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Thursday, June 23, 2005


As expected, the Supreme Court today ruled that the City of New London may initiate a "condemn-and-retransfer" scheme consistent with the Takings Clause of the Fifth Amendment. My earlier posts on this case predicted this outcome, but I was surprised by the vote of one justice: Justice O'Connor. The author of the unanimous opinion in Midkiff about two decades ago this time offered up a vigorous dissent.

The majority opinion of JPS offered a simple argument in favor of upholding the scheme: judicial restraint. The majority was simply unwilling to place a restrictive gloss upon the words "public use." Instead, they believed that cities and their agents on the ground were better able to assess the "public" benefit of the proposed use of eminent domain. In other words, when a legislature reasonably believes that a taking is important to accomplishing a "rational" public purpose, that taking should not be condemned by a court ex ante examining the "scope" of the public benefit, or the wisdom of the purpose. Justice Kennedy's analogy to the due process "rational basis" test is then really the guiding standard behind which the majority coalesces. The only restriction on the "condemn and retransfer" power would seem to be, under the majority's view, that the legislature must make findings and approach the taking with a clear purpose in mind, and a plan to achieve the purpose. The "public use" language thus condemns only pretextual takings, which would serve to benefit only the private party with no other benefits. (Justice Kennedy suggests a higher standard of review where the transfers are "suspicious, or the procedures employed prone to abuse, or the benefits are...trivial or impossible." I don't know if there is a truly objective way to employ a "suspicion" analysis.)

Justice Thomas came down where I expected him to: the current takings jurisprudence has departed so far from the original understanding that we ought to rehtink it all. The framers meant "public use" and not "public purpose," etc. The best line in Thomas' opinion, however, is not about takings or public uses at all: it is about constitutional interpretation. All we ever needed to know about the jurisprudence of the man from Pin Point GA is summed up by the following:

When faced with a clash of constitutional principles and a line of cases wholly divorced from the text, history and structure of our founding document, we should not hesitate to resolve the tension in favor of the Constitution's original meaning.

This now brings me to Justice O'Connor's opinion. I don't want this to turn into a "bash Sandra"-fest (I see my colleague has already posted), especially since where she comes down today is probably correct. However, there is a definite problem and clash between her Midkiff opinion and this one, and her attempts to wipe that clash under the rug is a bit unconvincing.

So what is behind her seemingly more restrictive view of the "public use" language in Kelo? In this case, I might have to retreat to a unsatisfactorily shallow position, but one that may be practically important. Justice O'Connor, who grew up on a farm in Arizona, who has lived her life on the open lands of the American West, simply prefers that individuals own land and that ownership be spread out. In Midkiff, that leads her to look beyond the immediate transfer at hand, which was the condemnation of apartments and the like and the nearly simultaneous re-transfer of those back to their tenants. The "oligopoly" problem of ownership in Hawaii at the time justified government intrusion because the land was handed back to individuals immediately. But here is the problem: if a "Robin Hood" style take-from-rich-give-to-the-poor scheme is a justifiable action of government, why is what is done in Kelo (ostensibly the opposite) not allowed. The Constitution does not per se protect the poor and downtrodden (perhaps one thinks it should), even if they be discrete and insular. The Constitution makes no different allowances for the man who owns twenty tracts of land and the man who owns one or vice versa. I think in Justice O'Connor's mind, the difference is as clear as the difference between the family farmer and Pfizer itself. One owns his land personally, and toils on her land, and reaps the economic and emotional benefits of her land ownership. The corporate entity, on the other hand, owes its very existence to the government, and while it uses its land, it is not in living, breathing existence, attaching not only economic, but emotional benefits also to the land.

But what of the constitutional inquiry: what was an "unordinary" use about the fact that small numbers of people owned and rented lands in Hawaii? And to relate this to Justice Thomas' inquiry, can we really believe that land oligopolies were not conceived of by the framers? Did the original understanding of "public use" include the ability to remedy George Washington's large land ownership through the power of eminent domain? Midkiff simply has to be based on a belief that there is something inherently unnatural and unpublic about concentrated ownership. Is this a constitutional distinction, or a personal one?

I think O'Connor comes to a better outcome in Kelo: the "public use" requirement does have some substantive content, i.e. it is not all about the process of the legislature in condemning the property. But accepting - as one must to agree with Midkiff - that the public use language includes within it the power to transfer from one private party to another because of a "public purpose," is the Kelo transfer invalid. As she wrote in Midkiff, "a purely private taking could not withstand scrutiny of the public use requirement; it would serve no legitimate purpose of governement and would thus be void." This seems classic rational basis: how can an attempt by the legislature to promote economic development and job creation be any less legitimate than the "Robin Hood" scheme upheld in Midkiff.


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