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Tuesday, August 16, 2005

More on the Kelo Dissent and SDP

I'm sure by now everyone has read Jack Balkin's attempt at likening the Kelo dissent to Dred Scott. He tries a little number where he argues that since the Public Use Clause so clearly doesn't limit private takings, Justice O'Connor (joined by Scalia, Rehnquist and Thomas) is clearly protecting substantive due process. This argument is silly, even for a Balkin post.

He first posits a reading of the Fifth Amendment that limits its protection to takings for public use, meaning that any takings for private use are not even covered:
The Public Use Clause regulates private to public transfers for public use, but note that it says nothing about takings for private use. That is because this category is already dealt with in the first limitation on eminent domain, the Due Process Clause, which prohibits private to private transfers.
To be sure, this is not a terrible argument. It is certainly one reading of the Fifth Amendment, which, like any other reading, has very little "legislative history" support to explain what the clause was meant to mean. That the Court has historically always seen the clause as some sort of limit on the nature of permissible takings probably makes this, in the end, unpersuasive. But this is not Balkin's problem.

He then argues that since Kelo was obviously not a Public Use case, but a Due Process case, Justice O'Connor was, like Taney in Dred Scott, protecting unenumerated rights. Nevermind that O'Connor nowhere mentions reliance on the Due Process Clause, that the case was briefed and argued on the Public Use Clause, and that the Court has always framed the issue in Public Use terms. He notes another seeming paradox:
Nobody accused Justice O'Connor of engaging in substantive due process, and amusingly, Justices Scalia and Thomas, who don't usually recognize unenumerated rights, joined her opinion.
Does he think that Scalia and Thomas were somehow tricked or that he is "outing" them as closet SDP-adherents? It's going to take more than this to prove these two as hypocrites. (See, e.g., BMW v. Gore; State Farm v. Campbell).

Now I think that Justice O'Connor is wrong. But to say that since she was wrong with the Public Use argument, she must be relying on unenumerated rights is to equate misinterpreting a constitutional provision with a judicial philosophy that sees no need for a constitutional provision. Balkin allows no room for misinterpretation, and would interpret every holding by the Court under the Equal Protection Clause, the First Amendment, the Fourth Amendment, etc., with which he disagrees as obviously Due Process violations. Nevermind the text of the opinions; Professor Balkin is responsible for interpreting the actual support for the Court's holdings.

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