MayerBlog: The Web Log of
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More Supreme Nonsense
June is “crunch month,” the month that marks the end of the U.S. Supreme Court’s 2004-2005 term, when the Court announces decisions in some of its most significant cases. “Toward the end of the term when there are a lot of opinions outstanding that haven’t come in yet,” Justice Antonin Scalia said (somewhat redundantly) at a recent forum at the National Archives. Chief Justice Rehnquist “is wont to say, ‘Ladies and gentlemen, time to stop thinking and start writing,’” he added. Scalia’s words couldn’t have been more apt in characterizing what the Court did in the final group of cases – issuing in those cases that had been outstanding, opinions that were far from outstanding – as if they had stopped thinking long before they even wrote them. Once again, the Supreme Court (or, rather, a shifting majority of its justices) for the most part got things wrong: they failed to properly interpret the Constitution because they continued to ignore the importance of context – the context of whatever particular provisions of the Constitution they’re applying, within the text of the document as a whole and its essential purpose to limit the power of government and thus to safeguard the rights of individuals. As I have previously written, both liberal and conservative justices alike have been guilty of the logical error of “context-dropping” in most of the Supreme Court cases decided since the late 1930s. (For more on this, see my essay "Interpreting the Constitution Contextually," published in the October 2003 issues of Navigator, the journal of The Objectivist Center.) Of the “outstanding” decisions released by the Court in recent weeks, two of them stand out as particularly striking examples of “context-dropping” errors by the justices (at least those in the majority in the decisions). These are the decisions in the medical marijuana case and the eminent domain case. They illustrate both sides of the Court’s failure to interpret the Constitution contextually: the justices’ tendency to broaden federal powers and to restrict individual rights, the opposite of what true faithfulness to the Constitution demands. Powers and rights, of course, are what the Constitution is all about: its essential purpose is to limit government powers (especially the powers of the federal government) and to safeguard individual rights. True constitutional contextualism would call for a narrow interpretation of the Constitution’s power-granting clauses (such as Congress’s power under Article I, Section 8 to regulate interstate commerce, the power at issue in the medical marijuana case); indeed, that’s what is demanded by the Tenth Amendment, which requires those who interpret the Constitution to adhere to its scheme of strict enumeration of federal powers. True contextualism also would call for a broad interpretation of the Constitution’s provisions safeguarding individual rights (such as the Fifth Amendment “takings” clause, as incorporated into the Fourteenth Amendment, the protection for individuals’ property rights that’s at issue in the eminent domain case); indeed, that’s what the Constitution’s rights provisions taken as a whole, including the Ninth Amendment (with its protection of unenumerated rights) demands. Contrary to those (in the media, for example) who characterize the current Supreme Court as “conservative,” these two decisions show that the Rehnquist Court is quite divided. In both decisions, the four left-liberal justices on the Court (Stevens, Souter, Ginsburg, and Breyer) were in the majority, joined by at least one of the so-called “conservative” justices (Kennedy in both cases, plus Scalia in the medical marijuana case). Just as in Congress, where the nominal majority of Republicans is frequently undercut by “moderate” Republicans who vote with Democrats, so too in the Rehnquist Court is the “conservative” majority undercut by either “moderate” jurisprudes like Justice Kennedy or by maverick conservatives like Justice Scalia (who, as his concurring opinion in the medical marijuana case shows, acts as though he’d rather be clever than right). Notwithstanding the evidence for a partial revival of “conservative constitutionalism” in the Rehnquist Court, these decisions suggest that the only way the Court today is truly “conservative” – ironically – is in its adherence to the left-liberal orthodoxy that has dominated the Supreme Court for most of the past 70 years. Both sides of the so-called “New Deal Revolution” of the late 1930s that created the modern orthodoxy are illustrated in these two decisions: the Court’s overly broad interpretation of federal powers and the Court’s overly narrow (or inconsistent) protection of individual rights. And as both cases also illustrate, the only justice on the Court today who comes close to a true contextualist understanding of the Constitution – the justice who wrote the best-reasoned dissenting opinions in both these decisions – is Justice Clarence Thomas. When Chief Justice William Rehnquist announces his retirement from the Court, President Bush could do no better than to nominate Thomas as the next Chief Justice of the United States. It would be a refreshing change to have a Chief Justice who truly understands the Constitution.
