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Tuesday, June 28, 2005

My Soon To Be Favorite Hotel

Randy Barnett blogs that someone upset about SCOTUS's decision in Kelo has proposed to use eminent domain to build a hotel called the Lost Liberty Hotel on Justice Souter's house. Read the press release here and the faxed memo to the town's board here.

The hotel plans to include a museum featuring a permanent exhibit on the loss of freedom in America. In lieu of the complimentary Gideon's Bible each guest will receive Atlas Shrugged.

This is by far the most creative protest to Kelo yet. I would add only two additional features to the proposed plan. First, the hotel should be modeled after Independance Hall (see picture to the right). Second, every person should also receive a free copy of the U.S. Constitution (even though in the future it will just represent marks and have no meaning in a Legal sense).

UPDATE: After listening to a bunch of commentators debate whether such a project was appropriate or just retaliation I've changed my mind..... the hotel should be modeled after Kelo's own home. But in all seriousness, the appropriate channel was that taken by Senator Cornyn when he introduced the The Protection of Homes, Small Businesses, and Private Property Act of 2005. The PHSBPPA can only constitutionally govern municipal takings that use federal funds under the Spending Clause, but this sends a strong statement to SCOTUS. I wonder if we are going to see another City of Bourne case, where SCOTUS overturns an act of Congress that sought to overturn SCOTUS's interpretation of the Constitution?

Continue Reading "My Soon To Be Favorite Hotel" . . .

And Speaking of Leiter and Originalism

In my post the other day on Kelo, I made parenthetical reference to some points raised by Prof. Leiter about originalism here. I'd like to treat them a bit more fully and fairly here. Prof. Leiter professes some befuddlement that concern for original meaning is "dominant" in the legal world today (gosh, I hadn't noticed that myself, to be honest). But his befuddlement is rather befuddling to me. He puts his critique thus:

Why is what the framers thought even relevant? They left us a text, written with words that have meaning, sometimes contestable, sometimes clear. It would take a principled explanation as to why we are bound by anything more than that text and its words. But originalism is the pathology of our current constitutional culture, so deeply embedded that the quasi-liberals and those on the left genuflect before it.

My befuddlement is this: I would have thought it obvious that if one were bound by some prior person's text that the boundaries of one's boundedness should bear some necessary relationship to the meaning the text had at its creation. I would think the burden is on the anti-textualists, anti-originalists to explain why we should be bound by "words" but not by meanings. Leiter wants it the other way round: he'll happily (why?) grant that we might agree to be bound by the written document but he won't admit that that has gotten us very far, since we need a separate agreement to figure out what the markings on the page mean.

I thought perhaps I hadn't recently enough boned up on the philosophy of language, and that my fusty notions of the relationship of the rule of law to written laws were hopelessly outdated. So I consulted a friend of mine who teaches philosophy and has published recently and to some acclaim on the topic of the philosophy of language. He had this to say:

Difficult to know what to make of such. Without meanings, there are no such things as words. There are such things as burps, sighs, guffaws, and such. But sound lacking meaning is just sound signifying nothing. So I find it difficult to affirm his thesis when we reflect upon it for a moment: it is important that we keep the markings on the page of written laws but not the meanings. What does that mean? "markings on the page of written laws." How can we have written laws that consist merely are markings on a page? O.k. Maybe "it is important that we stick to the markings on the pages of things that used to be written documents enunciating laws." I can understand that thesis. But I cannot imagine what legal theory would affirm the importance of keeping to markings on a page.

I think that gets things about right. And it reminds me why I'm happy that we've written laws, and why I'm sad when professors and judges pretend that somehow we need deep accounts of why we write things down. Judging is not easy, and it is not mechanical--we need human judges, not scantron machines, deciding cases. But we shouldn't pretend that the difficulty of judging follows from something more recondite than the ordinary difficulty of bring even the clearest of principles to complex cases; in particular we need not pretend that it follows from some trendy observations about the hopeless incapacity of language to convey meaning, an incapacity that can only be cured by clever professors and liberal judges who will free us from a puerile attachment to what the words somebody bothered to write down might have meant when they were written.

Two other points, in fairness to Prof. Leiter. First, he links to a paper by Andrei Marmor which he claims furthers his argument. The problem is that Marmor's paper is all about the difficulty of figuring out "framer's intentions" which is not what most textualists/originalists purport to be interested in. We purport to be interested in the meanings of written words--it's why they were written. That's not always easy, and even when we have a clear meaning it can be hard to apply it. But that's not because meaning itself is somehow illusory or intractably impossible to fix. If that were so, Profs. Marmor and Leiter would probably not be so optimistic as to write as many things down as they both do!

