A Stitch in Haste

Here are my hasty stitches about the Supreme Court's ruling in Kelo v. New London:

--The majority opinion relentlessly talks about railroads, dams, the blighted neighborhoods of Berman and the concentrated Hawaiian land holdings of Midkiff and uses them to essentially say "See, there was never a real 'public use standard' anyway." But as the Cato Institute's amicus brief (PDF - 40 pages) tried to explain, all those examples of private-for-private takings were based on physical necessity. A railroad, even a private one, simply must run in a straight line; you can only build a dam where the river is; the only way to break up a land oligopoly is to, um, break it up. This was simply not the case in Kelo. The city had other options; they just didn't feel like using them. But the Court now, as sweeping new law, says so what? — "Clearly, there is no basis for exempting economic development from our traditionally broad understanding of public purpose." That is just unequivocally and unforgivably wrong.

--The majority does hold out some hope in that it reserves the "hypothetical" case of a strictly one-for-one private transfer for no other reason than to increase tax revenue (e.g., Justice O'Connor's sublime "Motel 6 for a Ritz Carlton" example). I find Justice Stevens' use of the word "hypothetical" rather obnoxious, since that was exactly what happened in the Poletown case that started this whole travesty — the State of Michigan bulldozed an entire town to give the land directly to General Motors. (UPDATE: More on this paradox at SCOTUSblog.)

--The majority opinion mentions the Court's "strong theme of federalism, emphasizing the 'great respect' that we owe to state legislatures and state courts..." As I have blogged more than once, those who worship the false gods of "federalism" and "states' rights" got exactly what was coming to them. How much happier are you, now that your home can just as easily be taken by a state or local government as by the federal government? Because that is what "federalism" means today.

--I take little solace in Justice Kennedy's concurrence suggesting that there might be some sort of "heighetened rational-basis review" for more flagrant private-for-private takings. The Justice who gave us such pro-rights decisions as Lawrence v. Texas and Roper v. Simmons should have been more forceful:

Petitioners and their amici argue that any taking justified by the promotion of economic development must be treated by the courts as per se invalid, or at least presumptively invalid. Petitioners overstate the need for such a rule... A broad per se rule or a strong presumption of invalidity, furthermore, would prohibit a large number of government takings that have the purpose and expected effect of conferring substantial benefits on the public at large and so do not offend the Public Use Clause.

Silly me, I was under the impression that the Bill of Rights might, just might, automatically call for more heightened scrutiny than mere economic regulation. (And we now know from another Slaughter-Rights Case, Gonzales v. Raich regarding medical marijuana, that the "rational-basis test used to review economic regulation" is no test at all. The Fifth Amendment deserves better.) (Over at SCOTUSblog, Lyle Denniston takes a different view of Kennedy's concurrence.)

--I have little to say about Justice O'Connor's main dissent, except "yup." Justice Thomas's lone dissent is a little too "originalist" for my tastes. Why open that can of worms when strict textualism gets you exactly where you want to be?

--Wouldn't it be nice if all those grass-root, "let the voters decide," Red State, "damn activist judges" types put as much effort into enacting state constitutional amendments limiting eminent domain as they did discriminating against gays? You might think people like that would care more about keeping their own homes than what goes on in their neighbors' homes. We'll see.

In 1873, five years after the Fourteenth Amendment was ratified, the Supreme Court, in what today are called the Slaughterhouse Cases, brazenly and summarily declared an entire portion of that amendment, the Privileges & Immunities Clause, a nullity. It has been inert ever since.

Since it was ratified, the Ninth Amendment has similarly been relegated to oblivion by jurists who have arrogantly declared it to be an "inkblot on the Constitution."

Today that sad tradition continues, with one of the most fundamental checks on government abuse of private citizens, eminent domain's "public use" requirement, now simply no longer part of the Constitution.

May it rest in peace.

UPDATE: Richard Posner finally weighs in, focusing more on the "just compensation" element than the "public use" requirement that has been essentially vitiated by Kelo. He does, however, touch upon the railroad "hold-out" problem that I touch upon above. Still, a good read overall.