“Reefer Madness” Meets Wickard v. Filburn: The Medical Marijuana Decision
In the medical marijuana case, Gonzales v. Raich, the Court ruled 6-3 that federal laws criminalizing drug possession applied even to persons using home-grown marijuana, or cannabis, for medicinal purposes under sanction of state law. Although the case may seem to involve issues of personal liberty, it really involved a question about federal power – the scope of Congress’s power under the Interstate Commerce Clause of the U.S. Constitution. The six-justice majority decided, in effect, that Congress’s powers under this clause were almost limitless. The two women using the medicinal marijuana, Diane Monson and Angel Raich, are California residents who suffer from a variety of serious medical conditions: Monson, 48, suffers from severe back pain caused by a degenerative disease of her spine; Raich, 39, is subject to severe, debilitating pain from an inoperable brain tumor and more than a dozen other ailments. Both were treated by licensed, board-certified doctors who have concluded, after prescribing a host of conventional medicines to treat their symptoms, that marijuana is the only drug available that provides effective treatment – in other words, that the active ingredient in cannabis provides relief that no ordinary drug can provide. Both women have been using marijuana for several years as a medication pursuant to their doctors’ recommendation, and both rely heavily on cannabis to function on a daily basis. Indeed, Raich’s physician believes that forgoing cannabis treatments certainly would cause Raich excruciating pain and could well prove fatal to her. California law – the Compassionate Use Act of 1996 – authorizes limited use of marijuana for medicinal purposes. The Act creates an exception from criminal prosecutions for physicians, as well as for patients and primary caregivers who possess or cultivate marijuana for medicinal purposes with the recommendation or approval of a physician. Diane Monson cultivates her own marijuana; however, Angel Raich is unable to cultivate her own and so relies on two caregivers (called “John Does” in the court records) to provide her with locally-grown marijuana at no charge. Laws similar to California’s are on the books in at least eight other states (Alaska, Colorado, Hawaii, Maine, Nevada, Oregon, Vermont, and Washington), and voters have approved similar initiatives in at least two other states (Arizona and Montana). Federal law, however, provides no exception permitting medicinal use of marijuana; the federal Controlled Substances Act (CSA) classifies cannabis as an illegal drug. (There is, however, a little-known federal experimental program, started in the early 1980s and discontinued in 1992, which legally provides marijuana cigarettes for medicinal use for a handful of persons – only seven still living.) On August 15, 2002 county deputy sheriffs and agents from the federal Drug Enforcement Administration (DEA) barged into Diane Monson’s home. Although the county officials concluded that her use of marijuana was entirely lawful under California law, the federal agents seized and destroyed all six of her cannabis plants. Lawyers for Monson and Raich brought suit against the U.S. Attorney General (John Ashcroft, at the time the suit began, later replaced by Alberto Gonzales) seeking a court order prohibiting enforcement of the CSA against them, on the grounds that, as so enforced, the federal law would exceed Congress’s legitimate powers under the Interstate Commerce Clause, violate the Ninth and Tenth Amendments of the Constitution, and also violate their rights as protected by the Fifth Amendment Due Process Clause. The federal district court denied Monson’s and Raich’s motion for a preliminary injunction, but a majority of judges on a panel of the Court of Appeals for the Ninth Circuit reversed, ordering the district court to enter a preliminary injunction, after finding that Monson and Raich had “demonstrated a strong likelihood of success on their claim that, as applied to them, the CSA is an unconstitutional exercise of Congress’ Commerce Clause authority.” The Supreme Court granted certiorari, on this sole issue, and reversed the Ninth Circuit, upholding CSA as a valid exercise of federal power, even under “the troubling facts” of this case. In his opinion for the majority, Justice Stevens relied on previous Court decisions that had interpreted Commerce Clause powers broadly since the so-called “New Deal Revolution” of the late 1930s. In particular, he emphasized the Court’s decision in Wickard v. Filburn (1942), a case infamous to law students for illustrating how far the modern Court has permitted Congress’s Commerce Clause powers to reach. In that case, the Court held that regulations under the