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Justice Scalia's Unpublished Dissent in Kelo v. City of New London
Its existence was revealed when Justice John Paul Stevens' papers were made public earlier this week.
In my last post, I summarized what I learned from Justice John Paul Stevens' papers on Kelo v. City of New London, the controversial 5-4 decision in which the Supreme Court ruled that the condemnation of homes for "private economic development" is permissible under the Takings Clause of the Fifth Amendment, which only allows takings that are for a "public use." The papers were opened to the public earlier this week.
As noted in my previous post, one of the most interesting revelations in Stevens' files is that Justice Antonin Scalia wrote a dissent in the case, which he eventually chose not to publish. In this post, I reprint Scalia's dissent in its entirely (it's short!), and then offer some comments. Here's the dissent:
As JUSTICE O'CONNOR well explains, ante, at 1-2, 7-8 (dissenting opinion), the Court's decision today goes far beyond the holdings of our prior cases, and renders part of the Takings Clause a virtual nullity. Under the precedent set today, the Public Use requirement is effectively nonjusticiable. The political branches in the Federal Government and each State are left to administer it on the honor system.
It is hard to endure the Court's hymn of praise to "the best tradition of our federalist system," which permits "different communities" to use "political processes" to "strike the balance of costs and benefits in different ways." Ante, at 19. Why is it appropriate to sing that song in a case involving a real-live constitutional text clearly designed to constrain "political processes"; but to leave it unsung in the many cases involving phantom rights that the Court has summoned up from nowhere? The same Court that could fashion an enforceable constitutional entitlement out of every individual's "'right to define"' his or her '"own concept of existence, of meaning, of the universe, and of the mystery of human life,"' Lawrence v. Texas, 539 U.S. 558, 574 (2003) (quoting Planned Parenthood of Southeastern Pa. v. Casey, 505 U.S. 833, 851 (1992) (plurality opinion)), today proclaims that the deeply felt "limits of [its] authority," ante, at 19, preclude it from enforcing a right that has been in the text of the Bill of Rights for more than two hundred years. The Court erects citadels in ultima Thule while leaving the Vandals unattended in Rome itself. This foolish disparity should not go unnoticed, nor (in the long run) uncorrected.
I respectfully dissent.
The Stevens files show that Scalia circulated this dissent on June 15, 2005, eight days before the Kelo decision was issued. He then withdrew it on June 21, after Justice Stevens removed the passages in his majority opinion that most incensed Scalia. Most notably, Stevens cut the references to "the best tradition of our federalist system" and allowing "different communities" to use "political processes" to "strike the balance of costs and benefits in different ways."
For the most part, Justice Scalia's dissent echoes themes from Justice Sandra Day O'Connor's lead dissent, which he had already agreed to join. For example, both emphasize that the majority essentially gutted public use restrictions on takings.
The main distinctive point Scalia makes is the contrast between the majority's unwillingness to enforce an explicit enumerated constitutional right (the Public Use Clause of the Fifth Amendment) and its far greater solicitude for unenumerated "substantive due process" constitutional rights such as those enforced in Lawrence v. Texas (striking down laws banning same-sex sexual relations), and Planned Parenthood v. Casey (abortion). The latter was a longtime major concern of Scalia's (who forcefully dissented in both Lawrence and Casey).
It is interesting that Scalia withdrew the dissent after Stevens made changes to the wording of the majority. Although Stevens removed the specific phrases Scalia complained about, the substance of the opinion did not meaningfully change. It still treats the Public Use Clause much less favorably than various unenumerated rights. And it still cites federalism and diverse local needs as a justification for deferring to local authorities on public use issues:
Viewed as a whole, our jurisprudence has recognized that the needs of society have varied between different parts of the Nation, just as they have evolved over time in response to changed circumstances. Our earliest cases in particular embodied a strong theme of federalism, emphasizing the "great respect" that we owe to state legislatures and state courts in discerning local public needs.
Ironically, just 17 days before Kelo was issued, and nine days before Scalia circulated his dissent, the Supreme Court issued its decision in Gonzales v. Raich, which held that Congress' power to regulate interstate commerce was so broad that it allowed it to ban the possession of medical marijuana that had never crossed state lines or been sold in any market, even within a state. Justice Stevens was the author of the majority opinion in Raich, just like in Kelo. Raich was a deeply flawed ruling that expanded federal power further than any previous Supreme Court decisions, and ran roughshod over state diversity and autonomy. There is an obvious tension between Stevens' paeans to state and local autonomy in Kelo and his endorsement of extraordinarily broad federal power in Raich.
Scalia could and should have called out Stevens and the four other justices who were in the majority in both Raich and Kelo on this contradiction. But he was ill-positioned to do so, because he himself had also voted for the federal government in Raich, albeit in a concurring opinion that used different reasoning than the majority. In my view, this was one of Scalia's worst opinions.
In sum, Scalia was right to highlight the flaws in Stevens' appeal to federalism and local diversity. But his own role in the Raich case prevented him from pointing out the full extent of the contradiction in the majority's position.