Secondly, Prof. Leiter attempts to attend to this distinction in an update toward the end of his posting. But while he posits that one can sever "constitutionalism" (it's not clear how one should treat unwritten constitutions, such as the British have, in this analysis) from "originalism," he never explains why one would do so. He then repeats his demand for a "principled" case for being bound by the original meaning. The principle is inherent, though, in writing laws down in the first place--it is the principle that the law (not any given human being, such as a judge or a chancellor or a prince or a Guardian) is the rule. Originalism is all about the rule of law. And it is simply not intelligible to speak of the law ruling when (a) the law is written but (b) the meaning of what was written bears no necessary relationship to its future application. One need not have naive optimism, again, about the ease of interpretation to be committed to the simple notion that in attending to a written text one should attend to what the meanings of the words were when the text was written, in order to understand the thing. And the burden should be on Leiter to explain WHY one would have any commitment to a written Constitution but NOT a commitment to fixed "meanings."

Continue Reading "And Speaking of Leiter and Originalism" . . .

Balkin, Leiter, and Responsible Analysis

Well, my blood pressure this morning got more than just its usual caffeine jolt, since yesterday's 10 Commandments opinions gave the calm and responsible Profs. Balkin and Leiter a chance to bash Justice Scalia as a bigot once again. It's so easy to bash people when you get quote them selectively and hope nobody will bother to check the source.

For instance, Prof. Leiter characterizes yesterday's opinion thus: "Scalia to Atheists: Drop Dead!"--which overheats the already unjustifiably overheated rhetoric he links to over at Balkinization. Of course, it would be less sexy to quote Scalia accurately, and it would fail to show him to be a religious bigot or fanatic, so quotation in such matters, accurate quotation, just won't do for Prof. Leiter.

But let's move from Texas to the Yale Law school, where the noted Prof. Balkin gets all huffy about Scalia's mysteriously lumping together Judaism and Islam with Christianity in positing that the original meaning of the Establishment Clause permitted invocations of God consistent with monotheism in general but not invocations consistent only with Chrsitianity in particular. Prof. Balkin professes to be quite perplexed by this, and seems to suggest that Justice Scalia just gives us no help at all in understanding the problem. Well, perhaps the printers were clogged up at Yale, or they are saving paper and printing only every other page of opinions by the textualist Justices or something. Because surely if Prof. Balkin had read this argument, for instance, he would not pretend it did not exist:

Justice Stevens also appeals to the undoubted fact that some in the founding generation thought that the Religion Clauses of the First Amendment should have a narrower meaning, protecting only the Christian religion or perhaps only Protestantism. See Van Orden, ante, at 20—22. I am at a loss to see how this helps his case, except by providing a cloud of obfuscating smoke. (Since most thought the Clause permitted government invocation of monotheism, and some others thought it permitted government invocation of Christianity, he proposes that it be construed not to permit any government invocation of religion at all.) At any rate, those narrower views of the Establishment Clause were as clearly rejected as the more expansive ones. Washington’s First Thanksgiving Proclamation is merely an example. All of the actions of Washington and the First Congress upon which I have relied, virtually all Thanksgiving Proclamations throughout our history,5 and all the other examples of our Government’s favoring religion that I have cited, have invoked God, but not Jesus Christ.6 Rather than relying upon Justice Stevens’ assurance that “[t]he original understanding of the type of ‘religion’ that qualified for constitutional protection under the First amendment certainly did not include . . . followers of Judaism and Islam,” Van Orden, ante, at 22; see also ante, at 32—33, I would prefer to take the word of George Washington, who, in his famous Letter to the Hebrew Congregation of Newport, Rhode Island, wrote that,

“All possess alike liberty of conscience and immunities of citizenship. It is now no more that toleration is spoken of, as if it was by the indulgence of one class of people, that another enjoyed the exercise of their inherent natural rights.” 6 The Papers of George Washington, Presidential Series 285 (D. Twohig et al. eds. 1996).

The letter concluded, by the way, with an invocation of the one God:

“May the father of all mercies scatter light and not darkness in our paths, and make us all in our several vocations useful here, and in his own due time and way everlastingly happy.” Ibid.

There is nothing at all mysterious about Justice Scalia's position: it is clear from the historical record that the Framers simultaneously (1) rejected establishment of religion; (2) rejected official associations of the government with Christianity; and (3) embraced official expressions reflecting belief in a single God. Now, so far as I can see, Professor Balkin nowhere challenges the facts as adduced by Justice Scalia. What he does do is omit some of them. Then he tells us that Justice Scalia's opinion amounts to this:

And there you have it. If you aren't a monotheist who believes in a personal God, the government may disregard you. You don't count. We won't persecute you, of course, that would violate the Free Exercise of Religion. But we can disregard you. You are insignificant. You are not us, or perhaps more correctly, we count you as part of us when government acknowledges God, and disregard your protestations to the contrary that you have been left out.

Now, I challenge anyone to read fairly the two paragraphs quoted by Balkin immediately prior for anything like support for that characterization of Scalia's position; you won't find it anywhere in the opinion, in fact. The "disregard" Scalia writes of is simply that it was clearly seen as permissible by the Framers to reflect belief rather than non-belief despite the lack of unanimity. That's not "drop dead" and it's not "you are insigificant." It's, "we can't reflect all views all the time, and so long as we don't establish a religion, we will not eschew all religious talk." But that accurate portrayal of Scalia's views would be far less exciting, and hardly worth bashing.

