Scalia criticizes Kelo ruling on private property

Chicago Daily Law Bulletin ^ | October 19, 2011 | Jerry Crimmins

[1010RD]

U.S. Supreme Court Justice Antonin G. Scalia said Tuesday he does not believe the high court's "infamous" Kelo decision of 2005, which held that cities can take land from some residents with compensation and give it to others for economic development, will be lasting law.

"I do not think the Kelo decision is long for this world," Scalia said in a speech to Chicago-Kent College of Law.

He compared the court's decision in Kelo v. New London, Conn., No. 04-108, to the Dred Scott case, which held that slaves were outside the protection of the U.S. Constitution, and to the court's decision on abortion, Roe v. Wade.

The high court has made "many mistakes" in its 200 years, Scalia told the audience. But he said the court has made very few mistakes in political judgment that provoked overwhelming public resistance.

Regarding the abortion decision, Scalia said as an aside, "in the circles in which the justices traveled, abortion was considered no big deal."

But Kelo, Dred Scott and Roe v. Wade were the three cases he mentioned that he said provoked great, public resistance.

Some surveys show as much as 80 percent of the public opposes the Kelo decision, Scalia said.

He said he is not arguing that high court decisions should be based on public opinion.

His point instead, he said, was that "the form of analysis through which judges attempt to shape the Constitution" to what they consider the needs of society "are doomed to fail."

In answer to a question from the audience about the politicization of the U.S. Supreme Court, Scalia responded:

"The court has not been politicized. The process of selecting judges has become politicized."

This is because, Scalia said, the American public figured out that what the Supreme Court was doing with the theory of the "living Constitution" subscribed to by some justices was "rewriting the Constitution."

If justices intend to rewrite the Constitution, Scalia said, then the selection process for justices "ought to be politicized" and he would prefer that rather than allow the Constitution to be rewritten without interference.

Scalia addressed a full house in the Chicago-Kent auditorium as part of a half-day conference on "Judicial Takings: Property Rights and the Rule of Law."

He delivered a strong defense of property rights under the Constitution.

And he said the Fifth Amendment's prohibition against taking private property for public use without just compensation applies to judges as well as to legislatures and the executive branch.

Scalia's specific subject was the court's decision last year in Stop the Beach Renourishment Inc. v. the Florida Department of Environmental Protection. No. 08-1151.

As background, Scalia said, "the framers attached a good deal of importance to property rights, much more than most modern societies," including American society today.

The framers of the Constitution "would be astounded by the modern idea" in the U.S. "that substantive due process applies to life and liberty, but not property," he said.

In the Florida case, he said, the state of Florida decided to restore some beaches that had been eroded. The state intended to deposit new sand so that the beaches would extend 75 feet further into the ocean.

The state of Florida would own the new land created. The beachfront property owners would continue to own their land up to the mean high water line that existed before the state extended the beach.

Beachfront property owners sued on several grounds, including that the state was taking without just compensation their right to have their property touch the water.

The Florida Supreme Court held that the rights the petitioners claimed, including the right to have their property touch the water even after the beach was extended by the state, did not exist.

In an 8-0 decision, the high court ruled that Florida Supreme Court's action was not a violation of the "takings clause," Scalia said.

Justice John Paul Stevens, who owned beachfront property in Florida, recused himself.

But a much larger issue divided the high court in this same case, Scalia said, namely "whether judicial decrees are ever subject to the takings clause in the first place."

The Stop the Beach Renourishment decision was written by Scalia and concurred in by Chief Justice John G. Roberts Jr. and Justices Samuel A. Alito Jr. and Clarence Thomas.

It held that judicial decisions are subject to the takings clause of the Fifth Amendment.

Four other justices, Anthony, M. Kennedy, Sonia M. Sotomayor, Stephen G. Breyer and Ruth Bader Ginsburg wrote in separate opinions that the plurality decision that judicial rulings were subject to the takings clause went too far and was unnecessary in the current case.

Scalia disagreed. "We didn't take the case to decide Florida law, for Pete's sake," he told the audience at Chicago-Kent.

"There is no excuse not to tackle that question head on. We need to know what judicial questions do violate the takings clause."

Scalia said he found the reasons given by four of his colleagues for "avoiding the key question" troubling.

Two of his colleagues argued, he said, apparently referring to Kennedy and Sotomayor, that when judges decide cases such as the Florida case, the controlling principle could be whether the seizure of property violates due process.

Scalia said he suspects that some justices want to make due process the controlling principle in such matters because that concept is "flabby" and creates "a reservoir of power" for judges in their decision-making.

It was in this vein that he criticized the high court's 2005 ruling in Kelo , in which Scalia dissented. He called that decision "infamous."