federal Agricultural Adjustment Act of 1938 applied even to the wheat grown by an Ohio farmer, Filburn, on his own farm, for his own family’s consumption. Although recognizing that Filburn’s home-grown wheat was not in commerce, let alone in “commerce among the several States,” the Court nevertheless reasoned that the aggregate effect of Filburn’s actions, multiplied by all the other farmers around the country who grow wheat for their own consumption, had a “substantial economic effect” on the national market for wheat – and that was sufficient to bring it under the reach of the Interstate Commerce Clause. Justice Stevens distinguished two recent cases in which the Court had limited the reach of federal commerce powers – United States v. Lopez (1995) and United States v. Morrison (2000) – by maintaining that the non-economic purely local activities involved in those cases (in Lopez, possessing a gun within a certain distance of a school building, and in Morrison, sexual assault on a woman) were not connected with a “comprehensive scheme” of national regulation. He thus likened modern federal drug laws to New Deal-era federal agricultural programs: “While the diversion of homegrown wheat tended to frustrate the federal interest in stabilizing prices by regulating the volume of commercial transactions in the interstate market, the diversion of homegrown marijuana tends to frustrate the federal interest in eliminating commercial transactions in the interstate market in their entirety. In both cases, the regulation is squarely within Congress’ commerce power because production of the commodity meant for home consumption, be it wheat or marijuana, has a substantial effect on supply and demand in the national market for that commodity.” Thus, to the majority of justices, the decision in Wickard v. Filburn was controlling, notwithstanding the Rehnquist Court’s so-called “New Federalism,” which in Chief Justice Rehnquist’s opinion for the majority in Lopez, had left Wickard intact. Five other justices joined Stevens in the six-justice Raich majority. The votes of three – Justices Breyer, Ginsburg, and Souter – were not surprising, for they along with Stevens had comprised the four-justice dissenting group in Lopez and Morrison, holding in effect that Congress had unlimited power under the Commerce Clause. But the votes of the other two justices – Justices Kennedy and Scalia, both of whom had joined in the five-justice “conservative” majority in Lopez and Morrison – were a surprise, and a disappointment to those of us who support constitutional limits on federal government powers. Why did these “conservative” justices join their four “liberal” colleagues in abandoning federalism in this case? Law professor Randy Barnett, who represented Raich in arguing before the Court last November, has a plausible explanation for these two justices’ votes. Justice Kennedy’s deportment during the oral arguments supports the theory, suggested by some veteran Supreme Court reporters, that he has a “zero-tolerance” approach to drugs: in other words, that in his desire to reach the result of not compromising federal anti-drug laws, Justice Kennedy abandoned his prior principle of respecting the traditional functions of states (expressed in his Lopez and Morrison concurrences). Justice Scalia, who did not join Stevens’ majority opinion but wrote a separate concurring opinion relying on the Necessary and Proper Clause, reveals himself to be not only a sometimes majoritarian but also “a fair-weather federalist.” Despite Scalia’s “oft-expressed insistence that the people should act to protect their unenumerated rights in state political processes rather than in federal court,” in this case he’s willing to ignore the policy determined by the people of California and ten other states and instead have federal drug-prohibition laws trump contrary state law. Although Scalia admitted in oral argument, “I always used to laugh at Wickard,” he’s now joining “in expanding the reach of the Commerce Clause power beyond even that which the Court had endorsed in Wickard v. Filburn because he now takes a broad view of Congress’s powers under the Necessary and Proper Clause (Barnett, “The Ninth Circuit’s Revenge,” National Review Online, June 9, 2005). Three justices – Chief Justice Rehnquist, Justice O’Connor, and Justice Thomas – dissented. Chief Justice Rehnquist did not write an opinion; he joined most of Justice O’Connor’s dissent, which was based on principles of federalism, including the notion that it is essential to preserve the states’ “core police powers” – their “authority to define criminal law and to protect the health, safety, and welfare of their citizens” – from encroachment by Congress. Noting that the majority identified commerce with economic activity