Nor will you find Prof. Balkin explaining how it is that when the government reflects in some official way a generally theistic worldview it either makes "second class" those citizens who disagree, or how it in any way amounts to an "establishment" of religion. Now perhaps it would be a better world if the sensitivities of non-believers were catered to by never making an official utterance that reflected that most people disagree with them. But that's not what was supposed to be at issue yesterday. What was supposed to be at issue was whether the First Amendment itself insists upon such a world.

If the two Professors have any arguments to that end I'm all ears. But to the extent that they have to mischaracterize and demonize what was written yesterday in the fashion seen in these posts, I think I shall be waiting in blessed silence for a long while before I hear such arguments.

Continue Reading "Balkin, Leiter, and Responsible Analysis" . . .

Monday, June 27, 2005

Supreme Changes?

Today will end the 2004-2005 Term at the Supreme Court. It may also be the day when Chief Justice Rehnquist steps down after 33 years on the bench. He has presided over an era of struggles over the Court’s faithfulness to the text and principles of the Constitution. If a vacancy does open up, one thing is for sure both the Left and Right are ready to battle. Organizations all over are geared up for the nomination battle. The media is hyping it like we are on the brink of Armageddonn. But as I glanced over SCOTUSBlog's voting statistics for this past term, I realized that there is not going to be a Supreme Change if WHR retires. WHR is as conservative as anyone on the court. In fact the voting statistics showed that WHR disagreed with the "Liberal Four" more than any one else.

Disagreed with JPS DHS RBG SGB Avg.

WHR 43% 37% 35% 30% 36.25%

CT 38% 35% 36% 32% 35.25%

AS 36% 31% 31% 28% 31.50%

AMK 31% 26% 24% 19% 25.00%

SOC 28% 24% 27% 18% 24.25%

So if WHR is replaced by a conservative justice, the right only maintains its position. It really has nothing to gain. However, if a AMK or SOC like justice is nominated and confirmed, then the left can gain some serious ground. The right knows this and will likely nominate a conservative justice to replace WHR. This means that the only real significant change we will see with WHR's replacement (if there is one) is that each term one more lucky law student will be a SCOTUS clerk (WHR only hires 3 clerks per term instead of 4 like every other justice).

Update: Even though WHR did not announce his retirement at today's session, he may still retire today as Lyle Denniston points out here in the more traditional off-the-bench press announcement.

Continue Reading "Supreme Changes?" . . .

Sunday, June 26, 2005

The Scalia-Thomas crystallization

The October 2004 term may be remembered for the many important cases decided, including Kelo, Raich, Roper and Booker. It may be remembered as the last term of William Rehnquist's long and distinguished career as a jurist. It may be remembered as the end of a minor conservative jurisprudential counter-revolution: Whither Nollan and Lucas (property rights)? Whither Lopez and Morrison (enforceable commerce power limits)?

But in addition, this term is significant for the insight and crystallization it has provided us in understanding Justice Thomas and Justice Scalia and how they differ. From this term on, the old liberal tag for Justice Thomas as Scalia's "pet" must be discarded. In particular, four decisions provide a window into the differences: Raich, Kelo, Granholm v. Heald and Cutter v. Wilkinson. Please note, I do not intend this post to be a comprehensive analysis, but merely perhaps a prelude to further analysis and discussion.

In Cutter, Justice Thomas wrote separately to express his opinion that the First Amendment's establishment clause was understand originally as a "federalism" provision.
The Establishment Clause provides that "Congress shall make no law respecting an establishment of religion." Amdt. 1. As I have explained, an important function of the Clause was to "ma[ke] clear that Congress could not interfere with state establishments." Elk Grove Unified School Dist. v. Newdow, 542 U. S. 1, 50 (2004) (opinion concurring in judgment). The Clause, then, "is best understood as a federalism provision" that "protects state establishments from federal interference."
Justice Scalia did not sign on to Justice Thomas' opinion, and one can probably guess why: Thomas' vision would have dramatic impact upon the current understanding of establishment, and would overturn almost all modern precedent. Thomas' contention that "Congress presumably could not require a State to establish a religion any more than it could preclude a State from establishing a religion" is simply a step further than Scalia, no fan of the Lemon test or the "wall of separation", is willing to go. It will be interesting to see the opinion tomorrow in Van Orden. I predict that both justices will vote to uphold the displays in both cases, but perhaps in slightly different ways. While neither will agree with an Breyer split-the-baby approach or with O'Connor attempting to uphold the Commandments as "secular" symbols, I suspect they may write separate opinions in the cases.