Chicago-Kent's Dean Harold J. Krent, who introduced Scalia, said every constitutional law course in America discusses Scalia's theory of constitutional interpretation. Krent said it was hard to think of another high court justice who has been so influential.

Scalia's appearance at the conference was hosted by Chicago-Kent in partnership with the Jack Miller Center, a nonpartisan, nonprofit foundation in Philadelphia "for teaching America's founding principles and history."

[1010RD]

Every conservative should know about and understand the issues surrounding substantive due process.

It's the reason we must win in 2012.

[Paladin2]

Good point. Maybe Romney needs to have his feet held to the fire on the required judicial philosophy of potential SCOTUS appointments.

[Steely Tom]

Why does he have to be so judgemental?

[Sherman Logan]

the Dred Scott case, which held that slaves were outside the protection of the U.S. Constitution.

It was worse than that. It held that people of African descent, slave or free, were not and never could be under the protection of the Constitution. That the Constitution itself excluded them, so no law of Congress could alter it. Presumably it would take an amendment to change this.

As it turned out, it took 640,000 dead Americans and several amendments to reverse the decision.

[wolfpat]

Thanks for starting my day off with a good laugh.

[Kenny Bunk]

How come no one ever asks Tough Tony about Article II, the definition of a "Natural Born Citizen," and why the Black-Robed Bum Kissers have taken every opportunity to escape and evade their constitutional duty to answer the properly presented question?

Yo, Tony, "What is a Natural Born Citizen?" Ask Thomas. Ask Alito. Ask Roberts. Get back to us on that, willya. Before the election?

[Old Teufel Hunden]

Kelo has to be the worst decision the Supreme court has made since Roe v Wade. The joke of it is that Stossel did a program a couple years ago to update us. There was some type of store that was going into this area. Well, the whole place is one big wasteland and the store never went up. Susette Kelo and her fellow homeowners were kicked out of their houses for nothing.

[Tribune7]

Shout it out Scalia and don't forget this stupid decision.

[nathanbedford]

This article reminds me once again of an incident that I've never forgotten which occurred 50 years ago in a college political science seminar. Please understand the time is 1962 thereabouts and the seminar consisted of four professors and about five students. The subject for discussion was the necessity to a democratic society to sustain the right to hold property.

I was virtually alone in that environment defending the proposition that some of our rights contained in the Bill of Rights are not less crucial than other enumerated rights. I was not yet 20 years old and Barry Goldwater had not yet run for office, so I had nothing to go on except instinct, an inchoate even adolescent sense that property must somehow be defended not only against the mob but against the government. Somehow it was important to me to see that the right to hold and dispose of property was critical to the very fabric of society.

As I look back on that academic experience of half a century ago, it is uncanny how the issues that came up session after session presaged the assault by the left on our constitutional rights which proved unhappily very powerful during the ensuing decades.

We are all aware that the liberal impulse to impose obligatory health care on all of us, for example, goes back many decades. I believe the same is true over most of the Liberal assault on our basic liberties which has occurred since at least Woodrow Wilson.

Reflecting back over the decades on issue after issue, one is hard-pressed to believe that these matters are not somehow spread through a networking system-I deliberately refrain from using the word conspiracy-among academics, liberal politicians and the media to bring these things bubbling up to the surface. Today, due to technology and the splendid selfless service of Jim Robinson in creating this forum, we have our own instant reaction force to combat this insidious and relentless attack.

Finally, one can never forget the condescension with which these liberal academics not only dismissed but belittled every conservative position including a defense of the right to hold property.

[government is the beast]

“ Unlike the power to regulate activities that have a substantial effect on interstate commerce, the power to enact laws enabling effective regulation of interstate commerce can only be exercised in conjunction with congressional regulation of an interstate market, and it extends only to those measures necessary to make the interstate regulation effective. As Lopez itself states, and the Court affirms today, Congress may regulate non economic intrastate activities only where the failure to do so “could … undercut” its regulation of interstate commerce. ... This is not a power that threatens to obliterate the line between “what is truly national and what is truly local.”

This is this black robed terrorists absolutely ridiculous reasoning to facilitate the continued failure of the War on some Drugs and some drug users in the Gonzales v. Reich case. “That could/might”? Are you kidding me! This was his pathetic attempt to rationalize government expansion in to areas of regulation that are totally un Constitutional, allowing the commerce clause to cover non interstate activity that had no commerce involved! Where in the commerce clause are the words “could/might’? They are not there. Next he will want to put people in jail who “could/might” commit a crime! This reasoning allows the federal government to regulate just about anything as elaborated by Justice Thomas in his dissent in the case. ”

[Old Teufel Hunden]

Nate,

Your thoughts are summed up for me in one image that has been burned in my mind from the 1992 LA riots. I remember seeing all the idiot looters on the evening news and one Korean store owner on top of his boarded up store building with some type of automatic rifle defending his property against them. I remember thinking that is quintessentially American. A lone man, protecting his home and property from evil.

