Stevens: The Constitution Made Me Do It

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Supreme Court Justice John Paul Stevens feels bad about the outcomes of Raich and Kelo but says the Constitution compelled him to support the federal crackdown on medical marijuana in California and the wanton use of eminent domain in Connecticut, both of which he opposes as a matter of policy. Since growing marijuana in your yard for your own medical use is so plainly an element of interstate commerce and a hotel is so obviously a "public use" that justifies forcible property transfers, what choice did he have?

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  1. Now you’re complaining about judges who DON’T pick and choose to get the outcome they want?

    There’s no pleasing some people.

  2. Your word for today is: pellucidly

    Does anyone have a link to the actual memo?

    BTW, Jim Lindgren over at Volokh.com had an interesting post yesterday regard Justice Breyer’s new book.

  3. joe,

    I personally respect Stevens for standing firm on his interpretation despite the outcome. I just think his interpretation is shite.

  4. There’s no pleasing some people.

    Yet they keep coming back and posting in the comments section….

  5. This is your brain.
    This is your brain on Hit & Run.

  6. Now you’re complaining about judges who DON’T pick and choose to get the outcome they want?

    Where does the post say that? I think the implication is “could the judicial philosophy of JPS be any more idiotic?”

  7. K. Toishi,

    Right in the freakin’ title. Jacob’s post can easily be read joe’s way and your way.

  8. Right in the freakin’ title.

    Yeah, I took it as “my moronic belief in the ‘living /breathing constitution’ made me do it” which, to me, has nothing to do with picking/choosing outcomes.

  9. Er, joe, I think Jacob’s point is that Stevens’ claims regarding the outcomes of those cases are hardly plain, obvious readings of the text, and that one does, in fact, have to pick and choose to reach those non-obvious interpretations.

  10. That’s funny, I thought the “living, breathing Constitution” theory was just window dressing that removed all restrictions on judges’ discretion, and allowed them to rule however they wanted to achieve their desired outcomes.

  11. It is bullshit, bullshit, bullshit!

    Stevens is hiding behind the skirts of the Constitution. He is a chickenshit apologizing for lousy decisions by placing the blame on his duty to honor the constitution. Stevens wants a strong, invasive central government that usurps the power of the citizens. He is just blowing smoke about yielding to the will of the constitution. His interpretations of “public use” and “interstate commerce” are egregiously overreaching and abusive to the right of individuals to be left alone.

  12. That’s what’s “fun” about these discussions. If you like the guy, frequently you’ll have some sort of support for the “did it because/despite the constitution” or “am for/against ‘judicial activism'”.

    And this is for good-faith supporters, too! Just imagine the zero sum types!!!!!

    coffee, anyone? i’m buyin’.

  13. i think a lot of you have are having a really difficult time accepting that things must change. they do. the constitution does. *how* it changes is a matter of significant and healthy debate — but that it must is essential, if you want to live in a society that isn’t an ossified dead shell.

    this impulse behind a lot of backers of originalism — this desire to climb back into a womb that never existed — is understandable, given the dysfunction of the western world in decadence. but blatant archaism is not an answer.

  14. Now you’re complaining about judges who DON’T pick and choose to get the outcome they want?

    Joe, baby, do you actually read the posts before you comment? Or do you just do a quick gloss-over and hope that your rash statement pans out?

    Lambasting a justice for claiming to be constrained by his utterly rediculous interpretations of the Constitution is not anywhere near the same as “complaining about judges who DON’T pick and choose to get the outcome they want?”

    Do you get it? Sullum isn’t complaining that Stevens is claiming to be constrained by the Constitution—he’s complaining that the interpretations that led to said constraints are absurd.

  15. coffee, anyone? i’m buyin’.

    yeah, i’ll have one, mr drf. 🙂

    He is a chickenshit apologizing for lousy decisions by placing the blame on his duty to honor the constitution.

    stevens has succumbed to a corruption of his sense of duty. his duty is not to an shell of administrative words — whatever his oath swore, as i’ve said ad nauseum the last few days here, the constitution has a wide variety of possible meanings, and he can choose among them to craft the application of law.

    his duty to the society he is a part of. and if he believes his decisions abdicate moral outcomes for technically precise ones — and that he is somehow compelled to that abdication — he is little better than scalia.

  16. Gaius: there’s a pretty substantial difference between strict originalism, and opposing rulings that are, by nearly all accounts, against both common sense and the spirit of the law.

    Simply because one opposes a few select rediculous interpretations does not make one an originalist…and I fail to see how any of the commenters here (or, as you say, “a lot of you”) are having “difficulty” with the constitution changing. I don’t see any posts above that could be reasonably construed as “originalist”. All they were pointing out, I think, is that the idea of a “Living, Breathing Constitution” is commonly used by judges to justify any interpretation they want. This isn’t originalism.

    Methinks that that’s a mighty strawman you’ve got there.

  17. This is perfectly reasonable.
    Let me interpret for you wacky anarchists:

    Public use: A duly elected official decides to do something. Since they represent the people, anything they do is by definition public use.

    So if a politician does it or wants it, it’s automatically a public use.

    Commerce: If it’s economic in nature, it’s commerce. If it involves humans in some way, it’s economic.

    Obviously this means the government can regulate anything.

    Upshot: The government can prohibit you from growing certain plants, but if the cops catch you with them they can take them for “public use”.

  18. Stevens genuinely believes the outcomes resulting from his decisions are bad. But his “sticking to process” is not a result of loyalty to the Constitution, but to exactly the kind of outcomes-based reasoning that he claims to have avoided.

    Specifically, he knows that if the Commerce Clause power is ruled not to cover in-state, privately-grown and consumed MJ, then many of the other expansions of federal power of the past century are at risk. The outcome of preserving those expansions is too important to him, reasonable-interpretation-of-the-Constitution be damned.

  19. Hey Gaius!

    How is daddy life?

    Is it time for mass congratulations and well wishes?