The split in Raich was undoubtedly more complicated than mere precedent. Scalia noted in oral arguments that he thought Wickard a silly case, so to some extent, it probably did come down to whether the aggregation principle ought to carry the day and whether Wickard was still viable. But more than that, I would suggest its reality of modernity that leads to the ultimate split. Justice Scalia's originalist credentials ought not be dismissed, but at base, his principles are more of a guidebook, whereas for Thomas, originalism is, well, a commandment. Justice Scalia has always said that there must be pragmatist exceptions to his principled stands, stare decisis being one. Perhaps a recognition that, even more so than in Wickard's time, the market for most goods and services does not and cannot exist in a vacuum within a single state, leads to his position in Raich. Thus, the necessary and proper argument carries the day, because if the power of Congress reaches to the ability to restrict the drug trade, and to "schedule" drugs (T. More has suggested to me that the first may be within its power, the second perhaps not), how can they not also have the concurrent power to make their regulation effective. Scalia's argument may, of course, suffer from the thing he hates (in jurisprudence): evolution. As the underlying power expands, does it follow that the N&P power expands with it? In the end, Thomas retreats to an easily defensible position: even the framers knew that markets were inter-connected, but they didn't envision Congress would have the power to reach all conduct no matter where and how tenuously connected to commerce (this of course may have somet connection to their outcome in the Granholm/Swedenburg case. One can't say all the reasons they end up on different sides, but Raich certainly shows us their differences front and center.

Kelo has been the subject of extensive discussion, and while it seems clear that Scalia is a strong defender of private property rights, he did not sign onto Thomas' forceful originalist dissent. Is this the Oakeshottian conservatism again rearing its head?

Finally, the Granholm v. Heald wine-shipment cases provide a very interesting forum for brief analysis. Justice Scalia votes with the majority without an opinion. He obviously believes this to be a straight-forward case of discrimination against out-of-state interests, and he thinks the laws should be invalidated. He was apparently not convinced by Justice Thomas' further argument (a dissent Stevens labeled as persuasive and comprehensive) that even assuming discrimination, the

Webb-Kenyon Act and the Twenty-first Amendment cut off this intrusive review, as their text and history make clear and as this Court’s early cases on the Twenty-first Amendment recognized. The Court today seizes back this power, based primarily on a historical argument that this Court decisively rejected long ago.

Justice Thomas thought the majority opinion played fast-and-loose with history, arguing that the cases decided closest to the Twenty-First amendment were consistent with his view, and that only the more modern case of Bacchus supported the majority's reasoning. Thomas also noted that while the court pointed out some good policy reasons, "The Court’s focus on these effects suggests that it believes that its decision serves this Nation well. I am sure that the judges who repeatedly invalidated state liquor legislation, even in the face of clear congressional direction to the contrary, thought the same." The majority opinion in this case again seems to presuppose the need for uniform markets, much like Raich, while Justice Thomas again retreats the the dual sovereignty position that even in an age of uniform markets, states have significant powers to regulate their own citizens' access to these markets. In terms of Dormant Commerce Clause, I suggest we also look to the short separate opinions of Thomas and Scalia in the American Trucking case this term. First Justice Thomas:

I would affirm the judgment of the Michigan Court ofAppeals because "[t]he negative Commerce Clause has nobasis in the text of the Constitution, makes little sense, and has proved virtually unworkable in application," Camps Newfound/Owatonna, Inc. v. Town of Harrison, 520 U. S. 564, 610 (1997) (THOMAS, J., dissenting), and, consequently, cannot serve as a basis for striking down a state statute. Hillside Dairy Inc. v. Lyons, 539 U. S. 59, 68 (2003) (THOMAS, J., concurring in part and dissenting in part).

Now Justice Scalia:

...I agree with the Court that this fee does not violate the negative Commerce Clause. Unlike the Court, ante, at 3–4, 8–9, I reach that determination without adverting to various tests from our wardrobe of ever-changing negative Commerce Clause fashions: the balancing approach from Pike v. Bruce Church, Inc., 397 U. S. 137 (1970), the four-factor test from Complete Auto Transit, Inc. v. Brady, 430 U. S. 274 (1977), and the internal-consistency test from cases such as American
Trucking Assns., Inc. v. Scheiner, 483 U. S. 266 (1987). Instead, I ask whether the fee "facially discriminates against interstate commerce" and whether it is
"indistinguishable from a type of law previously held unconstitutional
by this Court..."

I cannot hope to truly analyze the distinctions between these two distinguished jurists in this small space. I only hope to point out that this term perhaps more than any other in recent memory has seen the two most "conservative" justices on the courts often on different sides of important issues. The consequences of, and even the reasons for, such differences, are beyond this simple blogger. But for those who thought, and still think, of Justice Thomas as a mere "lapdog" without his own brain or jurisprudential style, the 2004 Term must call for a reassessment of this shallow understanding...whither Harry Reid?

Continue Reading "The Scalia-Thomas crystallization" . . .

Kelo discussion continues at SCOTUSblog

There are many great new posts, and even more promised to come.

Also, since we'll see Grokster and the Ten Commandments cases tomorrow, here are the links to those SCOTUS sub-blogs:

the Grokster sub-blog at http://www.scotusblog.com/discussion/archives/grokster/index.html;

the Ten Comamndements sub-blog at http://www.scotusblog.com/discussion/archives/ten_commandments/index.html.

and, the Kelo "sub-blog" at http://www.scotusblog.com/discussion/archives/kelo/index.html;

Continue Reading "Kelo discussion continues at SCOTUSblog" . . .