and defined the latter with “breathtaking” breadth – virtually “any activity involving the production, distribution, and consumption of commodities” – Justice O’Connor observed that the majority’s definition of economic activity for purposes of Commerce Clause jurisprudence “threatens to sweep all of productive human activity into federal regulatory reach.” “Most commercial goods or services have some sort of privately producible analogue. Home care substitutes for daycare. Charades games substitute for movie tickets. Backyard or windowsill gardening substitutes for going to the supermarket. To draw the line wherever private activity affects the demand for market goods is to draw no line at all, and to declare everything economic” and thus subject to Congressional power, O’Connor noted. In response to Justice Scalia – who assumed that the CSA’s application to medicinal marijuana was “necessary” to make its regulation of interstate commerce “effective” and therefore justifiable under the Necessary and Proper Clause -- she observed that “something more than mere assertion is required when Congress purports to have power over local activity whose connection to an intrastate market is not self-evident. Otherwise, the Necessary and Proper Clause will always be a back door for unconstitutional federal regulation.” Both Justice O’Connor’s and Justice Thomas’s dissents quoted James Madison’s observation from Federalist No. 45: “The powers delegated by the proposed constitution to the federal government are few and defined. Those which are to remain in the State governments are numerous and indefinite. . . . The powers reserved to the several States will extend to all the objects, which in the ordinary course of affairs, concern the lives, liberties, and properties of the people, and the internal order, improvement, and prosperity of the State.” In his separate dissent, Thomas noted the implications of this decision with respect to Madison’s observation: “If the majority is to be taken seriously, the Federal Government may now regulate quilting bees, clothes drives, and potluck suppers throughout the 50 States. This makes a mockery of Madison’s assurance to the people of New York that the `powers delegated’ to the Federal Government are ‘few and defined,’ while those of the States are `numerous and indefinite.’” As Randy Barnett observes, Justice Thomas’s dissent shows that he is the only principled originalist justice on the Court today. And, as his separate opinions in Lopez and Morrison also showed, he is the only justice on the Court who truly understands the importance of interpreting the Commerce Clause – or any other particular provision of the Constitution, such as the Necessary and Proper Clause – in the context of the Constitution as a whole. Citing Professor Barnett’s own law review articles discussing the original meaning of the Commerce Clause, Justice Thomas observed that at the time of the Constitution’s adoption the term commerce was consistently used to mean trade or exchange – “not all economic or gainful activity that has some attenuated connection to trade or exchange.” Even if we ignore the original understanding, Thomas added, we ought to follow the text of the Constitution, which authorizes Congress to regulate “Commerce.” Monson’s and Raich’s conduct “does not qualify under any definition of that term.” Moreover, in response to Justice Scalia’s reliance on the Necessary and Proper Clause, Justice Thomas explained that banning such intrastate drug activity was neither “necessary” nor “proper”: it was not sufficiently linked to the illicit interstate drug market, and it encroaches on the traditional police powers of the states. “The Necessary and Proper Clause is not a warrant to Congress to enact any law that bears some conceivable connection to the exercise of an enumerated power,” Thomas noted. “If the Federal Government can regulate growing a half-dozen cannabis plants for personal consumption, . . . then Congress’ Article I powers – as expanded by the Necessary and Proper Clause – have no meaningful limits.” As Justice Thomas concluded, “Diane Monson and Angel Raich use marijuana that has never been bought or sold, that has never crossed state lines, and that has no demonstrable effect on the national market for marijuana. If Congress can regulate this under the Commerce Clause, then it can regulate virtually anything – and the Federal Government is no longer one of limited and enumerated powers. . . . [L]ocal cultivation and consumption of marijuana is not `Commerce among the several States.’ U.S. Const., Art. I, §8, cl. 3. By holding that Congress may regulate activity that is neither interstate nor commerce under the Interstate Commerce Clause, the Court abandons any attempt to enforce the Constitution’s limits on federal power.” The federal “war on drugs” is based on an irrational fear of narcotic drugs, a hysteria that includes even so relatively harmless a drug as marijuana – and a hysteria aptly caricatured in the classic cult film Reefer Madness. Of the nine members of the U.S. Supreme Court, four “liberal” justices would allow Congress to criminalize the use and possession of marijuana under all circumstances (even when homegrown for purely medicinal purposes) because they would cede to Congress unlimited powers over Americans’ lives under the rubric of the Commerce Clause. Two other “conservative” justices join the “liberals” in embracing this view of Congress’s plenary powers either because they’re enthralled by Reefer Madness hysteria or because they’re willing to shift the rationale for plenary powers from the Commerce Clause to the Necessary and Proper Clause. Three “conservative” justices aren’t willing to go so far because they recognize that the Constitution imposes limits on Congress’ powers, among them, the principle of federalism. Of those three only one justice, Justice Thomas, fully understands that it’s not just simply federalism that’s threatened by the Court’s decision: it’s the Constitution itself, for if one of its provisions – whether the Commerce Clause or the Interstate Commerce Clause – is interpreted as broadly as the majority justices do, the rest of its text becomes mere “dead letter.”
Taking Liberties: The Eminent Domain Decision
Yesterday, in its 5-4 decision in Kelo v. City of New London, the Court ruled that the city of New London, Connecticut could use its eminent domain powers to seize private property for “economic development.” In this staggering blow to property rights, the four “liberal” justices on the Court (Stevens, Souter, Ginsburg, and Breyer) were joined by Justice Kennedy in an opinion that disregarded both the explicit language and the historical meaning of the Constitution’s clauses protecting those rights. In 2000 the city of New London had approved a development plan that sought to “revitalize” its “distressed” economy by transforming several parcels of downtown riverfront land through private commercial development, including a hotel, office and retail buildings, and a research facility for the Pfizer Corporation (the pharmaceutical company). The city authorized the New London Development Corporation (NLDC), a private nonprofit entity established several years earlier to assist the City in economic development, to purchase the property or acquire it by exercising eminent domain in the city’s name. Petitioner Suzette Kelo is one of ten persons who own homes in the area the city wanted to clear for development. (She has lived in the area since 1997 and has made extensive improvements to her house, which she prizes for its water view. Another one of the petitioners, Wilhelmina Dery, was born in her house in 1918 and has lived there her entire life; her husband, Charles, has lived in the house since they married some 60 years ago.) When the petitioners refused to sell their homes, the NLDC instituted condemnation proceedings, which the petitioners challenged first in Connecticut courts. The court records stipulate that their property was not in “blighted” or otherwise poor condition; rather, these nice Victorian-style homes were condemned only because they happened to be located in the development area. Kelo and the other homeowners argued that the city’s seizure of their property was prohibited by the U.S. Constitution’s Takings Clause: the provision in the Fifth Amendment (applied to state and local governments through the Fourteenth Amendment) that prohibits government from taking private property “for public use” without just compensation. After the Connecticut Supreme Court ruled, over a dissent, that all the city’s proposed takings were valid, the U.S. Supreme Court granted certiorari to determine whether a city’s decision to take property for the purpose of economic development – in other words, to transfer private property from one owner to another, rather than to make way for public spaces like roads or parks – satisfies the “public use” requirement of the Fifth Amendment. In his opinion for the majority of the Court, affirming the Connecticut Supreme Court decision, Justice Stevens denied that the city was engaged in a private taking – in other words, taking the property of A for the purpose of transferring it to another private party, B – because, he maintained, the use of eminent domain power here served a valid “public purpose,” namely, the jobs and additional tax revenues that the city’s developers have projected the “revitalization” project would bring. “Promoting economic development is a traditional and long accepted function of government,” Justice