    We’re all thinking of you!

    cheers,
    drf

  20. Galius:

    Except that the constitution doesn’t allow congress to regulate “commerce”, per se—only INTERSTATE commerce. One could make the specious argument that growing a tomato plant in your backyard effects interstate commerce because it makes you less likely to buy a tomato plant from another state.

    But intrastate commerce itself is not open to regulation by congress.

  21. Let’s put aside whether the Constitution is or is not a living, breathing document.

    Most of us would agree that the dictionary of our language is living, breathing, constantly changing.

    As long as you allow the meanings of words to change, the Constitution can mean whatever you want it to mean.

    But a gun always means what it says.

  22. mr. marius, I think you are having a difficult time accepting that the application of the Constitution to modern life does not require redifining it. Your response to thoreau yesterday was telling. You commended him for seeing that there are limits to the rational interpretation of various words/phrases in the constitution, yet to consistently refuse to offer up a way of evaluating if an interpretation is rational and just to begin with.

    If the Constitution does not fit properly into your social vision, then amend it. Don’t offer up some rewrite that molds to your requirements. That’s how you end up getting into messes such as Social Security and the Drug War, both concepts in which people with a vision of what the goverment should do created unsustainable arguments (of course, IMHO) about how the Constitution justifies those power grabs. There are plenty of Constitutional provisions I don’t like, such as the Post Office or that the 2nd amendment allows for individuals to possess WMDs (which will now brand me as a loony to most people, but at least it is a logically consistent stance). But you know what? Tough. If I want those things to change, then I’d best start a movement to get the document changed.

  23. reasonable-interpretation-of-the-Constitution be damned.

    too malicious to be true, mr cjp. stevens is an intellectual, and reason matters everything to him.

    Simply because one opposes a few select rediculous interpretations does not make one an originalist

    i agree, mr williams.

    All they were pointing out, I think, is that the idea of a “Living, Breathing Constitution” is commonly used by judges to justify any interpretation they want. This isn’t originalism.

    your choices, it seems to me, are a living constitution — or a dead letter.

    that’s no choice at all. the subsequent argument must be about how it lives and changes. i am all for many of the prudent limitations that we often discuss here, and even for respecting some archaic clauses that have gone out of use.

    what i am not for is putting beyond the purview of the court the job of interfacing the abstract and simple document with a particular and complex world. they MUST do this, because the other two branches — being now the instruments of mob rule, with only the teetering exception of the senate — would sooner burn the document and all restrictions on a rousseauian dictatorship with it.

  24. thanks, mr drf — but not yet. any minute now. 🙂

  25. I’d also “feel bad” if I were as stupid as most of the government lawyers who make up what we incorrectly call the Supreme Court.

  26. gaius, “his duty to the society he is a part of.”

    Maintaining this republic as a nation of laws, not of men, is the highest duty a Supreme Court justice has to his society. The consequences of a Supreme Court that acts with no constraint beyond a desire to achieve its preferred outcome in each case would be terrible for our society.

    Sometimes, when you’re a Marine, you have to jam your bayonette into the guts of a 17 year old conscript. Sometimes, when you’re a judge, you have to rule in a way that hurts somebody who doesn’t deserve it. Duty is a terrible thing.

  27. If the courts interpreted the 1st Amendment as broadly as they interpret the commerce clause, they would have ruled in favor of Raich because being denied THC would have prevented her from being able to concentrate on what she reads, which would lower demand for newspapers, which remain in existance by exercising rights under the Free Press Clause.
    The Just Compensation Clause does prohibit taking private property for private use. Just compensation for such a taking would have to take into account the value of the condemned property after it’s been transferred to the new owner. The pretext for these takings is increasing tax revenue, but actual just compensation would make the costs of such takings would make them unprofitable for the government.

  28. I think you are having a difficult time accepting that the application of the Constitution to modern life does not require redifining it.

    that would be because it really does require redefining it — with every new ruling. nothing is truly static, mr mp. heraclitus is pertinent here. it’s how we guide the change that is important.

    yet to consistently refuse to offer up a way of evaluating if an interpretation is rational and just to begin with.

    to the contrary, mr mp — i say that such is the purpose of the supreme court.

    Social Security and the Drug War

    i agree — i don’t like a lot of what our management has done to the place.

    that does not mean climbing back into the womb is possible. the past is irretrievable, and trying to go back is immensely more damaging that grasping the present and carefully going forward.

  29. Would this be the appropriate time for Stevens, per his reasoning, let a little Constitutional milk dribble on to his bib to save the American Pie (which, presumably, will make it to the bib shortly?)

    churlishly,
    drf

  30. The consequences of a Supreme Court that acts with no constraint beyond a desire to achieve its preferred outcome in each case would be terrible for our society.

    would you say, mr joe, that the only law that should guide the court is that which is scratched out on that parchment?

    or would you agree with me that there are other codes of law — and not only other national codes, but moral and religious and traditional codes — from which the authority of law must be drawn in application in order to be anything more than a hollow shell unworthy of obedience?

  31. Duty is a terrible thing.

    That’s why it’s for morons.

  32. I would agree with that, gaius. My point is that taking all of those things into account does not give a judge unlimited discretion to rule for the saddest-eyed puppy.

  33. My point is that taking all of those things into account does not give a judge unlimited discretion to rule for the saddest-eyed puppy.

    concur. duty can be terrible and necessary, whatever the escapists and anarchists wish to think. abraham, after all, was ready to sacrifice isaac.

  34. gaius-

    I have been away for a couple weeks – did you and mrs marius give birth to gaius minimus while I was away?

    I believe you and Evan have pellucidly summed up Jacob Sullum’s viewpoint. I’d like to add that Stevens and Scalia are shitheads. They have their own vision of the world and willingly reinforce the control of the ruling class. I agree with you that “originalism” is another refuge for people to justify flawed judgements.

    I’ll go one step further – and say that our existing constitution is outdated and terribly flawed. It should be rewritten to simplify government and tightly circumbscribe the power of the government. Any authority that is not expressly allowed by the constitution would be forbidden to any layer of government. The constitution should be written to prevent misunderstanding and it should require a bare minimum of interpretation. A good constitution does not need to “live and breathe” – it simply needs to be right.

