Thomas) in quotes. That is misleading. Your "public good" is something that Thomas states the "public could legally use and benefit from them equally." (emphasis mine) Unless you are implying that Redistribution (via collecting higher taxes on the newly developed property) is inherently a Public Good, I don't see how the New London land grab benefits the public equally.

|6.28.05 @ 10:59AM|#

Yes you did, fyodor. Props.

MP,

The public's ability to use the mills equally amounted to the farmers having the right to bring their grain there and have it processed for a fee. The mill owners were not allowed to turn away customers.

The developers selling condos, the hotel owners renting rooms, and the storeowners selling "Granpa went to Fort Truball" tee shirts are subject to all sorts of nondiscrimination laws. In addition, they will be subject to whatever regulations the city puts on them.

I didn't see the word "equally" or any of its variants in the Takings clause, yet Thomas cites this as demonstrating why the mills were providing a public service, and thus qualified as "public uses." Isn't Thomas's citation of this arrangement an admission that the political branches can decide for themselves what public benefits provided by the private landowners make the private operation meet the "public use" standard?

|6.28.05 @ 11:05AM|#

The good guys:
Kelo v. New London: O'Connor, Rehnquist, Scalia, Thomas
Gonzalez v. Raich: O'Connor, Thomas, Rehnquist
Hiibel v. Sixth Judicial Dist. Court of Nevada: Breyer, Souter, Ginsburg
Hamdi v. Rumsfeld: O'Connor, Rehnquist, Kennedy, Souter
Lawrence v. Texas: Kennedy, Stevens, Souter, Ginsburg, Breyer, O'Connor
Planned Parenthood v. Casey: O'Connor, Kennedy, Souter

Looks like O'Conner has the best individual liberty score of the lot.

MP|6.28.05 @ 11:05AM|#

To which I ask, "So can the city meet the standard by putting restrictions on the deeds, requiring the new landowners to do their business in a manner that meets certain public goals, such as affordable housing setasides, green building techniques, and an annual public fair?"
No. Those items are secondary. The city can meet the standard only if the primary purpose of the property siezed via Eminent Domain is something that is generally considered to be a Public Use (using the Thomas defintion quoted previously). What can change over time is the general understanding of the types of entities that may fall under this umbrella, such as the electric utility grid, which obviously couldn't have been conceived of in 1788.

|6.28.05 @ 11:06AM|#

I don't know about New London, but many of these redevelopment projects end up with private entities owning the real estate for their purely private use, like condos or offices. The fact that some of the condos may be sold a prices that make them more widely available to a median or below-median wage earner does not obviate the fact that the end result is a private citizen having title to the real estate for purely private use.

The analogy with mills is entirely specious.

MP|6.28.05 @ 11:09AM|#

Isn't Thomas's citation of this arrangement an admission that the political branches can decide for themselves what public benefits provided by the private landowners make the private operation meet the "public use" standard

SCOTUS only sets the boundaries. Political branches are always faced with making those choices. In any society, there is a constant struggle between majoritarianism as exercised by the political classes and the fundamental rights of the people. I'm not sure what you are driving at, as this seems like a rather obvious point. You seem to be arguing for carte blanche legislative authority.

theOneState|6.28.05 @ 11:11AM|#

To which I ask, "So can the city meet the standard by putting restrictions on the deeds, requiring the new landowners to do their business in a manner that meets certain public goals, such as affordable housing setasides, green building techniques, and an annual public fair?"

No.

How would that limit the gov't from taking whatever land it wants for whatever purpose it wants? Throw in a little "green education" and it's not theft?

Also, Joe, though the Constitution oughtn't change to apply to new circumstances, it can still apply to new circumstances, no? Anyway that's what makes some of us comfortable.

|6.28.05 @ 11:16AM|#

MP, Will,

What makes grinding grain (or rather, the creation of water pressue sufficient to drive a grist mill) a public use, while the construction of housing is not?

"SCOTUS only sets the boundaries." Yes, and I'm wondering what boundary allows the political branches to declare the operation of a for-profit grist mill by a private party to be within the boundary, and the construction of housing units to be outside of it. Thomas identifies what make the mills a public use - there were regulations put on them requiring them to operate in a manner that advanced the public good, as defined by the political branches. When redevelopment plans are carried out using ED, the political branches decide what land uses and construction techniques will most advance the public good, and condition to the sale and construction on adherence to those conditions.

|6.28.05 @ 11:18AM|#

Joe,the mills were available for use by the public on an ongoing basis. Joe Median-wage-earner's condo, and The Acme Widget Company's offices, are not. A purely retail developement, completely open to public use, would be a closer call, but Ye Olde Ice Cream & T-shirt Shoppe does not provide a vital public service in the manner that a mill or electric utility does.

|6.28.05 @ 11:19AM|#

theOneState, the Constitution didn't change - as with the Mill Acts, it has always allowed takings that put the taken land, ultimately, in the hands of private parties, as long as those private parties are achieving a public purpose.

That principle, recognized at the time of the writing of the Constitution, is simply being applied to the unforeseen circumstances of how cities and metro regions operate and change in a post-industrial world.

|6.28.05 @ 11:23AM|#

Joe, the mill is completely open for public use. The condo owned by Joe Median-Wage-Earner is not. Now, if Joe's title explicitly requires him to allow the public to use his kitchen at any hour of the day, at a rate set by the government, then the analogy would hold a little better. Of course,unloading the condos at those terms may prove problematic.

MP|6.28.05 @ 11:24AM|#

Yes, and I'm wondering what boundary allows the political branches to declare the operation of a for-profit grist mill by a private party to be within the boundary, and the construction of housing units to be outside of it.