Stevens maintained. “There is, moreover, no principled way of distinguishing economic development from the other public purposes that we have recognized.” Reviewing a series of the Court’s decisions interpreting the Takings Clause since the late 19th century, Stevens wrote “this Court long ago rejected any literal requirement that condemned property be put into use for the general public.” For the past century or so, the Court’s decisions have allowed government to exercise its eminent domain powers to serve a “public purpose” and have defined that concept broadly, giving local governments “broad latitude” to determine “what public needs justify the use of the takings power,” Stevens observed. He cited two decisions in particular: Berman v. Parker (1954), where the Court upheld a development plan targeting a blighted residential area for 5000 inhabitants into redevelopment for streets, schools, and other public facilities as well as for private residential and commercial uses; and Hawaii Housing Authority v. Midkiff (1984), where the Court unanimously upheld a Hawaii statute that took title from landlords and transferred it to renters (for just compensation) in order to reduce the concentration of land ownership. Both were legitimate “public purposes,” justifying the use of the takings power, the Court held. It is revealing that both precedents cited by Justice Stevens were decided before 1986, before William Rehnquist became chief justice. Under the Rehnquist Court, there has been a partial revival of constitutional protection of property rights. Although the Court has not tried to reverse the slippery slope of constitutional jurisprudence that has allowed the bright-line “public use” test to become morphed into the virtually unbounded “public purpose” standard, the Court has given some new vitality to the Fifth Amendment’s protection of property rights by including in the definition of “takings” government regulations that deprive homeowners of substantially the value of their land (see, for example, Lucas v. South Carolina Coastal Council (1992) and Dolan v. City of Tigard (1994)). Nevertheless, it is true – sadly – as Justice Stevens noted in the majority opinion, that the Court has steadily eroded the protection of private property through the Fifth Amendment by broadening its definition of “public use” to include public purposes. As law professor Richard Epstein has shown in his now-classic book Takings: Private Property and the Power of Eminent Domain (1985), the strict limitation on the powers of government the Founders intended by the phrase public use has become, under the modern Court’s interpretation of the Takings Clause, virtually no limitation at all, permitting government to use eminent domain for anything “rationally related to any conceivable public purpose,” as the Court held in Berman and Midkiff. (The frightening breadth of this standard prompted Justice Kennedy, in the Kelo case, to write a concurring opinion suggesting “a more stringent standard of review than that announced in Berman and Midkiff “ in a “narrowly drawn category of takings,” where the risk of local government favoritism toward particular private parties might justify a different presumption. Kennedy’s opinion makes one wonder whether he’s ever attended a city council or a zoning board meeting: the risk of favoritism, which he seems to assume to be rare, is more likely to be “business as usual” with local governments, given the inherently corrupting nature of their land-use powers.) Whatever progress the Rehnquist Court made in reviving property rights has been brought to a grinding halt by this decision. The four conservative justices on the Court, in their dissenting opinions, made clear the ominous implications of this decision, both in its impact on constitutional law and in its practical implications for virtually any American. In her dissenting opinion (joined by Chief Justice Rehnquist and Justices Scalia and Thomas), Justice O’Connor rejected Justice Stevens’ (and the majority’s) sophistry in attempting to rationalize what the city of New London did as something other than a redistribution of property, taking property from one owner and giving it to another. O’Connor began her dissent by quoting from a classic opinion by Justice Samuel Chase in the 1798 case Calder v. Bull: “An ACT of the Legislature (for I cannot call it a law) contrary to the great first principles of the social compact, cannot be considered a rightful exercise of legislative authority. . . . A few instances will suffice to explain what I mean. . . . [A] law that takes property from A. and gives it to B.: It is against all reason and justice, for a people to entrust a Legislature with SUCH powers; and, therefore, it cannot be presumed that they have done it.”