  35. “They have their own vision of the world and willingly reinforce the control of the ruling class.”

    I can’t think of too many examples of Scalia ruling in a manner than was contrary to his own policy preferences, but if you had bothered to click on the link, you’d have noticed that Stevens was decrying the government’s policies on med pot and takings. When the judge goes out of his way to denounce a policy, and expresses regret that he is compelled to uphold it, it kind of takes the wind out of the sails of the “his own vision of the world” argument.

  36. 1. I tried to find a copy of Stephens’ address, which has yet to be published on SCOTUS’ website. NYT has a story with choice quotes from the speech, but it doesn’t appear to have a copy either. Here’s the link.

    2. Playing the martyr, playing the fool: Justice Stephens’ self-proclaimed constitutional martyrdom reminds me of the ship captain’s justification for executing Billy Budd in Herman Melville’s famous short story: “Is it ignorance or is it irony?” In that story, a ship captain feels compelled to execute a deckhand who murders an officer after the officer maliciously and falsely accuses him of wrongdoing. The shiphand’s response is to kill the officer. The captain, fearing that any punishment short of execution will be seen as undermining his authority, orders Billy Budd’s execution. The captain’s fear is quite overblown, but he pulls the trigger anyhow. The story raises precisely the questions Stephens’ position does: Duty to what, and for whose benefit? The law doesn’t exist like some Platonic form for its own self. It exists for “We the People”. Any other view is legal idolatry.

    3. Shades of Dred Scott, shades of Germany: SCOTUS upheld the law of slavery and (arguably) prompted the civil war. Legal academics continue to ponder whether or not Nazis had law, given that their legal system sanctioned genocide. One wonders if Justice Stevens, were he faced with upholding the legality of either slavery or genocide, would stand up for law in the face of principle. As an upholder of Roe v. Wade, which is premised upon an extremely tortured iterpretation of the Bill of Rights (“penumbras”), it seems he would likely derive some linguistic trick to avoid doing so while upholding “the law” .

    3. What the Constitution permits: As other posters have asked, what’s Stephens’ hermeneutical strategy? If he doesn’t look at history (arguing that the Founders would approve of Kelo seems utterly preposterous, especially since they conditioned voting rights on real property ownership), he seems left to a kind of linguistic postmodernism cabined only by opportunistic references to stare decisis, ideology and whatever other phantoms he chooses (or feels compelled by).

  37. Clarence Thomas said the same thing about Lawrence. He personally thought sodomy laws were “silly”, but the Constitution clearly gives states the power to regulate what sex acts you can perform in your home.

  38. First, you have to believe that Justice Stevens really doesn’t want the federal government to have expansive powers to regulate commerce, and really doesn’t want municipalities to have expansive powers to seize property.

    Frankly, I don’t believe that for a minute.

    So the rest of his crocodile tears about what the Constitution made him do are just absurd.

  39. that would be because it really does require redefining it — with every new ruling. nothing is truly static, mr mp.

    Define “static”. Is saying that “Interstate Commerce” = “Economic Transactions That Cross State Lines” static? Is saying that “Public Use” = “Intended for the specific use of the government or the public at large” static? Is saying that “General Welfare” “Anything that might possibly make someone, somewhere, happier” static?

    The concept of Original Meaning is rooted in establishing a fixed set of guidelines. The scope of those guidelines is constantly being more explicitly defined based on cases viewed by SCOTUS. But SCOTUS’s job is to say “yes, this specific event/action/instance fits within the guidelines established”. They have no right to expand those guidelines. They have no duty to expand those guidelines simply to maintain your social order. Expanding the guidelines with the purpose of obtaining a preferred results undermines the integrity of the guidelines and makes them unjust and pointless.

    I have no problem with SCOTUS discovering new Natural Rights, using the Ninth. I have no problem with SCOTUS saying that land grabbed for a National Park is Public Use while a Pfizer campus is not. I have no problem with SCOTUS saying that a state can ban alcohol, but cannot ban alcohol just from other states. All of these things expand our understanding of what the government can and cannot do. The Constitution allows for plenty of breathing room. It should not, however, be used simply as wallpaper.

    I agree that there are severe consequences to “unwinding” the precedents that we have in place, and doing that must be done with care to preserve some sort of integrity of law. But that doesn’t mean it shouldn’t be done.

  40. Sorry… “General Welfare” NOT EQUAL TO “Anything…”

  41. did you and mrs marius give birth to gaius minimus while I was away?

    nope — my phone awaits the joyful call to run to the hospital. 🙂 if my arguments are even less coherent than normal this week, anticipation is the cause.

  42. joe,

    You completely missed the point of my earlier post. Stevens pretends to abhor the SCOTUS decisions on pot and ED. He blames his personal support of these rulings on his duty to honor the constitution. I say he is lying to us. He supports these policies because they fit into “his own vision of the world”. He is using the constitution as a beard, a fall guy, a straw man.

    This motherfucker and his running buddies want to control your world. They want you to answer to them, to send them your hard-earned money because they think they can spend it wiser than you. Would you put it past them to bend the truth a little to maintain their power? Stevens has to prop up his faux appearance as a fair judge and a martyr to the constitution. If he laid out his true feelings and agenda he might provoke the bongheads and libertarians into doing something about it.

  43. pellucidly

    excellent!

    our existing constitution is outdated and terribly flawed. It should be rewritten to simplify government and tightly circumbscribe the power of the government.

    unfortunately, mr crushinator, i think the period of even marginal moral creativity has largely passed us. what we’re likely to see henceforth are bureaucratic efforts like those of augustus in building the empire — efforts which seem to be archaistic, superficially reviving dead notions of society, but which mask what is essentially nothing more than revolutionism. augustus, after all, didn’t recreate the roman republic of cincinnatus — he built the roman empire of tiberius, caligula and nero.

    to my eyes, neoconservatism and originalism are facets of the same underlying social urge — a wolf of lawless revolution covered in the sheepskin of sentimentality for better times that we can’t return to.