The same boundary that would potentially allow a for-profit highway to be owned and operated by a private party, regulated by a state authority, and open for public use. As I'm not initimately familiar with the day to day life of your typical 18th century citizen, I can't comment on how accurate it is to ascribe Grist Mills as Public Use entities, but I can see that someone more knowledgeable than I can make that case.

|6.28.05 @ 11:24AM|#

Will,

Good answer. Where is this "ongoing basis" standard established? If your answer is, in the legislation drawn up by the legislature and executed by the executive, does that not imply that the political branches are empowered to define such standards?

"Ye Olde Ice Cream & T-shirt Shoppe does not provide a vital public service in the manner that a mill or electric utility does." Says who? No, really, in all seriousness, whose job is it to decide which private, profit-seeking businesses provide "a vital public service," and which do not?

The Supreme Court has said (or, rather, accepted the political branches argument) that the provision of jobs, housing, a functioning real estate market, tax revenues, and a decent and healthy environment for people to live and work in are all important public interests, like electrical service to homes. You are of course free to disagree, but again we come to, who is empowered to make that judgement call?

|6.28.05 @ 11:32AM|#

MP,

So you're establishing a three-pronged test. Either the government must own the land and what gets built there, or the private party that owns the land must provide for the physical occupation of the land by the government/public, or the private party must provide a service that the entire public can utilize.

Is that right?

|6.28.05 @ 11:38AM|#

Joe, there is no public purpose in having Joe Median wage-earner own a home in place A, rather than place B, nor in having the Acme Widget Company have their offices in place A, as opposed to place B. There is a public purpose in having a mill, open for on-going use by the public, within then-existing limits to transportation on a moving body of water, in order for the public to be able to produce a good, flour, vital to human existence.

MP|6.28.05 @ 11:42AM|#

or the private party must provide a service that the entire public can utilize

Close. Unfortunately, this wording can be used to justify any retail storefront, such as gas stations. I'll have to work on that. (And yes, I understand that this is the crux of the issue, the balance between Public and Private.)

|6.28.05 @ 11:47AM|#

Joe,it is established by the common use of the word "public". If the general public cannot use something, then, logically, it has no public use. Joe's and the Acme Company's condos and offices are not available for use by the public, thus there is no public use. It really is quite simple.

As stated above, a purely retail development, completely open to the public, would be a closer call. Of course, all the retail establishments would have to be open on a 24/7/365 basis, which cuts down considerably the numbe of developers who would have interest. Even hotels have their gifts shops and bars close.

|6.28.05 @ 11:47AM|#

joe, I think you've been asked this before, but I am not sure you have answered it. In your opinion, under Kelo, what sorts of public purposes are not legitimate public uses, on principle? Because they way the law stands now, I don't see anything that does if speculative visions of increased tax revenues are sufficient reasons to invoke eminent domain on functioning communities.

|6.28.05 @ 11:51AM|#

As a graduate student specializing in seventeenth century Massachusetts, I wish to add some observations on the granting of charters for mills.

Yes, the government granted lands from the commons to an individual or group of individuals to errect a mill. Included in this grant would be the right to harvest large amounts of timber for the construction of both the mill itself and the dam, as well as the right to dam the river (with the resulting flooding upstream). However, typically the land and timber grants came from the land held IN COMMON by the village, county, colony.

In a way, this was denying land to a freeholder in the future, not taking it from an inhabitant. In exchange for the land grant and the monopoly priviliege to operate the mill (grist or saw) the mill operator was responcible for maintaing the mill, the dam, and any roads or bridges that lead to the mill for a set number of years (usually ten or twelve). Additionally, the mill operator had to take all jobs for a fee set by the granting body. It was the case that many mills operated at no profit, or even a loss, for their entire tenure, and that the main advantage of running a mill was in the ability to sell the unused portion of the land grant.

The village, town, or county recieved roads, bridges, and a mill in exchange for some of its unused land. In return, the mill operator was saddled with obligations and restrictions with the only guaranteed benefit of being able to sell timber rights and individual plots of any unused land. But, even in selling their land the mill owners were providing a "public good" by allocating resources for the village.

This pattern of land allocation was mainly practiced when land was abundent and still coming under cultivation, a process that continued for most of eastern North America into the nineteenth century. We are no longer dealing with lands held in common, and therefore the connection of mills to Kelo is slim at best.

GinSlinger

|6.28.05 @ 12:00PM|#

Will, the public purpose in a redevelopment plan is not to put Joe Average at a certain address. The fact that Joe Average bought one of the new condos is peripheral to the public purpose of such a plan. The purposes can include creating more jobs (as important as flour for human existence), providing better public access (visual and physical) to the beach, or a whole host of other things.

Also, Will, is Edwards Air Force Base open for the public to traipse about in? I can tell you that the grist mills of yore were not open 24/7.

mj, under Kelo, the decision of what qualifies as a public use is left to the political branches, and the states. Kelo does not provide any guidance, at all, as to what those branches can designate public use.

|6.28.05 @ 12:03PM|#

Thank you for the background, Gunslinger, but you left out the issue surrounding mills that is central to the discussion: they were allowed, by the Mill Acts, to flood the land - the privately owned land - of their upstream neighbors. This land could be taken by the private party because the operation of the mill served a public purpose.

|6.28.05 @ 12:04PM|#

Joe, apparently you are under impression that the terms "public use" and "public purpose" are synonymous. This impression is false, albeit a falsehood promulgated by the Supreme Court.

Edwards Air Force base is owned by the public. Joe's condo is not.

M|6.28.05 @ 12:06PM|#

the Constitution didn't change

Thank God...b/c I thought your point was that Thomas made it breathe.