The majority’s decision “abandons this long-held, basic limitation on government power,” O’Connor observed. “Under the banner of economic development, all private property is now vulnerable to being taken and transferred to another private owner, so long as it might be upgraded – i.e., given to an owner who will use it in a way that the legislature deems more beneficial to the public – in the process. To reason, as the Court does, that the incidental public benefits resulting from the subsequent ordinary use of private property render economic development takings `for public use’ is to wash out any distinction between private and public use of property – and thereby effectively to delete the words `for public use’ from the Takings Clause of the Fifth Amendment.” Justice O’Connor and the dissenters interpreted the words of the Fifth Amendment to mean exactly what they say -- that the Takings Clause protects property rights by imposing two limitations on government eminent domain powers: the taking must be for a “public use” and “just compensation” must be paid to the owner. The Court’s decisions have identified three categories of takings that constitute “public use”: first, a transfer of private property to public ownership (such as a road or a military base); second, a transfer of private property to private parties, often common carriers, who make the property available for the public’s use (such as a railroad, a public utility, or a sports stadium); and third, “in certain circumstances and to meet certain exigencies,” takings that serve a public purpose, even if the property is destined for subsequent private use (such as in Berman or Midkiff). O’Connor noted that the majority decision went one critical step further away from the language of the Takings Clause than did either the Berman or Midkiff decisions, for it abandoned the “bedrock principle” which even those two decisions adhered to: that “a purely private taking,” a transfer from A. to B., could not survive constitutional scrutiny for it would serve no legitimate purpose of government. Both Berman and Midkiff involved private property uses that were affirmatively harmful to society. By moving away from those decisions sanctioning the condemnation of harmful property uses and instead allowing takings merely for economic development, the majority expanded the meaning of “public use” so far that the words “do not realistically exclude any takings, and thus do not exert any constraint on the eminent domain power.” Justice O’Connor warned that now “the specter of condemnation hangs over all property. Nothing is to prevent the State from replacing any Motel 6 with a Ritz-Carlton, any home with a shopping mall, or any farm with a factory.” She noted that local governments are likely to use this power in a kind of reverse Robin Hood fashion – to take from the poor and give to the rich – for “the beneficiaries [of the Court’s decision] are likely to be those citizens with disproportionate influence and power in the political process, including large corporations and development firms.” Surely the Founders did not intend this “perverse result,” O’Connor concluded, quoting from James Madison’s 1792 essay on property rights, when he observed: “[T]hat alone is a just government which impartially secures to every man, whatever is his own.” Justice Thomas wrote a separate dissenting opinion, noting that he agreed with Justice O’Connor’s powerful reasoning – “If such `economic development’ takings are for a ‘public use,’ any taking is, and the Court has erased the Public Use Clause from our Constitution” – but went farther, in arguing that the Court needs to reconsider its Fifth Amendment takings clause jurisprudence and how far it has departed from the original meaning of the clause. In this dissent, as in his separate opinions in the Commerce Clause cases, Justice Thomas again shows that of all the justices on the Court today, he strives to be the most faithful to the Constitution’s original meaning – and in this case, to the original meaning of a right expressly enumerated in the document. Justice Thomas observed in his opinion that the Takings Clause, which is just as important and fundamental a protection of individual rights as any of the other clauses in the Fifth Amendment, has two components – the Just Compensation Clause and the Public Use Clause – both of which are explicit limits on the government’s power of eminent domain. The “natural reading” of the Public Use Clause, and its original meaning, “is that it allows the government to take property only if the government owns, or the public has a legal right to use, the property, as opposed to taking it for any public purpose or necessity whatsoever.” In other words, Thomas stressed, the Constitution requires a “public use” – not merely a “public purpose” – and by abandoning that requirement, the Court in its modern jurisprudence has abandoned one of the Constitution’s important protections of property rights. As Justice Thomas persuasively argues, if the Court is truly faithful to the language of the Fifth Amendment, it must reconsider its modern Takings Clause decisions, particular the decisions in