Saturday, June 25, 2005

Stare Decisis & Persuasion

I finally had a chance to read Justice Stevens's very persuasive opinion in Kelo. It is persuasive in a couple of refreshing ways: it is honest enough to admit that the meaning applied in this case to a 200 year old clause is but "100" years old. Who would not admit that, once we converted "use" to "purpose" (without changing that pesky text, which, as Brian Leiter recently noted in a bizarre rant on originalism, is just there so we have "words"--not so we have "meanings"; thus, when we make those stubborn old words take on new meanings, we get the constitution we want and a nice piece of harmlessly antique verbiage...everyone's a winner!) it does not make sense to read the "words" as written? Heck, for all you know, these little "words" you are reading are actually a paean to non-originalist jurisprudence! (Or do you think you espy meaning here, you dogged originalist!)

It is persuasive, therefore, that you if you are willing to give up on the original meaning then you can find your way to the novel meaning; further, if the novel meaning is very broad, then it can even be broad enough to encompass this "Sam's Club"-sized version.

But this raises for me a curiosity. The majority opinion goes to great pains to note that it is not for courts to do the sort of policy analysis that underlies the legislative judgments involved in seizures of this sort. Yet both to account for the original shift from the "narrow" view of "use" as "use" to the "more natural" view of "use" as "purpose" (!!!--you can't make this stuff up, folks) and to account for its inexorable widening over the years, Justice Stevens (perhaps to satisfy the niggling qualms of those, like my stubborn self, who don't "naturally" read "use" and understand "purpose") shares with us that the "evolving" nature of society has rendered this less "narrow" "reading" necessary.

Hmmm. That sounds less in the nature of interpretation, and more in the nature of a policy judgment. Indeed, as I have written elsewhere on this blog, the doctrine of stare decisis seems to me essentially pragmatic (and therefore ineluctably policy-oriented). Stare decisis needs to be invoked when nothing else justifies a particular reading of the constitution. But we know from, say, Lawrence v. Texas, that certain members of this majority (all of them) don't think of stare decisis as always applying. Therefore they need some reason, it seems to me, for sticking with the original error. And if the reason is some sort of "evolving" necessity, then saying that courts can't judge of the practical details beyond a mere "rational basis" (or there's the "rational basis plus not-a-sham" test of Kennedy's concurrence) standard strikes me as an utterly question-begging approach.

So we have the Court acknowledging that (a) its reading of the text, though "natural" has only been so for 100 years; and (b) that that reading is supported by practical judgments about "evolving" needs; and (c) the constitution, whose "words" do not constrain these evolving needs (nor, it appears, evolving meanings) does constrain judges from thinking too hard about them. It would seem that the court is permitted to think only superficially about whether changing needs have changed the meaning of the Constitution, and then defer to a minimally rational legislative judgment. But, fusty ol' me, I thought it was "emphatically" the "province and duty of the Judicial Department to say what the law is"...

Are you persuaded?

P.S. I had some thoughts about how this hundred-year old novel reading of "use" as "purpose" has the air of collectivism about it. But that might suggest that such a reading partakes of a kind of domestic "socialist revolution." And that would put me in league with the likes of D.C. Circuit Judge Janice Rogers Brown, and I eschew such radicalism. So I'll keep those thoughts to myself.

Continue Reading "Stare Decisis & Persuasion" . . .

Thursday, June 23, 2005

Paging Penumbras

Quick food for thought

--- If you are engaged in sodomy in your house, the government can't come in and do anything about it, because the private bedroom is sacred, and we want to keep the state out (or so the logic goes). But, if you are just watching TV in the sacred marital bedroom, the government can kick you out and demolish your house (marital bedroom and all).

--- The government can't quarter soliders in your house during peace time. But, if they are adamant, they can take your house away and put anyone there who they want.

The difficulty of this decision is not its deferential view of public use. The traditional conservative view of state legislatures demands deference. After all, those who advocate for a more robust, judicial policing of the public use clause seem to call on judges to step in and rule that a use deemed public by a legislature (or at least claimed to be public by the time the legislature's graft is haled into court), is really not in the public interest at all.

A hallmark of the recent conservative/liberal divide, though, has been over deference to state legislatures on grounds not easily provable under standard social and natural sciences. For example: Everyone is comfortable deferring to the legislature where the entire environmental community is on board. Everyone is happy rubber stamping economic legislation based on Nobel prize winning economics.

But we don't need legislatures for that type of work. If all we wanted out of life was deference to aristocratic experts, we wouldn't need to gather democratically elected representatives in state houses across the country.

Democratic governance is a tricky business. Millenia ago, Plato pointed to the foolishness of letting expert decisions be made by non experts. But we, at least in the part of the country which still values elected democracy (which includes Lord Coke when he returns home from New York to Ohio), are willing to give up expert leadership in favor of leadership by majority will.

There are too many values embodied in this principle to fully explore here. But one is particularly relevant for the Kelo decision. One set of experts may say that demolishing the Kelos' home in favor of private industrial development is bad for the economy. Others may see it as beneficial for the local economy. Others may see it as harmful for the environment, while still others may see it as improving the psyche of the neighborhood by showing corporate interest in the area. The point is that there is no single set of expert opinions which can police a "public use" requirement, since the public interest cannot be defined by any finite set of knowledge now at are disposal. Thus, there are no standards available to courts to evaluate the public nature of a taking. But rather, we have no choice but to assume that the public is interested in any project which a majority of legislators (whether by hook, by crook, or by legitimate interest in the public good) agree is in the public interest. In the chaos of a legislative vote, all of the various interests in land described above (and many more) can be voiced, shaken out, and driven to compromise. This process of compromise is the only method available to government now to balance competing conceptions of "public use."