As for the mills and historical distinctions b/n public use and public purpose, Thomas thinks there's conflict and that the issue wasn't entirely settled. (Maybe the planning associations that you cheered on in this case didn't put it quite that way - "Oh, no, sir, we've always been able to take your land away for shiny new buildings. It's an honorable part of American history! Very patriotic, to fixy things uppy....")

"The disagreement among state courts, and state legislatures, attempts to circumvent public use limits on their eminent domain power, cannot obscure that the Public Use Clause is most naturally read to authorize takings for public use only if the government or the public actually uses the taken property."

|6.28.05 @ 12:09PM|#

No Joe, this was not allowed because the mills served a public purpose.It was allowed bcause the mills were available for use by the public. Again, it is a perversion of language to state that the terms are synonymous. They are not.

|6.28.05 @ 12:12PM|#

"This impression is false, albeit a falsehood promulgated by the Supreme Court."

Hey, take it up with the framers of the Constitution, since they seem to have had the same false impression.

theOneState|6.28.05 @ 12:13PM|#

Joe, it's hard to believe you're not uncomfortable with this decision.

Whatever the legal status of the question, it seems that most Americans would think the kind of takings in Kelo isn't allowed, that it would be a gross manipulation of the law and a frightening violation of basic property rights.

Apparently a lot of legal scholars think it should be prevented by the current Constitution. Five justices disagree.

Now, let's say that the constitution should be a living document. Let's even say the Takings clause is not intended to be prohibitive as Thomas thinks. Shouldn't the interpretation of the Clause and of property rights in general have matured in a way that fits contemporary America's overwhelmingly obvious belief in the primacy of personal property rights?

I mean, this decision is stunningly backwards in relation to the way most Americans today think. A living constitution should prevent a decision like this, shouldn't it?

|6.28.05 @ 12:19PM|#

You can keep quoting that assertion, M, but it remains an assertion. Thomas's "most natural reading" was not the one in place at the time the Constitution was written.

"No Joe, this was not allowed because the mills served a public purpose.It was allowed bcause the mills were available for use by the public." That's not what Thomas argues. Again, from his dissent:

"At the time of the founding, �[b]usiness corporations were only beginning to upset the old corporate model, in which the raison d�etre of chartered associations was their service to the public,� Horwitz, supra, at 49�50, so it was natural to those who framed the first Public Use Clauses to think of mills as inherently public entities."

OK? Not "open to the public." Not "owned by the public." Rather, "their service to the public" (defined as working in the public interest, not merely having human beings as customers) is what made "those who framed the first Public Use Clauses to think of mills as inherently public entities."

Also, M, I continue to sand by that argument. "Making the Constitution breathe" is merely a disapproving term for applying the unchanging principles to novel situations. Thomas, and you, are drawing a phony line.

MP|6.28.05 @ 12:20PM|#

Will,

You are walking into joe's trap by using the phrase "public purpose". I challenge you to instead supply a brief, coherent definition of "public use" that would make the Kelo taking obviously unconstitutional. What joe presented as a "three prong test" was close, but still allowed for too many private businesses.

|6.28.05 @ 12:23PM|#

I am uncomfortable with the decision, TheOneState. I just am not willing to distort Constitutional principles to get the outcome I want. I have also offered criticism of where I think it falls short.

As for people's feelings about takings like this - that's why the justices threw such decisions back onto the branches that are most answerable to the public. The New London plan won the support of the city's voters. In another case, Lakewood OH, the voters booted from office all the City Councillors who supported a plan that had lots of takings.

|6.28.05 @ 12:26PM|#

MP,

It's not my trap. It's the doctrine that has governed the reading of the Takings clause for centuries.

"What joe presented as a "three prong test" was close, but still allowed for too many private businesses." What, so now we're tailoring our Constitutional doctrine to the outcomes we want? "Hmmm, what reading is going to stop there from being too many private businesses?" is not how honest people decide how the language of the Constitution should be applied to a case.

|6.28.05 @ 12:36PM|#

joe,

So, in other words, "public use" is an empty vessel into which a local government can pour any meaning. That makes the takings clause a dead letter that provides little or no protection against the whims of of the state for the individual citizen. That is what bothers me most about this decision, and makes it entirely unacceptable. It puts far too much trust into the good sense and judgement of politicians and bureaucrats, people who, on the whole, demonstrably have little of either.

|6.28.05 @ 12:53PM|#

No, MJ, I reject Joe's claim that the framers adhered to the notion that "public use" is synonymous with "public purpose". That was an invention of later Supreme Courts.

Under Joe's theory, in which public purpose, as defined by a local governing body, is the test, the framers were just feeling verbose one day, and so they wrote the 5th Amendment in the manner they did, instead of simply writing that government may take property from a citizen, as long as compensation is paid. This is similar to how one gets to the point that "interstate commerce" can encompass all human activity. Of course, to accept this process as reasonable, one is forced to conclude that the framers were just killing time in the Philadelphia heat that one summer, when they could have simply stated, "We'll hold an election, and then just make things up as we go along".

MP|6.28.05 @ 12:59PM|#

joe,

"public use" is an admittedly nebulous phrase. You apparently believe that it means whatever the political body decides it means. You appear to also believe that the courts only role in deciding Eminent Domain cases should be as a secondary review body, using arbitrary rules vs. some sort of concrete foundation upon which to make judgements. I believe public use means something more decidedly concrete, rooted in the understanding of that phrase in 1788. Partially agreeing with your original "three prong case" is not tailoring to my wishes. In saying "too many private businesses", I'm expressing that I find it highly dubious that the original general understanding of "public use" was whatever the politicians said.

The "trap" is public use implies public purpose implies whatever the politicians saw. When you take a step away from public use, you are a step closer to discarding the phrase altogether.