Berman and Midkiff, which among other errors, erroneously equated the eminent domain power with the State’s police power (such as the power to abate nuisances). The Court should “revisit our Public Use Clause cases and consider returning to the original meaning of the Public Use Clause: that the government may take property only if it actually uses or gives the public a legal right to use the property.” Like O’Connor, Justice Thomas also concluded his dissent by noting the harmful consequences the Court’s decision will have, particularly on poor and minority communities. “So-called `urban renewal’ programs provide some compensation for the properties they take, but no compensation is possible for the subjective value of those lands to the individuals displaced and the indignity inflicted by uprooting them from their homes. Allowing the government to take property solely for public purposes is bad enough, but extending the concept of public purpose to encompass any economically beneficial goal guarantees that those losses will fall disproportionately on poor communities. Those communities are not only systematically less likely to put their lands to the highest and best social use, but are also the least politically powerful.” The implications of the “deeply perverse” standard that the Court has adopted for eminent domain, as Justice Thomas characterized it – and its harmful impact on the poor and politically less powerful -- also help explain what the Wall Street Journal in today’s editorial called “the unusual coalition supporting the property owners in the case, ranging from the libertarian Institute for Justice (the lead lawyers) to the NAACP, the AARP, and the late Martin Luther King’s Southern Christian Leadership Conference. The latter three groups signed an amicus brief arguing that eminent domain has often been used against politically weak communities with high concentrations of minorities and elderly.” To people familiar with the Institute of Justice, whose attorneys represented the New London homeowners before the high court, the coalition is not at all unusual: the Institute has a distinguished history in protecting the rights of the poor, racial minorities, and politically powerless persons against government regulations. And as this case so aptly demonstrates, property rights are not important just for the well-to-do: they are just as important for the less-well-off, or those who lack political “pull.” Scott Bullock, senior attorney for the IJ, noted, “With today’s ruling, the poor and middle class will be most vulnerable to eminent domain abuse by government and its corporate allies.” Dana Berliner, another IJ senior attorney, added, “It’s a dark day for American homeowners. While most constitutional decisions affect a small number of people, this decision undermines the rights of every American, except the most politically connected. Every home, every small business, or church would produce more taxes as a shopping center or office building. And according to the Court, that’s a good enough reason for eminent domain.” For those of us who support property rights, our sole remaining hope is that some state supreme courts, interpreting their state constitution’s limitations on eminent domain powers, will interpret those limitations more strictly (and thus protect property owners’ rights more broadly) than does the U.S. Supreme Court. Chip Mellor, president of the Institute for Justice, said, “The action now turns to state supreme courts where the public use battle will be fought out under state constitutions.” Some states, through either their state constitutions or through state statutes, impose “public use” requirements stricter than the federal baseline. (In Michigan, for example, although the state supreme court in its infamous 1981 Poletown decision allowed the government to take a working-class, immigrant community in Detroit and give it to General Motors for an assembly plant, the Michigan court just last year overruled that decision, adopting a more stringent public use restriction on eminent domain powers. And here in Ohio, a case involving the city of Norwood (a suburb of Cleveland) with facts similar to the New London case – the city wants to take residences in order to make room for a commercial development – will be litigated before the state supreme court, with IJ attorneys again representing the homeowners.) The problem with relying on state constitutional law, however, is that many state supreme courts are even more unpredictable in adhering to the language or meaning of state constitutional provisions and often adopt U.S. Supreme Court interpretations of federal constitutional provisions, even where the language of state provisions is distinct. I wish the Institute for Justice better luck before the state courts, but I fear that without a change in personnel on the U.S. Supreme Court – we need to replace justices like Stevens with more justices like Thomas – constitutional protections for property rights will remain precarious, for some time to come.
| Link to this Entry | Posted Friday, June 24, 2005 | Copyright David N. Mayer |
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