[nathanbedford]

I remember that film clip well. I hope we don't come to it again.

[bvw]

That's an important point.

Black people of African Descent were ruled to be sub-human, never worthy of the rights of full citizenship. And that ruling was supposed based in what Taney wrote was the original intention of the founders.

Chief Justice Roger B. Taney was also considered among the finest legal minds if not the the finest legal mind of that era.

The Dred Scott ruling caused the first and only resignation from the Supreme Court over principle. The Judge who resigned, Benjamin Robbins Curtis was also a fine legal reasoner. Justice Curtis was also the first Supreme Court Justice to have earned a law degree from a law school.

With Justice Scalia's remarks as reported, we now see that he, and likely other Justices at his level have come to realize that the courts and The Law (as code and process) are NEVER outside the sway of politics, and indeed that the selection of Judges properly considers politics!

[nathanbedford]

And another thing...

Those of us of a certain age or older will remember those times and the humiliation we Goldwater-ites sustained over and over in virtually every setting. With this in mind we understood immediately why Rush Limbaugh went to such absurd lengths to proclaim himself smarter than the Liberals and how he could operate with "half his brain tied behind his back just to make it fair."

My theory is that it was not respectable, indeed it was disreputable, to be a conservative in many circles, especially academic circles, for decades. To a large degree it remains so. Limbaugh knew he must compensate for the inevitable attempt by liberals to dismiss him as a clown. He was right to defend his image at every turn.

Would that George Bush was nearly as fastidious about protecting his own image and the image of a conservative president.

[Old Teufel Hunden]

I don’t know how many times I have been harranged by progressives because they have told me that Jefferson put in the Declaration that we are endowed with the rights of life, liberty and the pursuit of happiness. Of course they always leave out the endowed by creator part. Be that as it may they go on to point out that he did not mention life, liberty and property. I remember reading somewhere that in his original draft it was life, liberty and property but Benjamin Franklin or someone revised it to say pursuit of happiness. It doesn’t matter because the 2nd, 3rd, 4th and 5th amendments of the BOR certainly have a penumbra of private property rights.

It is interesting that Thomas Paine (the only leader of the revolution progressives liked) seemed to believe that every man has a right to life, liberty and property. He helped write the Girondin constitutional project that was presented to the French National Convention in 1793. In it’s Declaration of Rights section, it says that man has a right to property. I always like to needle the left with this. Even though I know that Paine later on wrote of redistrubitive wealth policies. He was somewhat of a contridiction in my opinion.

[Old Teufel Hunden]

In regards to post 14, it is always easier for the left to disregard their opponents as stupid, idiots etc.. That way they don’t have to engage them in substantive debate which they will most likely lose.

[traditional1]

I truly believe that the "Taking" of earners' money BASED ON LEVEL OF INCOME, is Un-Constitutional, myself.

How about the 14th Amendment's "equal treatment under the Law" clause, as penalizing success with a Progressive Income Tax surely was not the intent of the Framers, either?

We are now in a wealth-redistribution mode that has festered over the years, and the Government has become so bloated, so filled with Lawyers, and so filled with Activist Judges, that we CANNOT EXPECT the "Legal" system to decide anything, but for who gets what share of the spoils of a Court Case, and whose pockets will be lined with other people's money.

There truly is no "Justice" anymore.

We need to bring back lynching, tar and feathering, and community Justice.

[Paine in the Neck]

Good point. Maybe Romney needs to have his feet held to the fire on the required judicial philosophy of potential SCOTUS appointments.

This is a key issue with Romney and I've not seen very much discussion of it. GOP Presidents have too often squandered their opportunities to advance the constitutional cause via court appointments. We had a good run with W after a big scare but the next administration can really have an historic effect. Romney's record of judicial appointments in Mass was appalling. I believe he's weaker on this than even RomneyCare.

[NFHale]

“...property must somehow be defended not only against the mob but against the government...”

And now we are faced with the gruesome scenario that the mob IS the government, and the government IS the mob. Hard to tell them apart.

[NFHale]

“...quintessentially American. A lone man, protecting his home and property from evil...”

Not much different from the settler out west in the mid-1800s being attacked by savages is it; savages either in war paint, or cattle/horse thieves, or railroad enforcers looking to move people off “the right of way”.

The LA riots were a small picture of what would happen if the SCOTUS removed our feckless Marxist from his perch. I think that is the reason why they have ducked and dodged the issue, preferring instead to let the election process remove him.

But what happens if he refuses to go? I guess we’ll see...