A Difference in Deference

Last thing from me about Kelo, of which I can only assume most of you are now thoroughly bored. One thing that troubled me as I dug through various Takings Clause cases was the repeated insistence that the Court must defer to legislative determinations of what constitutes a "public use" in all but the most outlandishly pretextual instances.

My question is: Why? They don't do that for a whole slew of other terms. The Court didn't feel compelled to defer to a legislative interpretation of "speech" that excludes conduct like burning an American flag. The Court doesn't just let states determine for themselves whether their laws provide "equal protection" or whether some investigative technique counts as a "search." If not in these cases, why do governments get to act as their own Webster's when it comes to "public use"?

Comments

[jf]

I doubt that there has ever been a "Golden Age of Supreme Court Jurisprudence", but at the same time I doubt there's been a lineup of justices since the New Deal that has been more concerned with determining what the outcome of a case should be, and then making up rationales to justify the decision. I'm sure the trend has always been there, but it seems to have really taken off with the imaginary reasoning behind Roe v. Wade (right decision, wrong jsutification).

Someday there may be a Supreme Court that actually decides that consistent application of the law is more important than social engineering, and the mess created by this court might finally get cleaned up.

[sulla]

I agree completely. To my mind, it's the most insidious part of the court's opinion. They tell the states that they're perfectly capable of preventing these abuses through their legislatures...

We shouldn't need to do that because we have (had) a fifth amendment to the Constitution.

[Matt]

Your larger point is valid -- if the legislature is trying to "benefit," at the very least in the sense that it is the plaintiff or defendant in court, why does it get to decide the most important ground rule? But the answer to your specific examples is that in the case of curtailing speech, executing a search or providing equal protection, the public as a whole -- the whole body of citizens whom the legislature represents -- doesn't have a clear stake. Legislatures ostensibly exist to execute the will of their constituents as a whole, and are supposed to have low-to-the-ground expertise courts don't when it comes to doing things to benefit the public. Jailing a flag burner, searching a vehicle or putting the screws to some individual the way they wouldn't some other individual doesn't impact the whole of its constituents the way building a bypass or razing a blighted neigborhood does.

[MP]

While researching the cites in the Thomas dissent, I found this great quote from Justice Gray in the 1885 Head v. Amoskeag case:

"The question whether the erection and maintenance of mills for manufacturing purposes under a general mill act, of which any owner of land upon a stream not navigable may avail himself at will, can be upheld as a taking, by delegation of the right of eminent domain, of private property for public use, in the constitutional sense, is so important and far reaching, that it does not become this court to express an opinion upon it, when not required for the determination of the rights of the parties before it." (emphasis added)

I don't know that it answers the question, but it sheds light on the court's general reluctance to draw a bright line on this issue.

[NaG]

See Fallbrook Irr. District v. Bradley, 164 U.S. 112 (1896). In that case, the Court did not defer to the legislature's view of what constitutes "public use." I quote: "We do not assume that these various statements, constitutional and legislative, together with the decisions of the state court, are conclusive and binding upon this court upon the question as to what is due process of law, and, as incident thereto, what is a public use. As here presented, these are questions which also arise under the federal constitution, and we must decide them in accordance with our views of constitutional law."

As part of the Court's decision as to what might constitute a "public use," it wrote: "If it be essential or material for the prosperity of the community, and if the improvement be one in which all the landowners have to a certain extent a common interest, and the improvement cannot be accomplished without the concurrence of all or nearly all of such owners by reason of the peculiar natural condition of the tract sought to be reclaimed, then such reclamation may be made, and the land rendered useful to all, and at their joint expense. In such case the absolute right of each individual owner of land must yield to a certain extent, or be modified by corresponding rights on the part of other owners for what is declared upon the whole to be for the public benefit."

[SR]

"Last thing from me about Kelo, of which I can only assume most of you are now thoroughly bored."

Actually, I'm not half as bored by that as I am by the Lebanon posts at this point....

[Rich Ard]

Ah Shit, O'Connor's stepping down.

[Mr. Nice Guy]

Forgive me that this is a bit OTS, but things have been so thoroughly insane collective-wise in this country, and I've been feeling totally fried, so that's why I watched "A Star Wars Holiday Special" last night for the first time.

For those of you not in the know, this two-hour episode aired on TV back in 1978, and is infamous. I can't even begin to describe how metaphysically bad it is, and I'm a huge buff of this sort of thing. It's pure crack cocain of masochism. Somehow, things make more sense now.

