Stopped Clocks - Matthew Franck on Kelo at NRO

[Matthew Franck 06/24 02:20 PM] A stopped clock is right twice a day, as the old saying goes. Today the Washington Post is a reminder of that adage, as Justice John Paul Stevens was a reminder of it yesterday, in his opinion in the Kelo eminent-domain ruling handed down by the the Supreme Court. Over on The Corner, there's been much discussion of the case, and I find myself in sympathy with what Ramesh Ponnuru and Jonathan Adler have said over there. But today's Washington Post presents me with a real case of cognitive dissonance. I find George Will completely unpersuasive, and I'd be prepared to defend every word of the Post's editorial. This doesn't happen to me very often.

Absolutely everything in Kelo turns on a) whether the "public use" requirement can be satisfied by some plausible notion of "public purpose" notwithstanding the fact that some or all of the private property seized finds its way into other private hands; and if so, b) what are the relative positions of the legislative and judicial powers in deciding that it has in fact been satisfied in the taking at hand? Stevens, for the Court, answers a) yes, and b) the judiciary has a very minimal role. Kennedy's concurrence answers a) yes, and b) the judiciary could afford to be, in some vague Kennedyesque way, a little more involved. O'Connor's dissent, joined by Thomas, Scalia, and Rehnquist, answers a) yes, and b) the judiciary must strictly monitor the legislature in such cases. Thomas's dissent answers a) no, unless the public itself has the right to employ the property now placed in new private hands (as with, e.g, a railroad), which makes for the most stringent possible judicial supremacy in answer to b). The four opinions thus span a continuum from judicial restraint to judicial activism, with Thomas, I'm afraid, at the wrong end of the spectrum.

O'Connor's dissent is, frankly, hilarious. It takes a special kind of nerve for her to dissent in this case, when she was the author 21 years ago of the awful ruling in Hawaii Housing Authority v. Midkiff, which endorsed a straightforward land redistribution scheme far worse than what Kelo presents, and she does not repudiate it here. (Rehnquist joined her in Midkiff, by the way — a unanimous ruling.)

As one might expect, Thomas's dissent offers the more formidable originalist challenge to the majority's view. I have long thought that no matter how fresh or how venerable a precedent may be, it is not binding if it is an excrescence on the Constitution. And Thomas wants to scrape off two barnacles, of 20 and 50 years' age. But he doesn't stop there. He reaches back to some turn-of-the-20th-century decisions with which he finds fault, and even (to his credit) reports on the equivocal holdings of various state courts in the very early 1800s; he simply prefers some of these holdings to others, but for no very good reasons. I don't think his arguments are up to the task of opposing all these precedents, especially when he turns (as he did in the Lopez ruling on guns in schools 10 years ago) to Samuel Johnson's dictionary for a definition of the word "use." This is feeble. Foraging in dictionaries is not how one finds the most natural usage of ordinary words in legal texts. I may be tiresome in citing my hero John Marshall, but I can't identify one case in which he turned to a dictionary — and Thomas's favorites were surely available to him.

I'll end where I would have both begun and ended, had I written for the Court in this case. I would have held against the property owners on grounds that the takings clause of the Fifth Amendment has no application to the actions of state and local governments. It is interesting that Thomas, so interested in the original understanding, has nothing to say on the great fraud of the "incorporation" of the Bill of Rights by the Fourteenth Amendment.

This is a grossly dishonest article, attacking Justice Thomas as an "activist" for saying that the Constitution says what it means, and should be obeyed. It also takes an additional, dishonest swipe at Thomas in the closing paragraph by saying he should have opposed the "incorporation" of the Bill of Rights against the states as well as Congress.

What this writer hypocritically ignores, is stare decisis, the doctrine that once the Court has ruled on a subject, that is binding until and unless it is duly reconsidered and reversed. "Incorporation" is settled law in the Court. So, Thomas was entirely correct to apply the terms of the Fifth Amendment to state and local governments.

This article is sophistry. The bottom line is that the Court mugged the constitution like a street thug on a tourist in a dark alley.

Congressman Billybob

Latest column: "An Open Letter to Justice Kennedy"

How can anyone twist the direct meaning of the Nation's Constitution into a government's (whether it is the state, or federal) RIGHT to "take" private property and give it to a developer who in turn will provide a bigger tax return on the stolen property?

Give me a break! I can and will promise this, it will cost any government more money, in terms of life, property, and security than my private land will ever be worth, if that same government comes to "take" steal from me my private land, for any reason! If they "take" steal from me my land for any reason other than a railroad, military fort, arsenal, that is spelled out in the US Constitution, hell will be paid 10 fold on the government who did it!

82nd ABN 1/508th Bn Bco
"fury from the sky"

Foraging in dictionaries is not how one finds the most natural usage of ordinary words in legal texts.

Oh yes it is. That's what dictionaries are for. Word usage changes over time, and it appears that Franck thinks the Framers used modern word usage. If one wants to find the Framer's intent then a dictionary from that time is relevant and necessary.

the awful ruling in Hawaii Housing Authority v. Midkiff, which endorsed a straightforward land redistribution scheme far worse than what Kelo presents,

I have not read that decision, but there is a big difference. The situation in Hawaii is that land almost all of the land is held by a very small number of descendents of the original Hawaiian royal family. Crown lands in any contry are more properly regarded as public land than private land, and that they passed by deed into private hands has created what many would claim is a grave injustice. One can argue both sides of it, but it is really a different case - sort of like if all of the federal land in Alaska ended up in the hands of Seward's heirs or some such.