If you think the phrase "public use" has no meaning, then just say so. You then, are in fact, editing out phrases to the Constitution that you find objectionable.

|6.28.05 @ 12:59PM|#

Joe supports majoritarian tyranny at the local level. In other words, as long as 50.1 percent of a local polity supports an action against a citizen, it is constitutionally legitimate. If a local governing body can define "public use" as "public purpose", or any other way they desire, why not let them define "unreasonable search" in any manner they wish? Hell, most stolen goods are fenced in poor neighborhoods, so why not let local police kick in doors in poor neighborhoods without warrants. As long as 50.1 percent of the population agrees, why not?

|6.28.05 @ 1:15PM|#

metalgrid: "Looks like O'Conner has the best individual liberty score of the lot."

Sometimes it is important to look at the reasoning of the individual justice, not just the bottom-line result in the case. For example, in *Lawrence v. Texas* O'Connor did go along with the majority in finding the Texas anti-sodomy law unconsitutional--but (unlike the majority) she relied exclusively on the fact that the law applied only to *homosexual* sodomy. In other words, she was at least willing to consider the possibility that a law punishing both homsexual and heterosexaul sodomy might be constitutional. (Though she did strongly suggest that she doubted Texas would enforce such a law even-handedly...)

|6.28.05 @ 1:20PM|#

Sometimes it is important to look at the reasoning of the individual justice, not just the bottom-line result in the case. For example, in *Lawrence v. Texas* O'Connor did go along with the majority in finding the Texas anti-sodomy law unconsitutional--but (unlike the majority) she relied exclusively on the fact that the law applied only to *homosexual* sodomy. In other words, she was at least willing to consider the possibility that a law punishing both homsexual and heterosexaul sodomy might be constitutional. (Though she did strongly suggest that she doubted Texas would enforce such a law even-handedly...)


On further reading, it seems that that was the only clearly indicated constitutional barrier to the law. The rest were basically interpreted inventions of the constitution, much like 'public use' and 'commerce'.

|6.28.05 @ 1:33PM|#

joe, and any Living Constitution types:

If the Con were alive, it could amend itself. It is a legal document with that peculiar characteristic of legal documents that the language is fixed to the point of becoming obscure or arcane. To suggest that it is alive is to further eviscerate it by rendering Article V unnecessary.

joe likes to wag his finger about people who are unhappy with results. Results are not discussed in the contract. Perhaps joe should use the described technique in the document to achieve his results when legislation fails to do so.

FWIW, to me the Supremes spend too much time acting as common-law judges in equity (althougth the Con gives them that job), and too little time preserving the contract that empowers them. The meaning of public use as it stood in 1787 is what must be applied to today's conditions, rather using today's conditions as justification to change the meaning. That's not how contracts work.

|6.28.05 @ 1:38PM|#

will - there also has to be a plan.

David Nieporent|6.28.05 @ 1:45PM|#

What makes grinding grain (or rather, the creation of water pressue sufficient to drive a grist mill) a public use, while the construction of housing is not?

Asked and answered many times, Joe. The mills were the equivalent of common carriers. Houses are not. Houses are private. Pfizer is private.

"Public use" doesn't mean everyone in the public actually uses it -- if you don't go to the park, does that make it private? -- but that everyone can use it. Everyone cannot use a house. Only the private owner can. The mills were, by law, open to use by everyone. They were quasi-public.


As for which judge is closest to our ideal, looking at who voted "the right way" on various cases isn't the right test. Kennedy illustrates that; he voted the pro-individual liberty side of many of the cases before Kelo/Raich, but he disappointed in Kelo/Raich. As a libertarian, one wants government policies that favor individual liberty -- but as a libertarian, one should want court decisions that favor strict construction. A libertarian judge who says, "I'm going to ignore the law to enact my personal preferences" simply gives cover for a non-libertarian judge to do the same thing. Since we're more likely to see the latter than the former, the libertarian activist judge is likely to hurt us in the long run. Whereas if judges act as if they need to follow the Constitution no matter what, we may lose out in a few cases, but we'll win far more.

|6.28.05 @ 1:58PM|#

Jude Wanniski is certifiably insane. He has referred to Slobodan Milosevic as the Abraham Lincoln of Yugoslavia and defends him to this day against all charges. There is no dictator or genocidal murderer whose boots Wanniski will not simulate cunnilingus upon.

|6.28.05 @ 1:58PM|#

As a libertarian, one wants government policies that favor individual liberty -- but as a libertarian, one should want court decisions that favor strict construction. A libertarian judge who says, "I'm going to ignore the law to enact my personal preferences" simply gives cover for a non-libertarian judge to do the same thing. Since we're more likely to see the latter than the former, the libertarian activist judge is likely to hurt us in the long run. Whereas if judges act as if they need to follow the Constitution no matter what, we may lose out in a few cases, but we'll win far more.


That is faulty reasoning that is supported by how the court currently acts. We have years of bad precedent behind us of very overreaching constitutional interpretations that is being followed by 'strict' constitutionalists to this day. Thus, I propose that having a libertarian judge that cuts through that precedent and interprets the constitution in a libertarian, liberty maximizing manner will in turn set precedent to future precedent observing judges who could otherwise have just used liberty limiting precedent from before that.

Given the lack of strict constitutionalists without a personal agenda (case in point - Scalia), it is only pragmatic that you asupport judges that maximize liberty no matter how they arrived at the conclusion.

|6.28.05 @ 2:14PM|#

On the train to New York today I had to view the hellish neighborhoods of "public" housing, and something occurred to me--with ED, the government is certainly very talented at knocking down poor neighborhoods and replacing them with middle or upper-class neighborhoods where the ED'd people can't afford to live, but has the government ever succeeded in building public housing that wasn't a hellhole? More importantly, has there ever been an ED case that helped rather than hurt the poorest members of society? Even dirt-poor cities like New London serve a noble purpose--they provide places where poor people can afford to live. Or people like me, who are no longer poor but prefers to live like a poor person so we can save money for our future. If Suzette Kelo or poor old Wilhelmina Dery want to remain in Connecticut after their homes are torn down, all I can say is: Good luck. You'll need it. There's noplace you can afford to buy a house.