  44. It takes some big nuts to accuse Stevens of being a liar. I refuse to do that. I don’t understand how a person employing logic can come to the intepretation that he does, but I don’t doubt his integrity.

  45. Frankly, I don’t believe that for a minute.

    mr dean, you often seem incapable of seeing anything but malice in those who you disagree with.

  46. “Is saying that “Public Use” = “Intended for the specific use of the government or the public at large” static?”

    That one, at least, is easy. Such a statement would not be static because it would be a novel interpretation of the Fifth Amendment, at odds with its original interpretation.

    The success of the Kelo propaganda campaign has been astounding – you have ferocious, principled originalists defending, on originalist grounds, a reading of the Constitution that has never in American history been adopted by the Supreme Court, and which was not in place at the time of the ratification.

  47. Crushinator,

    “He blames his personal support of these rulings on his duty to honor the constitution. I say he is lying to us.” Based on what? Do you have any evidence at all of his policy preferences in either area? Or are you just assuming that he HAS to be lying, because you don’t like the rulings and want to impugn his character?

    “If he laid out his true feelings and agenda he might provoke the bongheads and libertarians into doing something about it.” Yeah, I’m sure he’s soiling his robes just thinking about it. NORML and the LP together – what’s a mere lifetime appointment to the SCOTUS in the face of that?

  48. you have ferocious, principled originalists defending, on originalist grounds, a reading of the Constitution that has never in American history been adopted by the Supreme Court, and which was not in place at the time of the ratification.

    as we’ve said, mr joe, originalism isn’t about going back.

  49. MP,

    Small edit: the Kelo case was not about Pfizer’s campus. Pfizer’s campus is on an adjacent parcel, Pfizer is uninvolved in the urban renewal plan for the Fort Trumball neighborhood, and none of the takings in the Kelo case involved land for Pfizer’s campus. New London drew up this plan to take advantage of what Pfizer was doing on their own.

    Geez, I’ve defended John Roberts and a multinational drug company in the same day. Somebody get me a scotch, a smoking jacket, and an obedient wife.

  50. Such a statement would not be static because it would be a novel interpretation of the Fifth Amendment, at odds with its original interpretation.

    Care to come up with another example beyond the Mill Acts? The Mill Acts allowed a privately run business to setup a retail storefront to serve the public at large. That is totally consistent with an Original Meaning view.

    I find your statement lacking in substance.

  51. I don’t think Mr. Stevens is a liar, but I do think he wasn’t completely truthful either.

    My belief is that although he really did disagree with the consequences of Kelo and Raich it wasn’t merely that he was following the Constitution that led him to vote the way he did, it was his belief in the the expanded interpretation of the Commerce Clause and the expanded defintion of “public use” compelled him to rule the way he did. IMHO, the reality is not that the “constitution made me do it” but rather “the latest piss poor interpretations of the constitution that I have had a hand in defining made me do it”

    I believe he is taking the position (as many liberals have taken) that it was more important to keep those expanded powers despite a few instances of not so great outcome, in order to keep the door closed on other suits trying to limit the regulatory power of the government or roll back other regulations.

    Sadly, I think this kind of thinking is wrong-headed and dangerous. But at least he does seem to be consistent, wrong, but consistent in his exapanded powers interpretations.

  52. MP,

    Not even Thomas claims that the “public use” justification for Mill Acts takings was based on the physical presence of the public to the land. Which stands to reaason, since the land that was taken was underwater! The “retail storefront” you speak of was not on taken land – ergo, the statement that public access to the taken land was the criteria is false.

    Instead, the public use justification was based on two planks – the legislature’s determination that the operation of mills served a public purpose (as can be seen by the application of the Mill Acts to land taken for mill ponds that powered textile and paper mills, which the public never enterred or used), and the regulation of the mill in the public interest.

    Now, put up or shut up: do you want to go on the record as arguing that the hotels, condo buildings, restaurants, and storefronts in the new Fort Trumbull neighborhood aren’t going to be regulated in the public interest? Let’s see, before a shovel is put into the ground, they are subject to the Building Code, the Zoning Bylaw, the Wetlands Act…

  53. Chicago Tom, “expanded definition” is incorrect.

    “Broad definition” would be better, as it would not suggest a change that never occurred.

  54. no, “expanded” is correct. change has occurred. somewhere along the line we decided to not take the constitution “literally”.

  55. joe,

    I disagree, I dont believe that since the day the constitution was drafted that such a broad standard was applied, hence it has been EXPANDED by the courts throughout time

  56. joe, for the umpteenth time, “public use” is is not “public interest”. Simply because the government has some oversight ability does not imply that the application of the taking is for “public use”.

    The mills acted as storefronts. They allowed farmers to bring in grain for processing. The mills required hydro power, thus requiring land to be flooded. However, the lands taken were directly related to the use of the lands as providing a storefront. The lands are being used by the mill to operate a storefront that is open to the public. With the land, there is no storefront.

    There was great debate about the takings for powered textile and paper mills. There are precedents on both sides. SCOTUS rarely addressed this because it was a state level issue. Thus, the Federal Constitutionality was rarely questioned.

  57. Yes, but not in regards to the “public use” language. The formulation “use = occupation or ownership” has never been the standard.

  58. ‘joe, for the umpteenth time, “public use” is is not “public interest”. Simply because the government has some oversight ability does not imply that the application of the taking is for “public use”.’

    Take it up with the Founders, then, because it’s their definition you’ve got a problem with. Maybe “a public use is one that advances a public purpose” isn’t the definition you’d like, but it is the original one.

    Read Thomas’s dissent if you don’t believe me. The physical presence of the public in the grist mills is only referenced in regards to that being the public purpose to be served. He also goes into the assumption that a corporation was, by definition, serving the public interest, and certainly, not all corporations had operations that involved the public walking into the building.

  59. From Thomas’s dissent:

    “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.”

    USE

    Thomas goes on to say:

    “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.”

    Meaning that the fact that the Mill Acts were later extended to cover items such as textile and paper mills does not provide any useful guidance as to the orginal meaning of Public Use.