There are two interesting unanswered questions surrounding Scalia's unpublished dissent. First, it is not clear why Scalia withdrew the dissent in response to what were largely rhetorical revisions to the majority opinion that failed to address his substantive concerns. Second, as noted in my last post, it is hard to explain why Scalia—the Court's leading champion of originalism—said virtually nothing about the original meaning of "public use" in his opinion, and chose not to join Justice Clarence Thomas' strong originalist dissent.
Despite withdrawing this dissent, Scalia still joined Justice O'Connor's forceful dissenting opinion. In later years, he continued to denounce the Kelo decision and predicted that it would one day be overruled (a prospect he welcomed). I hope he turns out to be the right on that last point.
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Nino Scalia, Sammy “The Knife” Alito, and Clarence “Frogman” Thomas walk into a bar…..
gotta be a good joke there somewhere.
Frank
And being civic-minded men, they decide to put together a 2-week summer school to teach basic grammar and writing to the (mostly Black) children of the (truly terrible) DC school system.
Agree with him or not, that dissent was well written and I wish he’d published it just for the quality of the writing.
And on a more serious note, while it would have been impossible in multiple dimensions, I think that both Thomas and Scalia understood what it was to have a disadvantaged childhood (both had one) and likely would have helped with a politically-neutral educational effort. Much like Rand Paul flies down to Central America every summer to do free eye surgery on behalf of some quite politically neutral charity (Lyons Club?).
Scalia, of course, had no such thing. If Dr. Ed says that it’s sunny outside, assume there’s a monsoon.
A man walks into a bar and says….Ouch!
Scalia’s dissent in Lawrence is better described as “hysterical” rather than “forceful”. He always did have a fear of teh gayz (which is why it was ironic that some tried to implicate a pillow in his death).
If you grew up in a culture where women were protected from men by physical segregation — and that was the culture of his youth — then unless you are going to apply a similar segregation to gay males, you have a problem.
In other words, when homosexuality was illegal and criminal, there was no need to worry about same sex harassment and same sex attempted rape. And opposite sex sexual harassment and rape was prevented by the sexual segregation. Men were attracted to women and hence separating them solved all problems.
The LBGTQ community has never really proposed what they think should replace this.
Because of course there was no sexual harassment by gay men until homosexuality was legalised…really?
Don’t worry, once the existing American liberal and progressive population is outbred by religious Catholic imports from Central and South America, and once the USA loses global hegemony, such that China, the Islamic world, and Africa have a far greater say over international affairs, gay rights will be gone forever.
Have you set a date for your ‘going back in’ party yet?
Has nothing to do with fear, and everything to do with making special laws for them. Which Lawrence v Texas did.
No, Scalia hated gays. There’s a way you can write about people where it’s unfortunate that they can’t claim a right but the law prohibits it. Instead, Scalia wrote about the “homosexual agenda”. He was a narrow-minded bigot who thought that because his thought was guided by one of the world’s greatest intellectual traditions, it wasn’t possible that he was actually an idiot on an important issue. But in fact, he was- and a prejudiced idiot to boot.
Barry Hussein “hated gays” until it was politically advantageous not to hate gays (Pretty sad when a young progressive like Senescent Joe is the one who gets you to “see the light (in the loafers)
How many remember that McCain was the candidate who supported SSM in the 08′ erection? BHO had some bullshit “Civil Unions” position
Frank “God made Adam and Eve, not Adam and Steve”(OK, it’s made up superstitious nonsense, but if there was a God, he wouldn’t put 2 Homos in the Garden of Eden)
Why do you think it’s acceptable, for moral or health reasons, to insert one’s erect penis into another man’s butthole?
“No”? False alternative. That Scalia rightly despised faggotry doesn’t make Callahan’s observation about Lawrence v Texas wrong.
There clearly is a homosexual agenda. Don’t worry, though: it’ll be crushed once American hegemony and influence collapses.
You can think the homosexual agenda is an affront to the American culture, and not hate gays at the same time. You don’t get to decide someone else hates just because that’s how you want to frame it.
You can think the Jewish agenda is an affront to the American culture, and not hate Jews at the same time
Your assertions are best described as “idiotic”.
No one is “fearful” of the gays. We think it’s revolving to insert one’s penis into another man’s butt, especially unprotected. The butt is intended to be exit-only.
If someone can’t find a way to work “The Court erects citadels in ultima Thule while leaving the Vandals unattended in Rome itself” into an opinion soon, there is no hope for us.
Not sure what that means but it sounds cool.
Isn’t “Ultima Thule” an “Exo Planet” or something?
Or something.
I’ve always been a bit disappointed that the Lost Liberties Hotel – or better yet, a chain of 5 of them – didn’t become a thing.
Scalia’s opinion on the flag burning case was an admirable placement of judicial principle over politics. By contrast, his opinion in the marijuana interstate commerce opinion was a disgrace
He never did claim to be a consistent originalist, though. Just a “faint hearted” one.