Ever since the government got into the business of urban renewal our cities have gotten worse. There are no safe places for the urban poor to live, in part because their homes keep getting bulldozed. The raffish bohemian neighborhoods of the past are replaced with either elegant, wealthy neighborhoods or crime-ridden hellholes. And Joe, the Champion of the Poor and Weak, is fully in support of this. Not officially, of course, but what he stands for has the same result.

|6.28.05 @ 2:14PM|#

it's a bit of a moot point, as a judge "willing to cut through precedent" is not likely to make it to the supreme court, given today's political climate. after all, the inane reduction of politics to "red and blue" also exists in the minds of the politicians themselves. rhetoric aside, a candidate's appeal rests on what shade of green they are, as it were.

|6.28.05 @ 2:22PM|#

More importantly, has there ever been an ED case that helped rather than hurt the poorest members of society?

i agree with your sentiment, but that's akin to asking, "has there ever been a case of broadcast censhorship that's actually improved the quality of TV programming?" the best answer is a question: does it matter?

|6.28.05 @ 2:25PM|#

Jennifer: It seems the poor don't take pride enough in what the gov't gives them to keep shiny new projects from becoming hellholes. From what I've studied, the raffish neighborhoods were the hellholes of their day. Whatever order existed came from within the people rather than from city hall. Poverty may be the intractable windmill that governments tilt at.

|6.28.05 @ 2:42PM|#

i was right there with you until the babylon 5 reference.

|6.28.05 @ 2:44PM|#

Or shade of yellow.

I think maybe we just need to start over from the beginning again...

|6.28.05 @ 2:48PM|#

i was right there with you until the babylon 5 reference.
Comment by: zach at June 28, 2005 02:42 PM


I can't help it. I'm a geek wannabe.

|6.28.05 @ 2:48PM|#

Dynamist-
There was nothing wrong with the poor Fort Trumbull neighborhood of New London, except the city decided that the people who lived there weren't paying enough to the government. Funny, I'd always had the naive idea that government should exist to serve the people, but apparently I was wrong--PEOPLE exist solely to generate money for the government.

|6.28.05 @ 2:52PM|#

why, so it can better help the people, of course.

|6.28.05 @ 2:58PM|#

It seems the poor don't take pride enough in what the gov't gives them to keep shiny new projects from becoming hellholes.

If the government confiscates my ancestral home and then allows me to rent a one-bedroom concrete apartment, they didn't GIVE me a goddamned thing. Also, in MY home I have some say over who lives there with me; in public housing I have no say over the unemployed welfare mama who moves in to what used to be my grandmother's bedroom. There's always been poverty, but it wasn't half so bad until the government decided to eliminate poverty by eliminating the property rights of the people too poor to fight them.

On a side note, now that the World Trade Center is gone: rather than build a memorial, why not give the land back to the radio-store owners who lost it through ED back in the 70s?

MP|6.28.05 @ 3:11PM|#

Jennifer,

You're jumping around here, talking about New London and the South Bronx in the same breath. The slum clearance in Harlem/South Bronx that you saw taking Metro North today is not the same as the New London evictions. The NYC clearance usually involved tenement housing and renters. I'm not trying to justify the NYC urban renewal, as it included massive corruption and left, as Dynamist said, things no better than before, but New London's land grab and NYC's urban renewal aren't the same.

|6.28.05 @ 3:17PM|#

MP, "I believe public use means something more decidedly concrete, rooted in the understanding of that phrase in 1788." In 1788, the Mill Acts allowed the taking of upstream land so a private party could build a private mill on private land, as long as the mill was operated in a manner that furthered the public purposes decided upon by the executive and legislative branches.

And I do believe the phrase "public use" has meaning - it distinguished legitimate takings, which are done for the benefit of the public, from private takings, which are done with no public purpose, and ONLY serve the interest of the recipient.

|6.28.05 @ 3:20PM|#

Will Allen,

"Joe supports majoritarian tyranny at the local level. In other words, as long as 50.1 percent of a local polity supports an action against a citizen, it is constitutionally legitimate."

Actually, I do not. I believe that redevelopment takings can be based on planning that is so poorly done as to constitute a due process violation, or so discriminatory as to constitute an equal protection violation.

And, of course, a truly private takings (one that furthers no public purpose) is a violation of the takings clause, regardless of how popular the idea is locally.

David Nieporent|6.28.05 @ 3:25PM|#

That is faulty reasoning that is supported by how the court currently acts. We have years of bad precedent behind us of very overreaching constitutional interpretations that is being followed by 'strict' constitutionalists to this day.

Metalgrid -- you're confusing strict construction and stare decisis. I'm with Thomas on the latter. It's an appropriate doctrine for statutory interpretation, but not for constitutional interpretation.

----

Joe: And I do believe the phrase "public use" has meaning - it distinguished legitimate takings, which are done for the benefit of the public, from private takings, which are done with no public purpose, and ONLY serve the interest of the recipient.

There's essentially no such thing as a Taking which "ONLY" serves the interest of the recipient. As we all know from our Commerce Clause jurisprudence, every activity on the planet -- even a handful of insects walking around in a cave -- has an "effect" on the economy. Every Taking will affect the economy, positively or negatively.

If it's positive, it "serves the interest of" the public, according to the Kelo reasoning. If negative, it doesn't -- but it's not up to the courts to evaluate whether the government's prediction that the effect will be positive is valid or not.