    And finally, his discussion of Corporations relates how a Corporation at the time of the founding was a relatively new concept that appeared to derive its authority directly from the state. Thus, it was considered to be a puppet of the state and hence a public entity. It was not considered to be the independent private entity that it is commonly thought of as being today.

  60. ?were REGULATED BY LAW and compelled to serve the public for a stipulated toll and in regular order,?

    He then goes on to discuss the fact that corporations served the public interest, based on a grant from the state.

    All the tight edits in the world can’t save you from the fact that there is a common thread between these two, and that the thread is not “public access” or “public ownership,” but “public purpose.”

  61. The Constitution has a means of changing: amendments. Changing it by reinterpreting it to achieve desired outcomes is plainly wrong.

    JPS wasn’t compelled by the Constitution to reach the Kelo decision. Rather, he was compelled by a need to maintain the standard leftist interpretation that enables the welfare/fascist state we live in today.

  62. ChicagoTom gets it dead right:

    My belief is that although he really did disagree with the consequences of Kelo and Raich it wasn’t merely that he was following the Constitution that led him to vote the way he did, it was his belief in the the expanded interpretation of the Commerce Clause and the expanded defintion of “public use” compelled him to rule the way he did. IMHO, the reality is not that the “constitution made me do it” but rather “the latest piss poor interpretations of the constitution that I have had a hand in defining made me do it”

    I believe he is taking the position (as many liberals have taken) that it was more important to keep those expanded powers despite a few instances of not so great outcome, in order to keep the door closed on other suits trying to limit the regulatory power of the government or roll back other regulations.

  63. “regulated by law AND compelled to serve”

    All the selective highlighting will not save you from ignoring the use requirement.

    And the quote from Horwitz says “service to the public” not “public interest”. i.e. they were setup to do something specific for the public, not do something that was in some way beneficial to the public.

    The common thread is Use not Purpose.

  64. And by “tight edits,” MP, I’m referring to such tricks as (wrongly) characterizing Thomas’s words, rather than quoting them. For example, you say that the “public” nature of corporations was reflective of their chartering by the state, while Thomas says, “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.”

    Their raison d’etre was their service to the public – this is why land could be taken on their behalf. Because they served the public – including those corporations that didn’t actually allow the public onto their land. None of this has to do with the state. They didn’t become advancers of the public interest because they were chartered by the state. They were chartered by the state because they (were assumed to) advance public interests.

    BTW, the “beginning to upset the old corporate model” language demonstrates that corporations were not a new phenomonenon.

  65. joe-

    Aliens placed a pod under your bed. It absorbed your human form while you were sleeping. You are now one of “THEM”.

    A warning to all of those readers who have not yet succumbed to the pods – YOU’RE NEXT. THEY ARE COMING FOR YOU!

    If Stevens was not lying, then why did he claim to be constrained by policies that are not even contained in the constitution? If he truly believed that the Kelo and Raich decisions were wrong he could have come up with a plausible dissent. As the SCOTUS has taught us, there is a lot of wiggle room available for everyone to exploit. If Stevens is not lying outright, then as a minimum he is deceptive and disingenuous. His rhetorical legerdemain is an insult to our intelligence.

  66. “And the quote from Horwitz says “service to the public” not “public interest”. i.e. they were setup to do something specific for the public, not do something that was in some way beneficial to the public.”

    No, this interpretation is wrong. Corporations that didn’t even have dealings with the public – the 18th century version of B2B – were still chartered by the state, because their operations and dealings were considered to advance the public’s interest.

    Whorehouses, like grist mills, served the public during that period, too. Yet they were neither chartered by the state, nor was land even taken by eminent domain to further their operations. Why? Because a grist mill was considered to promote a public purpose, and a whorehouse was not.

  67. Now that’s an indefensible position! I mean, would you rather live next to a whorehouse or a grist mill? I don’t even know what “grist” is, but I’ll take the hookers.

  68. Crushinator,

    “If Stevens was not lying, then why did he claim to be constrained by policies that are not even contained in the constitution?” Because fidelity to the Constitution requires fidelity to the evolving body of law based on the Constitution as well.

    And because adhering to the Constitution requires fidelity to the spirit of the law, not merely its letter. When the letter is inadequate to apply to a case, fidelity to the Constitution requires a review of past applications of that letter to discern how to apply the principles therein.

    I don’t want justices to be constrained by the question “Can I come up with something plausible on which to base my ruling in favor of the party I want to win?” I want them to be constrained by the question, “What does the Constitution say about this?”

  69. Their raison d’etre was their service to the public – this is why land could be taken on their behalf.

    No. The point about Corporations is made to support the idea that, even though we now think of a Corporation as being a private entity (i.e. a business corporation), at the time it was more commonly thought of as a legal arrangement setup to provide a service to the public. However, Thomas never says that that is exclusively the justication needed to exercise ED. This statement is simply made to help readers understand how a Corporation was really though of as an extension of Government back in the 1700’s, and was thus a Public Entity. This, COMBINED with the fact that this entity was performing a taking for Use by the people, is what classified the taking as justified Public Use.

    Notice how he concludes the cite you quoted:

    “to think of mills as inherently public entities.”

    Mills, not Corporations.

  70. “This statement is simply made to help readers understand how a Corporation was really though of as an extension of Government back in the 1700’s, and was thus a Public Entity.” Yes, exactly. You aren’t contradicting me, you’re seconding me.

    Corporations were considered to be, as you say, “an extension of the government.” Now, why was this so? What made them extensions of the government, and thus appropriate recipients of ED’ed land? Because of their “service to the public” – service which, contra your earlier statements, had nothing to do with the physical occupation of their facilities by the public, or even their doing business with the general public (many did not). No, what made their operations “service to the public” was that they were (considered to be) advancing the public purpose of providing jobs and economic growth.