Inconsistency arises more in other jurisprudential areas than in this one. After all, the same reasons which demand we trust legislative assessments of "public use" for takings demand we trust legislative assessments of "public interest" in criminal law, housing law, family law, etc. All of those cases present myriads of experts and theories demanding a place at the policy table. Only by trusting legislatures and removing the temptation to interfere judicially can any reasonable balancing of competing interests and ideals occur.

But the Supreme Court has not truly allowed this deference in other areas. Any interest which cannot be neatly cabined into an ivy league academic department is classified as "moral," a term used by recent federal jurisdprudence to refer to justification for an interest not based in the generally accepted social and natural sciences. But while it is tempting to enforce some rigor on legislative ideologies, the principled reasons we have majoritarian rule in the first place is violated if we demand such explanations.

So, while I understand why the court refused to honor the liberty interest of privacy in the property context in the face of contrary legislative intent, I can only hope that this same logic will be extended to other areas of judicial supervision of majoritarian politics.

Continue Reading "Paging Penumbras" . . .


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.

Continue Reading "Kelo" . . .

The Public Use Clause is Surplusage

Despite my misgivings with the O'Connor opinion, she makes a good point that there is now little, if any, difference between the protection offered by the Due Process Clause against irrational legislation and the protection offered by the Public Use Clause (although why she thinks that isn't the case under the Midkiff regime is a mystery).

Justice Kennedy's opinion also notes:
This Court has declared that a taking should be upheld as consistent with the Public Use Clause as long as it is "rationally related to a conceivable public purpose." Midkiff; see also Berman. This deferential standard of review echoes the rational-basis test used to review economic regulation under the Due Process and Equal Protection Clauses, see, e.g., FCC v. Beach Communications, Inc.; Williamson v. Lee Optical.
My Federal Courts Professor thinks that the Equal Protection Clause in the Constitution is surplusage since only irrational discrimination violates it--legislation that would fail the Due Process Clause anyway. The Public Use Clause, under the Court's formulation in Kelo, is similarly surplusage.

Continue Reading "The Public Use Clause is Surplusage" . . .

Distinguishing Berman and Midkiff

I'm surprised (although given the author not completely surprised) to see in Justice O'Connor's dissenting opinion in Kelo that she tries to distinguish Kelo from Berman and Midkiff, characterizing those cases "true to the principle underlying the Public Use Clause," while scolding the majority today for "delet[ing] the words 'for public use' from the Takings Clause of the Fifth Amendment."

Both Berman and Midkiff, according to Justice O'Connor, "directly" achieved a public benefit, making the fact that the property was turned over to a private party immaterial. By contrast, the benefits in Kelo were only secondary--"increased tax revenue, more jobs, maybe even aesthetic pleasure." Since virtually every taking that attains some sort of assembly gain can provide these secondary benefits, the Court's holding today does not realistically exclude any takings.

So the distinction here is that removing blight (Berman) and fixing an oligopoly (Midkiff) are fine, but economic development through rejuvenating a dying area (Kelo) is not a public use. I don't buy it.

Justice O'Connor is, in my view, splitting hairs. She's caught once again in a situation where she has no formal answer to the legal question and makes unconvincing arguments. The Public Use Clause needs to either be more than just rationality review of the legislature's determination (which O'Connor alludes to when she says that the current protection is no more than that already afforded by the Due Process Clause which prohibits irrational legislation, but would make it hard not to overrule Berman and Midkiff) or this issue is not what should be making eminent domain decisions.

It's not at all clear what the Public Use Clause originally meant, whether it was intended to limit permissible takings or whether it was just describing the types of takings for which just compensation must be paid. I admit to not yet having read Justice Thomas' dissent that discusses the historical meaning of the Clause, but I've read contradicting accounts from equally viable sources, and there is, I think, no concensus on what the Clause originally intended.

And the Public Use limitation is problematic anyway, because as long as you're willing to allow the retransfer in some situations (such as the bilateral monopoly problem), the Court has to be in the business of checking the legislature to see if this project is really going to be profitable, really produce the kind of benefits the developer is claiming. There is no reason to think that this is something the Court is good at.

We've talked on Ex Post before (e.g. here) about the Just Compensation solution to this problem and how to both disincentivize these condemn and retransfer schemes by making them more expensive and more adequately compensate takees for subjective losses. That is, takers should have to share the gains they receive from the assembly of multiple parcels with the takees. We have, admittedly, all stolen this from Tom Merrill, as argued in his Kelo amicus brief. But this, to me, is the way IJ should be fighting eminent domain abuse and not by making Public Use arguments.

Continue Reading "Distinguishing Berman and Midkiff" . . .