In short, like the Kelo majority, you propose no limitation at all.

|6.28.05 @ 3:28PM|#

Mr. Neiropont,

Farmers who only had apple orchards, or laborers in the cities, could no more use a "public carrier" mill than someone who wasn't in the market for a condo could buy a condo in a redevelopment area.

But this is an interesting question - does the "public carrier"-type restriction on the mill's operation make it a valid public use because it makes access "universal," or because it furthers a public purpose? Let's look at Thomas's language:

"At the time of the founding, �[b]usiness corporations were only beginning to upset the old corporate model, in which the raison d�etre of chartered associations was their service to the public,� Horwitz, supra, at 49�50, so it was natural to those who framed the first Public Use Clauses to think of mills as inherently public entities."

Why was it "natural to think of mills as inherently public entities?" because their "raison d'etre...was their service to the public." BTW, not all corporations had "common carrier" type stipulations, but they were all chartered for the purpose of serving the public. Thus, the "universal access" standard is not the only regulation that would make a corporation an "inherently public entity."

|6.28.05 @ 3:30PM|#

again will, there also has to be a plan. no, a really good plan.

|6.28.05 @ 3:33PM|#

"More importantly, has there ever been an ED case that helped rather than hurt the poorest members of society?"

Yes, there have been thousands. You just don't hear about them, because the media doesn't consider them very compelling. Which is absurd, of course - anything related to urban planning is compelling.

For example, Jennifer, many of those hellish public housing projects replaced more hellish gilded era slums. And many of them functioned very well as working class neighborhoods for decades. However, given the problems you correctly identify with government-built housing projects, wouldn't compassion for the poor suggest that such projects are better carried out by private parties?

|6.28.05 @ 3:42PM|#

MP-
Harlem and the South Bronx took private property for high-sounding purposes that resulted in nothing good. If the big picture's the same, who cares about the details?

Joe-
This ED ruling is going to just make things worse. First of all, where the hell are poor people going to LIVE if everything they can afford is ED'd out of existence? Will they be herded into the high-crime highrises? Great. Second, I wouldn't be surprised if this makes property values drop even more in certain poor areas.

Why do I say this? I've been voluntarily living like a pauper for two years now, so I can save all my money; my plan was (maybe still is) to buy a multi-family house, live in part of it, and rent out the rest. But the places I can afford (unless I spend ten years saving for the down payment) are in the neighborhoods likely to be condemned by the city because of low tax revenue. Where I live--Bristol--the DAY after the Kelo ruling the local paper had a front-page story about the city's plans to demolish a low-rent mall and install a parking garage and "high-end" shops where the locals not only won't be able to afford to shop; they couldn't even afford to work there, what with the fancy dress codes we can expect for employees.

Joe, don't you see a disconnect in the idea of improving cities by kicking out the (non-criminal) people who live there? It's like those insane militarists who want to "strengthen" America by stripping all the rights from her citizens. Completely missing the forest for the trees.

|6.28.05 @ 3:42PM|#

such projects would better be carried out by private parties, with the consent of the previous inhabitants of the area.

|6.28.05 @ 3:42PM|#

David Nieporent,

You make a very good point in your 3:25 post, one distinct from the public/private argument that undergirds Thomas's dissent, and closer to the issues O'Connor raises.

O'Connor accepts that public purposes satisfy the "public use" phrase, but does not accept that a purely economic development taking, that has nothing to do with addressing an underlying problem like environmental contamination or blight, satisfies the public use standard.

I'm going to come right out and say that I don't know whether O'Connor or the majority is right. My only point is to grab the low-hanging fruit of Thomas's silliness.

|6.28.05 @ 3:46PM|#

Jennifer, those are policy considerations, to be dealt with by the political branches. They aren't legal or constitutional arguments that have bearing on the task that faces the court.

That said, they are really good policy considerations, and I hope the attention this ruling brings to the practice helps to bring about better policies.

Although your statement, "I wouldn't be surprised if this makes property values drop even more in certain poor areas," is wildly off the mark. The cost of land goes up when it's marked for taking.

|6.28.05 @ 3:48PM|#

"Joe, don't you see a disconnect in the idea of improving cities by kicking out the (non-criminal) people who live there?"

Yes, very much so. It's an argument I make all the time. You should run for city council on that ticket - that would rule.

|6.28.05 @ 3:49PM|#

Of course, Joe says the local governing body gets to define "public purpose", even gets to command the English language so as to make "public purpose" synonymous with "public use", so there effectively is no limit on the local governing bodies' power. The ability to redefine words is quite a power to have.

In another inapt analogy, Joe neglects to state that there is nothing to prevent any citizen from producing grain to mill, thus gaining use of the mill at anytime (hence having "public use") whereas a condo which belongs to Joe is permenently excluded from future use by the public (hence not having "public use"). Joe just hates the word "use", and will leap through any number of hoops to to avoid it's implications. Luckily for Joe, there are at least five members of the Court who concur with him that words don't actually mean anything.

I tell ya', under this theory of jurisprudence, the fellas who wrote the Constitution would have been better served by just sitting in taverns and drinking ale all summer, given that the words in the document are devoid of meaning.

|6.28.05 @ 3:49PM|#

Metalgrid -- you're confusing strict construction and stare decisis. I'm with Thomas on the latter. It's an appropriate doctrine for statutory interpretation, but not for constitutional interpretation.
Comment by: David Nieporent at June 28, 2005 03:25 PM


I don't think so. When chosing a justice for the SC, you are basically parsing through a whole slew of them that are adherants of stare decisis. At which point it is not quite possible to tell the difference between the two - see Scalia, Brown, Thomas records before they were instated to the SC. They each have a different agenda to which they give a sympathetic constitional interpretation and other agendas to which they give strict constitutional interpretations.