    When this ceased to be their raison d’etre, when the old corporate order was finally upset, they ceased to be appropriate recipients of land from eminent domain. No change in their openness to public occupation. No change in their level of transactions with the general public. The change, the upsetting of the old order, was the change in practices and perceptions (aha! I caught Thomas arguing one of the foundations of the Living Constitution!) that led them to be seen not as primarily advancing a public interest, but a private one.

  71. joe, I gotta say, so many of us have crossed swords with you over Kelo at one time or another, I’m mystified why you continue the fight.

    I gave up because, well, for starters I realized that neither one of us was going to change the other’s mind. I’ve established for myself where we differ: I think the ruling rendered “public use” meaningless in practice, you think it still has practical meaning and can continue to serve as an effective check in certain cases. I don’t want to refight that battle right now, I’m just saying that I stopped once I’d identified the irreconcilable lynchpin of the disagreement.

    So, why do you keep coming back for more on this? Yeah, I know, you think they’re wrong. Well, I think lots of people are wrong on certain things but I pick my battles. I’m mystified why you continue this battle so adamantly. Are you involved in ED situations affected by Kelo? (And yes, I know, you claim that Kelo basically upheld the status quo rather than set new precedents, so maybe I should ask if you’re involved in ED situations that would have been changed if the case had been decided differently.)

    And I should pose the same question to everybody else: I think we all know where joe stands on Kelo, and he’s not yielded to any of the many lines of attack that different people have thrown at him. He’s either right or he’s the stubbornest SOB on this forum. Why subject yourselves to that?

    Yeah, I know, arguing is fun, that’s why we all come here. But even when we beat the topic of Iraq to death there’s usually some new development to prompt it (what bearing does the latest news have on the bigger issue?). With joe and Kelo it’s just “Wrongly decided!” “No it wasn’t!” “Yes it was!” “Was not!” “Was too!”

    Anyway, have fun!

  72. No, no purely economic development takings here. I don’t think they’re legal in Massachusetts.

    I guess I stick it our because I have an aversion to dishonesty, and the issue is so consistently treated with such dishonesty.

    Not by you, MP, you’re clearly arguing from principle.

  73. joe-

    Sorry about the pod comment – excessive dose of caffiene this morning.

    I grant you the point regarding fidelity to the evolution of the law. That is the key duty of a supreme court justice.

    I want use this requirement to illustrate the fundamental flaw of the constitution – it is subject to far too much evolution. It should define the role of government and apply strict limitations to the power of gevernment. It should be written as to not require constant interpretation and the resulting evolution. Advances in technology and other societal developments should be accommodated by thoughtful, deliberate amendments. The constitution should be protected from perversion by judges, administrators, and legislators.

  74. thoreau, I continue the debate for three reasons:

    1) The detailed analysis of SCOTUS decisions facinates me, particularly because of the incredible influence that these decisions have on our country. It’s one thing to see a headline stating the consequences of a decision. It is quite another to try and get into the heads of the people making the decision.

    2) The best way in which I can better refine my understanding of my own beliefs and the world around me is to discuss things with other people who have also given a lot of thought to their lives. In particular, it is most helpful to butt heads with people who hold contrary positions, as it allows me to further refine or revise my opinions, and feel more confident in my understanding of things as a result of that.

    3) I’m particularly passionate about ED, so coming to a better understanding of the issue is of key importance to me.

    Thus, when joe, gaius, gary, you, or anyone are willing to invest time in arguing their positions, and if I have the time to respond, I will in the name of perspicacity.

  75. So to continue…

    Corporations were considered to be, as you say, “an extension of the government.” Now, why was this so? What made them extensions of the government, and thus appropriate recipients of ED’ed land? Because of their “service to the public”

    No. Because they derived their authority from and were (more or less) directly controlled by the Government. Old school corporations were Government+. Now, a taking done by a Government entity is for Public Use by definition, since the Government is a direct extension to the public. That’s why military bases, which are not open to the public, are still Public Use.

    (NOTE: I do recognize that this is somewhat different than the “COMBINED” argument I made earlier, so please don’t jump on that contradiction. I recognize it. The thread suffers from thinking on the fly.)

  76. From the wikipedia article on eminent domain:

    “The reason of originally granting out this complicated kind of interest, so that the same man shall, with regard to the same land, be at one and the same time tenant in fee-simple and also tenant at the lord’s will, seems to have arisen from the nature of villenage tenure…. Though they were willing to enlarge the interest of their villeins, by granting them estates which might endure for their lives, or sometimes by descendible to their issue, yet did not care to manumit them entirely; and for that reason it seems to have been contrived, that a power of resumption at the will of the lord, should be annexed to these grants, whereby the tenants were still kept in a state of villenage, and no freehold at all was conveyed to them in their respective lands.” (italics added)

    http://en.wikipedia.org/wiki/Eminent_domain

    That’s the old definition – maybe it’s time for a new one.

  77. anyone ever read the archaic revival by terrence mckenna?

  78. I say we take Stevens house by eminent domain, and smoke pot in the front yard.

    There really is no constitution in America. As long as the constitution agrees with the policy objectives of those in power (Dems, Repubs, Supreme Court, etc) then it is “the supreme law of the land”. The moment the constitution is counter to these groups policy objectives then it is simply ignored (second amendment, commerce claus), or tortured into a ridiculous interpretation (second amendment, commerce clause).

  79. Old school corporations were Government+.

    i have to say, mr mp, that, in kelo, what is new london development corp if not Government+?

    i think mr joe has made the case very, very well here — and has certainly put beyond a doubt that kelo is not the black-and-white “wrong” decision that many here want to believe it is.

  80. archaic revival by terrence mckenna?

    no, but in reading a review just now, it sounds like he has a lot in common with originalists, neoconservatives, and much of the environmental movement. interesting, mr bonkstaff.

  81. gaius,

    NLDC may be a quasi-governmental corporate entity, but it has a limited lifespan based on the time required to procure the land via ED and hand it over to a private owner. Since it does not exist to act as the long term manager of the land, it is disqualified from being able to exercise a taking solely on the grounds that it is a government body. Thus, the elevated standard of Use comes into play.