Kelo is here

Lyle Denniston reports on SCOTUSblog. 5-4 opinion by Justice Stevens. We'll have plenty to come on this, and check out SCOTUSblog's metablog as well for debate and discussion.

Continue Reading "Kelo is here" . . .

Monday, June 20, 2005

RLUIPA Case, ex ante

I'm going to be the first (I think) to predict the Supreme Court accepting cert for another RLUIPA case next term. Adkins v. Kaspar is a 5th Circuit case dealing with the definition of "substantial burden" in RLUIPA, defining RLUIPA's protection of religious exercise to very little. A prison in Texas places such tough restrictions on the circumstances under which the inmates can hold Sabbath services, that Mr. Adkins can only observe the Sabbath once per month. The Becket Fund filed a cert petition, and I think the Court should/will take it.

RLUIPA mandates that:

No government shall impose a substantial burden on the religious exercise of a person residing in or confined to an institution . . . even if the burden results from a rule of general applicability.
The Fifth Circuit, however, held that:

[A] government action or regulation does not rise to the level of a substantial burden on religious exercise if it merely prevents the adherent from either enjoying some benefit that is not otherwise generally available or acting in a way that is not otherwise generally allowed.
This makes absolutely no sense to me. How the Fifth Circuit excludes burdens from otherwise generally applicable statutes when the text specifically includes them is a mystery.

Employment Division v. Smith excludes generally applicable burdens from First Amendment protection. The case involved a statute denying unemployment benefits to peyote users, and the religious adherent, a Native American, tried to avoid being denied the benefits because the peyote use was a religious exercise. The "incidental" effects on religion were not enough to invalidate the law.

RLUIPA (following RFRA) is expressly intended to "overrule" Smith. The way the Supreme Court interprets the First Amendment does not protect enough religious exercise, so Congress has for the past 10 years been working on prohibiting the burdens legislatively. But, it seems, the Fifth Circuit is trying to cram RLUIPA' s protection into Smith's box.

The concern seems to be that RLUIPA is going to make all sorts of incidental burdens on religious exercise grounds for failure to comply with the statute. A fair concern. For example, the Eleventh Circuit in Midrash Sephardi dealt with the land use provision of RLUIPA where religious adherents claimed that a zoning ordinance that made them walk farther to their temple was a substantial burden. The Eleventh Circuit held that the burden of walking a little farther--not itself prohibitive or even very onerous--was not "substantial," and so the zoning ordinance did not violate RLUIPA.

In Adkins, the Fifth Circuit could not follow this reasoning and reach the result it did. Rather than just making it more difficult, Mr. Adkins is absolutely unable to hold services on Sunday. So the court stretched "substantial" to not mean a burden on the exercise, but a burden on the state in accomodating the exercise. The court, in effect, turns RLUIPA into Smith by saying that when the burden arises not from targeted discrimination, but a generally applicable statute, it is not "substantial."

Now, RLUIPA doesn't absolutely bar these burdens, and the Texas prison system could argue for a compelling state interest and narrowly tailored means. But the Fifth Circuit is definitely wrong, and this (besides the 4-way circuit split on the issue) should make the Court take the case.

Continue Reading "RLUIPA Case, ex ante" . . .

Friday, June 17, 2005

What to look for Monday...

My guess is as good as anyone's on what will be released this coming Monday, but here goes:
  1. I think Kelo is almost certain to come down. It was argued on February 22, and given the prior precedent of Midkiff, it just wasn't that difficult a case. That said, the delay could be attributable to the possibility that the Court is working out some adjustment to the "Just Compensation" formula which could provide some measure of relief. If that were so, the real winner wouldn't be the Kelo's, New London or Columbia University, but would be Professor Tom Merrill, who argued for such a result in his amicus brief to the Court.
  2. Second, Orff is also almost certain to come down, but who cares...question presented: whether farmers are "intended" third-party beneficiaries of their irrigation district's water service and repayment contracts with the U.S. Bureau of Reclamation and, therefore, entitled to sue the Bureau for breach thereof, as the Federal Circuit has long held, or merely "incidental" third-party beneficiaries and, therefore, not so entitled, as the Ninth Circuit holds in the decision below. I have not read any materials on this case, know nothing about it, but I'm predicting the Ninth Circuit gets reversed. We'll see if conventional wisdom holds.
  3. Rompilla v. Beard, a case dealing with jury instructions and whether a life-without-parole instruction must be given. This is a difficult case, likely to be close, and presenting a number of questions beyond the instruction question. Therefore, it is possible that despite its January argument date, we might see this one put off.
  4. Castle Rock, which is a revisiting of the famous Deshaney case (Poor Joshua) is another decent bet to come down.
  5. Exxon and Ortega, which present an interesting civil procedure question (Whether the supplemental jurisdiction statute, 28 U.S.C. § 1367, authorizes federal courts with diversity jurisdiction over the individual claims of named plaintiffs to exercise supplemental jurisdiction over the claims of absent class members that do not satisfy the minimum amount-in-controversy requirement?) should also be considered a strong possibility.
  6. Finally, the Grokster (file sharing) and VanOrden (commandments) cases are possibilities to be released, but probably will be held over for at least a bit longer.