Even most living constitutionalists will use originalist reasoning where they don’t care too much about the outcome, and are willing to let the actual meaning dictate the outcome. Scalia was the same, he just had a higher threshold for how much he had to care before he’d resort to living constitutionalism. But resort to it he would, if he disliked the direction originalism pointed enough.
The Kelo decision is a loss for individual freedom.
It is one thing for SCOTUS to seek to avoid inserting itself into state gov affairs, it is another for it to water down an enumerated protection against federal encroachment on individual rights. This half-hearted approach to Incorporation provides feeble protection to citizens of the several states while eviscerating those restrictions on federal power that were spelled out in our Bill of Rights.
That is, I think, why the Court invented “substantive due process” instead of just overruling Slaughterhouse on the P&I clause, as they should have: “Substantive” due process affords them a lot more freedom to treat the Bill of Rights like a Chinese menu, and order ala carte. It made the decision whether to incorporate any given right into a judgment call (That they could make based on how much they liked it.) rather than an automatic, “Yes, of course!”
And it’s unacceptable when they do it too.
The statement that condoms prevent pregnancies is not obviated by the fact that sometimes they don’t, no matter that cretin Queenie purports to score a point by claiming otherwise.
Perverted. As with goats or dogs or sheep. No such right.
No different: R v Brown [1994] 1 AC 212; The German Armin Meiwes case.
It’s also about equality: the equality of two (or more) private consenting adults to engage in sexual congress. But the gays are evolutionary duds and are unequal. Hence, they don’t warrant equal sexual rights. Alternatively, you could just overcome the artificial binaries of equality-inequality and see equality as a spectral concept. The gays would be really far down the left-end of the spectrum, very close to the extreme end of being wholly unequal, and so, again, unworthy of equal sexual rights, let alone marriage recognition, etc.
I’m ok with it, even when it’s you being buggered by Frank’s dad while your pre-transition parts wobble and jiggle and leak, but it’s not a Constitutional right.
Cranky whiny bitches like you see doppelgangers everywhere.
But, no, you aren’t qualified to carry Scalia’s jock, no matter how desperately you wanted to wear it on your head.
But he was basically correct. The Kelo majority did attempt to redefine the concept of “public good” as it relates to condemnations (takings). Pubic good used to mean something that benefited everyone, not a single corporation. Fortunately the reaction among the states was so strong that most in power still see it the traditional way.
Given the makeup of the majority it’s as if Kelo was the left’s version of trickle down economics.
He was still right, and he had every reason to be cranky. The last 10 years or so have proven that justifiably.
What do you mean? This is great! You can’t get straight whites to join the US military. (Why would they? They know full well that you’re trying to delegitimize and replace them.) So, now, you’ll have to draft the gays, the illegals, the feminists, and the trans to fight and die for your global imperialistic identity politics program.
Send them all to the front to defend Taiwan! Send them to defend America’s sphere of influence in central Asia! Have the gays and the feminists defend your oil interests in the Gulf! TERFs and trannies, side by side, serving as canon fodder for a truly Lost Cause.
Women were safer on college campi in 1953 than today.
Most of the world despises your country. This is empirically verifiable. And no one will bemoan the loss of your garbage cultural imperialism.
Fuck, you guys can’t even make one quality film these days…
He is correct. A statement that X prevents Y doesn’t mean “the amount of Y that you get is literally zero”. There is no inconsistency between “segregating sexes prevents rape and harassment” and “some rape and harassment still happened”.
You sarcastically pointed out that there was still rape and harassment as if it was a gotcha. it is only a gotcha if you take prevents to mean “literally nothing at all”. That is not what it means.
There’s a difference between the type of sex that creates life and you inserting your diseased pecker into RAK’s equally diseased colon.
Berman Shmerman. The reaction to this decision was so singular and quick and widespread it demonstrates how far out of the mainstream the concept of condemnation of property for private purposes is. This court obviously took Berman too far.
So you’re advocating for a society where each individual’s rights are dependant on an assesment of their genetic heritage and their ability to pass it on though reproduction? To be clear, no such society currently exists, certainly not in the US, and the last time someone tried to create one World War II happened, but this is what you want?
Strangely, you can’t grasp the very similar point that the statement that vaccines prevent infection is not obviated by the fact that sometimes they don’t.
Shouldn’t you be at a drag show for children, desperately trying to normalize your psychological dysfunction?
How dare you presume my sex and gender!!!
No, but seriously, that’s the best you can do because you have no credible, honest reply. Your own conception of equality furthermore relies upon that of the Semitic cults, which you yourself wish to purge from society. You will throw out the baby with the bathwater, as it were.
There is no ‘common sense’ morality or concept of equality that’s an objectively true feature of the world. They’re all socially constructed. And most of the world, per the world’s various moralities, deem yours to be garbage (let alone damn it as cultural imperialism). You’re an evolutionary dud and there is no reason to consider you and your sexual relationships to be equal.
It is demography, moreover, which is destiny. Your values are doomed and so is your gay rights agenda, globally.
You wouldn’t vote for Gattaca?!?!