  82. I think the issue is whether Stevens is faithfully serving the Constitution, as he says, or whether he is maximizing federal power and then blaming the Constitution if the policy results are yucky. One might characterize Stevens as having internal indicia of credibility on this because he upheld some laws he considers unwise. However, if his real & abiding prejudice is expanded gov’t power, he has done nothing in Kelo or Raich against this suspected (by me anyway) prejudice.

    The day he says “I don’t like it, but every inmate at Gitmo walks because the fed gov’t isn’t empowered do a kangaroo court and they keep doing that,” that is the day I will begin seeing Stevens’ integrity on this kind of stuff.

  83. Joe, if you’re still following this:

    fidelity to the Constitution requires fidelity to the evolving body of law based on the Constitution as well….When the letter is inadequate to apply to a case, fidelity to the Constitution requires a review of past applications of that letter to discern how to apply the principles therein…I don’t want justices to be constrained by the question “Can I come up with something plausible on which to base my ruling in favor of the party I want to win?” I want them to be constrained by the question, “What does the Constitution say about this?”

    If “fidelity to the Constitution requires fidelity to the evolving body of law based on the Constitution”, how could they have decided Brown v. Board of Education as they did? How could the USSC show fidelity to the constitution by overturning any law that wasn’t brand-new?

  84. Eric’s got it. Of course, judges have should show some fidelity to past decisions (lower court judges are bound by them), but fidelity to the Constitution must come first. If a judge thinks past decisions are at odds with the Constitution, it’s his duty to reverse them.

  85. The day he says “I don’t like it, but every inmate at Gitmo walks because the fed gov’t isn’t empowered do a kangaroo court and they keep doing that,” that is the day I will begin seeing Stevens’ integrity on this kind of stuff.

    Agreed.

  86. To persipacacity! clink

  87. “No. Because they derived their authority from and were (more or less) directly controlled by the Government.”

    Bravo, MP! I’ve tangled with some very skilled, knowledgeable libertarians about this, and you are the first one to venture into Thomas’s “regulated for the public good = public use” reasoning! Already, that makes this the best debate I’ve had about it since the case came up.

  88. And a thread doesn’t “suffer” from thinking on the fly.

    A thread is enriched by thinking on the fly.

  89. Now you’re complaining about judges who DON’T pick and choose to get the outcome they want?

    I contend that he DID pick and choose the outcomes he wanted. He’s favors the power of the state over the power of individuals. He decided homegrown products for personal use are interstate commerce, and then decides that eminent domain which is addressed in the constitution is really a state issue.

    Maybe now he’s regretting his “when in doubt, favor the state” approach. And we get the usual Nuremburg defense for it, too.

  90. Pullin’ a Gunnels here…

    I like the formulation Government+, because it perfectly captures the legal status of a private entity, like an old school corporation or grist mill, that is an appropriate recipient of eminent domain powers.

    However, I have to ask about this assertion:

    “NLDC may be a quasi-governmental corporate entity, but it has a limited lifespan based on the time required to procure the land via ED and hand it over to a private owner. Since it does not exist to act as the long term manager of the land, it is disqualified from being able to exercise a taking solely on the grounds that it is a government body.”

    MP, did you just pull the doctrine of Government+ Temporality out of your butt?

    Now, to sit back and groove on the big picture, don’t the regulations imposed on modern developers businessowners, and property owners in general make them a sort of Government+? Isn’t that, in fact, one of the fundamental libertarian precepts about government regulation? Isn’t that, ultimately, the justification given for Independence Era Mill Act takings?

    Doesn’t “they serve the public good” seem like a more plausible explanation than “public access” to explain a for profit business? I mean, a Sunoco Mart doesn’t become my use when I walk inside.

  91. joe, is there any reason you can think of why a city couldn’t condemn anyone’s house, raze it and hand the land to either the Republican or Democratic national committee? Because, you see, the committees serve a public purpose: coordinating and facilitating local and national elections, a core aspect of self-governance. Therefore they benefit the public.

  92. Pullin’ a Gunnels here…

    Be careful, you can go blind that way.

    Goverment+ sounds like the newspeak term for “crony capitalism”.

    And who says Independence Era Mill Act takings were libertarian? They just go to show that people were trying to game the system as soon as it was in place, and that phony rationalizations are nothing new.

  93. I don’t think the “public use” test really has any teeth after Kelo, and I am cool with that.

    However, I also think just compensation, in the context of a strictly economic taking, means whatever the holdout could have held out for on the open market. I consider Kelo to be a strictly economic taking. I think SCOTUS has screwed up just compensation, not public use.

  94. did you just pull the doctrine of Government+ Temporality out of your butt?
    Not really. SCOTUS does constructions like this all the time. i.e. X=Y only if conditions A,B, & C exists. Simply saying X=Y is not sufficient. The construction I present defining the NLDC as non-governmental entity when it comes to Public Use is legitimate.

    Now, to sit back and groove on the big picture, don’t the regulations imposed on modern developers businessowners, and property owners in general make them a sort of Government+?
    Only if you take the extremist point of view that property rights are derived from the government, instead of from contractual agreements between citizens.

    Isn’t that, in fact, one of the fundamental libertarian precepts about government regulation?
    Nope. See above.

    Isn’t that, ultimately, the justification given for Independence Era Mill Act takings?
    Nope. The justifaction for the Mill’s developed under the Independence Era Mill Acts was the storefront they provided to the general public. Because this storefront was publicly accessible, it was considered a Public Use. The fact that corporations (as defined then) were setup as the householders of these mills reinforces the Public nature of the Use.

    Doesn’t “they serve the public good” seem like a more plausible explanation than “public access” to explain a for profit business?
    Nope. Public Use, or For the Use of and by the Public, is a much more tangible, and thus applicable standard.

    I mean, a Sunoco Mart doesn’t become my use when I walk inside.
    It wasn’t built for your use. It was built for everyone’s use. An instance of you exercising that use does not appear to be a situation relative to the concept of (and thus the argument surrounding) Public Use.