So if I had to bet, I would say Kelo, Orff, Exxon-Ortega and Castle Rock will be the decisions we are reading Monday. But then again, I always lose when I bet...


Continue Reading "What to look for Monday..." . . .

Thursday, June 09, 2005

"The reports of [Lopez's] death are greatly exaggerated"

I previously mentioned that Raich is largely about the Necessary and Proper Clause and McCulloch. Wickard held that although the Commerce Clause itself couldn't reach the intrastate, nonecomonic activity, the regulation of it was necessary and proper to the broader regulatory scheme, which was valid under the Commerce Clause. So it's McCulloch, not Lopez, that this is really about.

Justice Scalia gets it:
[That Congress can regulate under the Commerce Clause activities that "substantially affect" interstate commerce] is misleading because, unlike the channels, instrumentalities, and agents of interstate commerce, activities that substantially affect interstate commerce are not themselves part of interstate commerce, and thus the power to regulate them cannot come from the Commerce Clause alone. Rather, as this Court has acknowledged since at least United States v. Coombs, 12 Pet. 72 (1838), Congress's regulatory authority over intrastate activities that are not themselves part of interstate commerce (including activities that have a substantial effect on interstate commerce) derives from the Necessary and Proper Clause. And the category of "activities that substantially affect interstate commerce," Lopez, supra, at 559, is incomplete because the authority to enact laws necessary and proper for the regulation of interstate commerce is not limited to laws governing intrastate activities that substantially affect interstate commerce. Where necessary to make a regulation of interstate commerce effective, Congress may regulate even those intrastate activities that do not themselves substantially affect interstate commerce.
In other words, "The reports of [Lopez's] death are greatly exaggerated," and the attacks on Justice Scalia are, I think, also exaggerated. Justice Scalia is principled precisely because he knew that this case was a big deal for federalism, and that by joining the majority he would be undercutting the movement that he has had so much to do with.

It's a reason why Scalia would be a bad Chief (I agree), but not why he is unprincipled.

UPDATE: Orin Kerr points out that Scalia has voted a number of times in favor of the drug users, and that the "social conservative" claim isn't very accurate. He notes Kyllo and Booker, and I would add Employment Division v. Smith, which just a "social conservative" would not have written.

Continue Reading ""The reports of [Lopez's] death are greatly exaggerated"" . . .

Monday, June 06, 2005

Raich- a Mild Surprise and a Lesson

The much anticipated Medical Marijuana case Gonzalez v. Raich came down today. See Majority Opinion here, Scalia's Burkean Concurrence is here, Principal Dissent (SOC, WHR, CT) here, and CT's Originalist Dissent here. It is no surprise that SCOTUS reversed the 9th Cir.'s decisions striking down as unconstitutional the portion of CSA that regulated wholly intrastate non-commercial medical use of marijuana. However, it was mildly surprising to see that Justice Scalia voted with the Court to deal a major blow to Federalism. This is only mildly surprising because Scalia is as Burkean as anyone. His concurrence, at first glance, appears to be an attempt to remain originalist, Burkean and socially conservative.

However, despite his Burkean nature, I still feel like something else, possibly the potential for elevation motivated Scalia's vote. It is possible that Scalia knows that the public and uninformed Senators would see his vote either as approving or condemning the medical use of cannabis. The public (let alone most of the legal academy) doesn't understand Originalism, Judicial Restraint and Stare Decisis. If he would have voted to uphold the 9th Cir. social conservatives with little legal background would have been livid. I myself, before coming to law school and actually learning Constitutional Law, would have been confused if Scalia upheld the California statute. As Professor Bernstein points out, Scalia likely saw that it was more politically expedient to strike down the Statute than uphold it. Hopefully, Scalia's vote will ensure him the Chief's chair enabling him to garner more Pro-Federalist decisions.

Now, I am in no way defending Scalia's decision. A big part of me wishes he would have voted the other way. However, Scalia's Burkean nature overcame his Originalist leanings. I am beginning to believe that Thomas is the only true originalist left on the court. SOC's dissent as Professor Bernstein pointed out, is policy oriented with little reference to original intent/meaning. Scalia's position, while possible to reconcile, calls into question his originalist jurisprudence. Thomas on the other hand looks to the original intent of both the Commerce Clause and the Necessary and Proper Clause.

In the midst of all of this confusion there is a lesson. If you have a goal to overturn some silly unsound decision, you don't go after it with a case that on its face doesn't appeal to the justices. Judicial conservatives who want to overturn Wickard and its progeny need to find controversies that appeal to both the Federalist and social conservative leanings of the Federalist Five. RBG was very successful at doing this while she was head of the ACLU. (E.g. The Thirsty Boys Case). What we need in order to overturn Wickard or to further narrow Commerce Clause doctrine is socially conservative appealing cases.

UPDATE: For those of you interested in Raich- there is going to be a mega-blog discussing Raich. It will feature most of the Volokh Conspiracy, Larry Solum and other Constitutional Law Scholars over at SCOTUS Blog here.

Continue Reading "Raich- a Mild Surprise and a Lesson" . . .