[george pieler]

Exactly. The problem is and always been that the Court's jurisprudence on takings clause has always been a mess.

This is a good time for everyone to re-read (or read) Chapter 12 of Epstein's TAKINGS, on "Public Use". At least he articulates some standards that can and should make the clause a meaningful constraint on gov't action, esp. in a post-New Deal, Post-9/11 world of ever expansive govt. authority.

[Bobster]

"Last thing from me about Kelo, of which I can only assume most of you are now thoroughly bored."

A bored populace is a complacent and well-behaved populace.

[Xmas]

O'Connor just announced she's stepping down.

http://www.cnn.com/2005/LAW/07/01/oconnor.resigns.ap/index.html

[Davemac]

Maybe it doesn't matter anyway. In lieu of threatening an ED seizure, couldn't a city just tax people out of their homes?

All they'd need to do is assign an increased property value to land desired based upon its proximity to a development project. They would just need to calculate the right number(higher than the homeowners can possibly afford)to make people sell. If they can't pay and don't sell, assign liens to their home, then sell the lien to a developer. The developer can then foreclose on the lien, or otherwise strongarm the homeowners and take the property.

The difference in between being able to afford their taxes or not is small for most people, especially those in communities with high mil rates. For example, My grandfather pays more annually in taxes on his house in a slummy neighborhood than I pay for rent on my apartment. If the city decided to re-value his house again at twice what he pays now, he would have to sell, or stop eating.

MNG,

Doesn't it warm the heart to see such Star Wars favorites and Itchy, Lumpy, and Bea Arthur?

[Mr. Nice Guy]

Davemac:

Correction, my friend: BeaTRICE Arther.

I just read that George Lucas, if he could, would track down and burn every copy of the SWHS. Thank God for the internet..

[The Phantom Menace]

http://starwarsholidayspecial.com/

[Nobody Important]

I just read that George Lucas, if he could, would track down and burn every copy of the SWHS. Thank God for the internet..

Comment by: Mr. Nice Guy at July 1, 2005 11:04 AM

Maybe Lucas could claim that those copies need to be siezed for the public good...

[Adam]

Isn't this what the second amendment is for??!

[Jimbo]

MNG,

I used to tell people about the Star Wars holiday special (I think I described it as A Very Chewbacca Christmas) I witnessed on TV as a kid and they treated me as though I imagined/hallucinated the whole thing. I started to believe them, but then came proof that such a mostrosity was indeed presented.

[kevrob]

Emperor Palpatine would have saved himself a lot of trouble if he'd have just EDed the forest moon of Endor.

Seriously, the courts sometimes go out of their way to avoid voiding actions of the "political branches" on political questions, and sometimes seriously violate that same "principle." In the Warren era and into the Burger court the feds were not shy about replacing the judgment of elected officials when it came the administration of public school districts, prisons, mental health facilities and other public institutions that were violating civil rights. In one case, Kansas City MO, a federal judge arrogated the taxing power to the bench. Against that, reining in sometimes unelected planning commissions with a stricter definition of "public use" seems trivial.

Kevin

[keith]

I was always opposed to the way the Empire was using eminent domain to move wookies out of their treehouses to make room for more TarkenMarts.

[R C Dean]

Ah Shit, O'Connor's stepping down.

She may have been on the right side of Kelo, but she has been the worst kind of outcome-driven judge, and has generally come down on the side of mo betta bigga government. I say, good riddance, Sandra.

[alkali]

The Court doesn't just let states determine for themselves whether their laws provide "equal protection" ...

Actually, it does most of the time. Every law causes some differential treatment of people in some respect -- e.g., "how come murderers don't get to walk around free like everyone else?" -- and so the Supreme Court long ago said that where the distinction drawn by a state law doesn't fall along suspect lines (e.g., racial, religious, gender), the federal courts will be satisfied so long as the law has a "rational basis" related to a "legitimate state purpose." There are lots of other examples in constitutional law where the federal courts will defer to state and local governments.

[Mr. Nice Guy]

Darth Vader: Your property now belongs to the Empire and will be used to build an intergalactic Hardees'. We offer a compensation of 200 credits. It would behoove you to take it.

Homeowner: But I lived here my whole..