  95. I don’t think the “public use” test really has any teeth after Kelo, and I am cool with that.

    Everything up to the comma summarizes my primary objection to Kelo. Almost anything can be rationalized as improving the neighborhood in some way.

  96. Thoreau,
    1. The one that I wish had some teeth was “interstate commerce” (esp the commerce part!).
    2. Thanks for comments resolving the paternity test issues (at least for me) on the other thread — it has taken me 24 hr, but I am with you on that now.

  97. I mean, a Sunoco Mart doesn’t become my use when I walk inside.
    BTW, just a reminder regarding the “three part test” you elucidated here, which I pretty much agree with. This covers Sunoco Mart, the Mill Acts, and everything in Thomas’s dissent. Your original “three part” wording:

    “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.”

  98. the “three part test” you elucidated

    I agree, that’s actually pretty good. It’s certainly superior to most of the multiprong tests in court cases. However, I’d limit #3 to services that by their nature must be located at that place, or at some similarly restricted location. FOr example, in the 18th century a “mill” generally had to be on a river where certain other conditions were met. A shop did not; it could be almost anywhere. Thus, no ED for shops. This test seems to me closer to the traditional concept of ED as it was permitted in the 5th Amendment.

  99. Dave W-

    Nice to know that somebody read my comments in the paternity test thread. I kept saying “Look, here are the issues, what are we fighting over?” and everybody kept fighting anyway.

  100. However, I’d limit #3 to services that by their nature must be located at that place, or at some similarly restricted location.

    I agree with that as a preference. But I just don’t see how that works into a coherent definition of Public Use. There is nothing in the phrase Public Use that implies location. Yes, this does mean Public Use is more broad than I would like. But at least the “three prong” test establishes a clear framework, is consistent with an original meaning interpretation, and allows the general public to better understand the scope of Public Use and make decisions based on that understanding.

  101. The problem with the “three part test” I elucidated, which was actually a summary of MP’s views, is two-parted:

    First, it doesn’t explain the Mill Acts, which provided for takings of land that no member of the public would ever access – what with it being under water and all.

    Second, it would allow for taking a home to build a Sunoco, with the only purpose of the taking being to enrich the Sunoco’s owner, with not public purpose at all, just because it is a retail operation.

    The first situation demonstrates that this “three prong test” is inconsistent with the intent of the framers when they adopted the amendment. The second demonstrates that it is open to corruption – far moreso even than the Kelo takings, which at least had a skein of public purpose.

    The real three prong test, the one that was good enough in 1791 and is good enough today, is 1) public ownership, 2) public occupation (and retail stores per se do not meet this criteria, as the public has no right to be there, but is allowed in on the whim of the owner) or 3) public purpose.

  102. joe…

    First, it doesn’t explain the Mill Acts, which provided for takings of land that no member of the public would ever access – what with it being under water and all.
    Incorrect. The lands were required to create the mill. No land, no mill. And the mill was definitely in use by the public. The public would go in and use the facilities of the mill. Thomas also points to the Common Carrier nature of the mills.

    Second, it would allow for taking a home to build a Sunoco, with the only purpose of the taking being to enrich the Sunoco’s owner, with not public purpose at all, just because it is a retail operation.
    The failure of this statement is the injection of the concept of Purpose. Use is Use. Use is not Purpose. Use is not Interest. Justice Holmes was a proponent of this “Purpose” argument, and O’Conner relies on Holmes in her dissent. However Thomas’s footnote two appears to (although I have not looked deeply into each citation) cite many examples showing Use = Use.

    The framers intent is also not particularly relevant. I’m not one to advocate that line of reasoning. Original Meaning is based on an analysis of how words/phrases would have been generally defined at the time of original writing. It is not a mind reading exercise. “They wrote this, but what they actually meant was…” is an flimsy foundation at best. If what they wrote is not truly a reflection of their intent, then they screwed up when they wrote it.

    Recall, BTW, that “it is more open to corruption” logic is the (false) Constitutional justification for campaign finance laws. The tendancy for SCOTUS to see exceptions where none were written is what I consider to be some of the worst abuses by the court.

    Instead of three prongs, it is really just two.

    Prong 1: Government owns the land.
    The Government is an entity entirely under public control. Anything the Government owns is by definition owned by the public. Since owners are inherently the users of their own land, any taking that will result in Government ownership is by definition Public Use.

    Prong 2: Private Ownership, Government/Public Use
    When the Government does not own the land, the land must be in common use by the public. I will cheat here and quote Claeys: “The government may transfer property, under the power of eminent domain, to a private owner only if that owner operates the property subject to traditional common-carrier regulation, specifically the common carrier?s duty of public access.”

    (OK…now I’m beat. In digging further into various references, I still feel like an amoeba in an ocean of information. I would suggest however, that you spend some time reviewing Eric Claeys’s paper Public Use Limitations and Natural Property Rights. Based on your past comments, you’ll likely still find fault with his analysis. But he explores the Mill Acts in far more detail than we’ve ever discussed.)

  103. MP,

    “Use = Purpose” is shorthand. Land taken for a public purpose that ends up in private hands IS a public use – the public is using it to promote development, to implement a redevelopment plan, or to promote economic development. As I’m sure you would agree, the government can take land for a reservoir, even if that reservoir will end up in the hands of a private utility, even if the public is not allowed to go onto the land, and even if the reservoir is used to provide water to private users, with the utility deciding on its own who gets to tap into the system.

    The “Law of Substitution of Accessible Land” doctrine you promulgated above (you can take land for a private party, without the public being allowed to access that land, as long as they can access some other piece of property that private party owns) is as indefensibe and unsupportable as your earlier Doctrine of Government+ Temporality.

    The only difference between taking land for a reservoir, and taking land for an office building, in ConLaw terms, is that the former is a more traditional use than the latter.

    Your two-part test, as a matter of Constitutional Law, has never been the law of the land, not even on the day the Fifth Amendment was adopted. The fact that your doctrine makes Quikie Marts and Whorehouses per se (not as part of a plan, but in and of themselves) appropriate recipients for eminent domain takings should tell you you’re barking up the wrong tree.

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