So that basically leaves us with only hindsight after their SC appointment as a measuring stick for their performance. At which point, the ends matter more than the means. Hence, it is worth picking the more liberty oriented of the lot that can twist precedent to accomodate a liberty oriented outcome than it is to take these judges at their word - they all have a personal agenda in the process. I just favor the ones that have a liberty oriented one.

|6.28.05 @ 3:50PM|#

FINALLY, zach contributes something useful!

"such projects would better be carried out by private parties, with the consent of the previous inhabitants of the area."

Yes, that is always the best outcome. Smart and decent political figures work hard to bring that about, and do takings as a last resort. The question before the court, however, was about legal issues, not policy issues.

|6.28.05 @ 3:53PM|#

Blah blah blah, Will. "Don't mean anything. Don't mean anything." I've told you before, the words do mean something. They just don't mean what you'd prefer them to mean.

I've stated quite clearly what it means. I have at least six justices - not five, but those who joined O'Connor as well - who think the ahistorical reading of "public use" you put forth STINKS!

|6.28.05 @ 3:58PM|#

Anyway, even Thomas, whose originoriffic word games can do no wrong, bases his argument that the mills amounted to a public use on their advancement of a public good. The "common carrier"-type conditions of their operation being merely the means by which they achieved this public purpose.

Again, from his dissent: "At the time of the founding, �[b]usiness corporations were only beginning to upset the old corporate model, in which the raison d�etre of chartered associations was their service to the public,� Horwitz, supra, at 49�50, so it was natural to those who framed the first Public Use Clauses to think of mills as inherently public entities."

Please note, noe reference to universal access, and big honking reference to "their service to the public."

|6.28.05 @ 4:01PM|#

Thomas voted two years ago to uphold sodomy laws. He supported the right of police to break into your home, break down your bedroom door and arrest you for performing non-government-approved sex acts.

He has some limited-government libertarian principles, and some "America is a Christian nation" authoritarian principles. He's hostile to privacy rights and civil liberties.

He wouldn't be an awful choice for chief justice, but he doesn't deserve all this uncritical praise from libertarians.

|6.28.05 @ 4:07PM|#

Joe, you have merely asserted that the framers thought the term "public use" was synonymous with the term "public purpose". You are wrong.

As to what a majority of Justices opine, well, a majority of justices once opined that Dred Scott was decided correctly as well, so, no, what a majority of justices opine isn't determinative of what is actually a correct interpretation of the law.

|6.28.05 @ 4:14PM|#

"There was nothing wrong with the poor Fort Trumbull neighborhood of New London, except the city decided that the people who lived there weren't paying enough to the government. Funny, I'd always had the naive idea that government should exist to serve the people, but apparently I was wrong--PEOPLE exist solely to generate money for the government.'

Bravo, Jennifer! This comment sums up the injustice of the Kelo ruling the best. It is antithetical to Libertarianism, and there is no way (sorry joe) that it can be construed otherwise. Jennifer, never stop posting!

|6.28.05 @ 4:15PM|#

FINALLY, zach contributes something useful!
"such projects would better be carried out by private parties, with the consent of the previous inhabitants of the area."
Yes, that is always the best outcome. Smart and decent political figures work hard to bring that about, and do takings as a last resort.

finally, joe tries to offer a moral defense for broad ED powers. not much to it, but a start at least.

The question before the court, however, was about legal issues, not policy issues.

...wait, nevermind. damn it, so close.

by the way joe, maybe you could help me out. i'm trying to get my friend's car from him. being the smart, decent person that i am, i'm working hard to get him to sell it to me. he keeps repeating some shit about needing it for his job or something... long story short, he's reluctant. don't worry, i'm saving the option of hotwiring it as a last resort. the thing is, being smart and decent and all, i want a really good plan for hotwiring it, if and when the need arises. any suggestions?

|6.28.05 @ 4:19PM|#

zach, 1) you aren't the government, you aren't empowered and required to act in the public's interest, 2)your taking posession of the car wouldn't advance any public interest at all, and 3) the moral codes the govern individuals' behavior and those that govern government's behavior are different.

But other than that, your analogy is perfect.

|6.28.05 @ 4:24PM|#

you're absolutely right, thank god, which is why i wake up every day thankful that i am governed by benevolent robots.

|6.28.05 @ 4:28PM|#

Thank you, Swede.

"There was nothing wrong with the poor Fort Trumbull neighborhood of New London, except the city decided that the people who lived there weren't paying enough to the government. Funny, I'd always had the naive idea that government should exist to serve the people, but apparently I was wrong--PEOPLE exist solely to generate money for the government.'

Joe, based on your posts here, I'd guess you'd say that the above statement I made is incorrect. In all seriousness, could you explain where I got it wrong?

|6.28.05 @ 4:37PM|#

Bear in mind, Joe, that when New London was arguing against Kelo in the Supreme Curt, one justice asked if a city could demolish a Motel 6 to put up a Ritz-Carlton, which would generate more tax revenue. New London said yes. So how am I wrong to view this as the belief that the government's ability to get money from a piece of property is more important than the rights of the people who own it?

This is not about mills, roads, military bases or hospitals--this is about MONEY.

|6.28.05 @ 4:41PM|#

Daze

In his separate opinion Thomas stated that he disagreed to the Texas sodomy law but that it was not unconstitutional. He has written several opinions along those lines: ie I get to rule on the law not my personal wishes.

I'm not sure how consistent he's been on that, and I do think he was wrong in the Texas case; ie I think that the law was overturned correctly on equal protection grounds.

Since CJ is not that important I would advise Bush not to push someone as controversial as Thomas and concentrate on getting whoever he nominates for Rehnquist's replacement approved.