(Sound of flashing lightsaber and a scream suddenly cut short)

[James Anderson Merritt]

Julian: I made a similar comment in the message boards of our hometown newspaper a few days ago. I didn't get why the Court left it up to 50 states to define the legal term "public use," on which the relevant clause of the 5th Amendment depends! They certainly did not defer to the legislatures for definitions of "commerce" or "interstate commerce" in Raich, for example. It just makes no sense that Hawaii might define "public use," so as to eliminate private property entirely, while Montana might define "public use" in such a way that private property is held virtually inviolable. Yet for Constitutional purposes, the post-Kelo court would treat those diametrically opposed definitions as equal and simultaneously valid. If the Justices can't draw the line, then we need to get Congress to do it, but I fear that if and when we do, the line will be drawn more to the "no private property" side than the "private property is inviolable" side.

Davemac asks, "couldn't a city just tax people out of their homes?" Dave, they certainly could, and that is what California's Prop. 13 taxpayer revolt (and a contemporaneous wave of similar rebellion across the nation) was all about. One could argue that the restrictions on taxation and government funding that came in the wake of the Prop. 13 wave inspired governments to make more use of Eminent Domain, as a way to flip protected properties and increase both the tax base and the percentage take. Basically, when tax rebels managed to plug the property tax hole in various state reform efforts, they often forgot to plug the ED hole. The court has told us that we need to remedy those earlier oversights now.

RC Dean says, "She [O'Connor] may have been on the right side of Kelo, but she has been the worst kind of outcome-driven judge, and has generally come down on the side of mo betta bigga government. I say, good riddance, Sandra."

She was also on the right side of Raich, imho. One wonders if, having decided to retire, she elected to employ her intellect and vote in the service of "the right thing" in her last acts on the bench, rather than "the desired outcome." I have certainly seen opinions from her and Justice Thomas, too, which either froze my libertarian blood or got it boiling. But in Raich and Kelo, those two came together to argue eloquently and persuasively on the side of the angels. What's up with THAT? From some of O'Connor's earlier opinions, I was indeed very surprised to see her dissenting contributions in Raich and Kelo, but viewed as "parting shots," they make perfect sense.

[fcnolan]

Frankly, you ought to err to the side of boring us to death when it comes to SCOTUS decisions as big as Kelo.

[It's called Migration]

Does everyone but me believe that communities have a right to life? I don't understand why "prosperity" for a city or town is seen as an absolutely good thing in all circumstances. Call me harsh but sometimes towns must shrivel up and die. If the residents can afford to live there, want to continue living there, if it works on its own merits, great. If not, MOVE. It's called migration. It's natural.

Think of it as a nifty future ghost town.

[Eric the .5b]

I'm with you, Migration...

[tsiroth]

It's called Migration: I'm with you, but sheesh, if we can't even let farmers go bankrupt, who is going to let an entire town shrivel up and die if they can help it?

[Xrlq]

Actually, courts defer absolutely on a few constitutional requirements they consider "nonjusticiable," e.g., whether a Congresional vote authorizing force constitutes a declaration of war, or whether the allegations against an impeached official really constitute "high crimes and misdemeanors." I almost wish they'd done that in this case and in Raich. The end result would be the same, but the message sent could not be more different: "yes, this is constitutional" vs. "we're not going to tell you if it's constitutional or not."

[joe]

I don't know the answer to Julian's question.

I just wanted to say that, as a practicing planner, I don't like this broad deference standard.

If the mayor of a city tells a cop, for his own corrupt or political reasons, to go rough somebody up or arrest him, the cop can come back at him with "We can't do that, you're going to get us sued!" and insist on doing his job according to the "best practices" of law enforcement.

But if the mayor walks into my office and tells to put this statement in the plan, or include that property in the acquisition list, for his own corrupt or political reasons, I got nothing.

I'd be just fine with some kind of stricter scrutiny of what goes into plans, and how they get written.

[joe]

As for Migration, the "ghost town" paradigm may work for small boom towns that spring up quickly, but cities don't "shrivel up and die." They just get worse and worse and worse, and ruin the lives of more and more people, and act as a greater and greater drag on their region and on society as a whole, if they are allowed to go into freefall. A city can't just go out of business, have its assets sold off, and have its niche in the market taken over by competitors, like a corporation or a financial instrument. The concrete, geographic nature of a city makes it an extremely non-liquid asset.

You are making a mistake that happens a lot among libertarians when discussing land issues. A long time ago, somebody decided to use the word "property," that is "piece of land" to serve as the term for "owned thing with value." Then an entire field of study was created around how value operated and changed. Then people like you reify the metaphor, and treat actual real estate as if it can be fully understood as an example of an "owned thing with value."