But then W never listens to me otherwise he'd legalize drugs and wouldn't have invaded Iraq. :)

|6.28.05 @ 4:48PM|#

No, Jennifer, you got it right. The New London plan sucks. We're all horrified in my office.

Should I take it from your posts that you would approve of targetted blight takings - cases in which there was something wrong with the properties?

|6.28.05 @ 4:50PM|#

Joe-
I could see, in some cases, taking a SINGLE blighted property, say if the absentee owner has done nothing about the fact that the property is currently used by crackhead squatters who terrorize the neighbors. But I don't approve of blighting an entire neighborhood; why should I be punished because the homeowner down the street is an irresponsible jerk?

|6.28.05 @ 4:58PM|#

Sometimes, joe slips and tells us what he really thinks. "The moral codes the govern individuals' behavior and those that govern government's behavior are different" is as close as he'll get here. It's OK for the government to take your home without your consent. Why? Because they're the government.

And yes, I know the Constitution allows it. But your logic would free the government of any real restraint. Of fucking course any ED taking will have some "public purpose." Any commercial entity contributes to the economy, and any private home that's big & new & shiny will generate more sales tax, beautify the neighborhood, etc.

|6.28.05 @ 5:10PM|#

oops. Sorry about the italics

MP|6.28.05 @ 5:12PM|#

I'm going to defend joe by quoting joe:

"I'm going to come right out and say that I don't know whether O'Connor or the majority is right."

I don't think joe has ever come out and said the government should have the right to take whatever private property they want in the name of the public. Defending the decision (or attacking Thomas's defense) on legal grounds is not the same as supporting the decision on moral grounds.

And in light of this discussion, I'm somewhat swayed to joe's position that Thomas's use of the Mill Acts undermines his defense of the phrase public use. The Amoskeag decision referenced by Thomas has an interesting discussion of the history of the Mill Acts.

|6.28.05 @ 5:35PM|#

joe is persuasive in his legal arguments MP, which is (i suspect) why he would rather argue the merits of the respective justices' opinions based on precedent than discuss the fundamental morality or rationality of broad ED powers. or, for that matter, the basic flaws with his leftist approach to solving problems posed by ED abuse.

|6.28.05 @ 5:46PM|#

And I do believe the phrase "public use" has meaning - it distinguished legitimate takings, which are done for the benefit of the public, from private takings, which are done with no public purpose, and ONLY serve the interest of the recipient.

What defines "legitimate" and "for the benefit of the public" beyond what city council wants?

MP|6.28.05 @ 5:46PM|#

zach,

The attractiveness of the H&R board and comments section is that most threads are not limited to fundamental philosphical discussions. Getting into the nitty gritty details of particular topics leads to more refreshing daily discussions. joe has been around this board for a while. If all he did was rehash the same philosophical principals, he wouldn't be as valued a contributor as I (and I believe others) think he is.

|6.28.05 @ 5:54PM|#

MP, I've never doubted that previous Supreme Court decisions have argued that "public use" is synonymous with "public purpose". I also know that, as matter of employment of the english language, the terms are not identical. I am then forced to wonder how the people who wrote the Amendment were temporarily stripped of their normally superb literary abilities,and thus employed the term "public use", when they really meant "public purpose".

|6.28.05 @ 5:59PM|#

MP, you're right. still, joe's nitty gritty details are part of a broader question, one which he seems perfectly happy to avoid.

then again, given the general leanings of H&R's readership, i suppose i can't blame him.

Jason Sonenshein|6.28.05 @ 7:10PM|#

Ah Jason, which would you rather have, someone who uses their preferences to find rights in either Substantive Due Process or the Ninth Amendment, or someone who enforces the more unambigous text of the Constitution? Personally, I'd rather have both (although I think Substantive Due Process is BS), but judges should at a minimum support the clearer elements of the text.

MP, I'm sorry I took so long to answer your question. I'm with you. I'd also rather have both, and I agree with you that "judges should at a minimum support the clearer elements of the text." But, in Hiibel and Hamdi, Justice Thomas didn't even do that.

|6.28.05 @ 10:06PM|#

This is not about mills, roads, military bases or hospitals--this is about MONEY.

A-fucking-men.

|6.29.05 @ 10:27AM|#

Eric the .5b,

"What defines "legitimate" and "for the benefit of the public" beyond what city council wants?"

Isn't this a question of "who decides?"

Ok, Eric, who should decided whether a certain action by a city is in the interest of that city's public?

BTW, what does your handle mean?

|6.29.05 @ 1:54PM|#

Monty Python had a sketch where a man sings about his pet, "Eric the half a bee."

|6.29.05 @ 3:22PM|#

Isn't this a question of "who decides?"

Not quite, but close.

Ok, Eric, who should decided whether a certain action by a city is in the interest of that city's public?

Obviously, the elected officials, presumably with some scattered input from the public.

But that's not what I'm asking. You've been big on pimping the point that the ruling requires that the city have a plan and that the takings are justified as being in the best interests of the public. But who's going to determine whether that's so besides the city? Is any city going to say that their plan won't benefit the public?

The point is that a plan and a position that the plan will be beneficial is a fig leaf. The city isn't going to justify taking someone's home on the grounds that the company getting that land donated to the mayor's campaign, after all.

|6.29.05 @ 3:31PM|#

BTW, what does your handle mean?

Stevo has it right. It's a variation on an old nickname.

MP|6.30.05 @ 9:37AM|#

So you're establishing a three-pronged test. Either the government must own the land and what gets built there, or the private party that owns the land must provide for the physical occupation of the land by the government/public, or the private party must provide a service that the entire public can utilize.

Is that right?

Even though this allows for takings for retail/service establishments, including gas stations and dentists offices, yes, I think this is a good definition of "public use".