...had I written for the Court in this case. I would have held against the property owners on grounds that the takings clause of the Fifth Amendment has no application to the actions of state and local governments.

What's wrong with NRO these days? On issues ranging from property rights to drug importation, these "conservatives" keep coming down in support of any extension of government power that serves their corporate buddies.

I wonder what he means by this?

The USSC has interpreted the 14th amendment to apply the Bill of Rights to the States (i.e., the states must guarantee these same rights to its citizens); this is not what the 14th amendment says and many say this was a fraudulent interpretation (many still believe that the 14th was never ratified either). Franck would rule that the 14th amendment does NOT apply the Bill of Rights to the states, thus the 5th amendment taking clause does not apply to states. This leaves the Supreme Court nothing to rule on and state law applies. Thus, states can pass laws to do away with private property, etc., if the citizens elected representatives so choose and citizens of that state can like it or leave.

The whole point of the constitution was to leave states alone except in a very few instances. States would be responsive to its citizens and would be laboratories of political thoughts and actions. If you don't like what your state is doing, pack up and move to one you do. Imagine if a state ended welfare. Taxes would be rebated and programs shut down. What would the reaction be? Some would move there for lower taxes, others would leave there to go to a state where they could receive welfare. Same if a state ended business taxes, business would move there, hire more people who would pay more in income, sales, gas and property taxes, while businesses and jobs left the high tax states. That's the theory anyway and I know because I am a Founding Father.

The great fraud of "incorporation" might mean that the Justices have decided that the 14th ammendment "incorporates" the Bill of Right onto the states in cases where they want to, right to an attorney, but not where they don't want to the 2nd ammendment. There is no rhyme nor reason, just the whim of a particular set of Justices at a moment in time. That is certainly a logical fraud.

"in the very early 1800s; he simply prefers some of these holdings to others, but for no very good reasons."

Well, well, well. This was EXACTLY what I said last week and got flamed for it. Thomas said the Mill Acts, which is the principle guiding this decision, were MISAPPLIED. I said they were perfectly applied and consistent not only with this case but with "squatter's rights" and property taxation, to wit: in America we give WIDE latitude to anyone who develops property (however you define 'develop') and penalize people who "sit" on land or do not develop it as fully.

I said that based on PRECEDENCE, the Court came to the right decision, and that what it would have had to do to overturn this was to not only go against precedence, but to be judicially activist by extending the ruling to "squatter's rights" and property law. They are all together insofar as their elevation of "developmental rights" over "pristine property rights."

Now, finally some legal type has figured this out.

By the way, once you get past the concern for 5th amendment issues, there is a HUGE victory here for states rights. HUGE, because the USSC basically said it would observe state laws in this and other cases.

John, if you are using stare decisis, then the fact is that the mill acts have been upheld repeatedly (which Thomas apparently doesn't get right in his dissent).

There were a lot of ways I think this case should have been argued, but I don't think any longer you can SUCCESSFULLY argue "private property rights." Now, conservatives can whine about that, or they can adapt and figure out what arguments DO work. In this case, I think it would have been the perfect foundation for arguing that "public good" IN FACT is better served by leaving property in private hands. But you have to actively make that case, and certainly can't assume others (especially justices) will see it so.

"I can and will promise this, it will cost any government more money, in terms of life, property, and security than my private land"

Which would have been PRECISELY the better legal argument in this case. The Mill Acts in the early 1800s have already decided that one individual can alter ('take') another person's land if the result is betterment of the "public good." Unless we get a totally different court, conservatives are going to beat their heads against walls until we figure out that the "pristine private property" argument is NOT a winner here.

No, that isn't the point at all. The point is that we have a very long and broad history of rewarding development over pure (what is called "pristine") property rights---the essence of the Mill Acts--and this case was lost the minute one side (the homeowners) were arguing "we have a right to this land" and the other side was arguing "we can develop this for the benefit of the public."

The homeowners' argument should have been, "OUR private property rights, for reasons x, y, and z, will benefit the public far more than having a mall developer come in here." Then give stats on how many of these fail; how a city has NO tax revenue when the homeowners leave; and so on.

The idea that the 5th Amendment doesn't apply to the states is completely idiotic. When a state is admitted into the Union, it has to ratify the Consitution. Article VI of that document states that it (the US Consitution) is the supreme law of the land, regardless of what the several states put into law or the individual state constitutions.

These g-d**med fools would allow the states to become virtual kingdoms, ruled by the cruelest of despots, because for some unG-dly reason, they don't think the U.S. Consitution applies to them, but only to the Fed.gov.

"It is interesting that Thomas, so interested in the original understanding, has nothing to say on the great fraud of the "incorporation" of the Bill of Rights by the Fourteenth Amendment." -Matthew Franck

Jon Roland, over at the Constitution Society:
http://www.constitution.org/col/intent_14th.htm
has researched and written an interesting article on the intent of the people who wrote the Fourteenth Amendment. Here is some of what those politicians said:

The first draft of the proposed Fourteenth Amendment was debated in the House for three days, beginning on February 27, 1866. Bingham, its author, argued on its behalf that previously "this immortal bill of rights embodied in the Constitution, rested for its execution and enforcement hitherto upon the fidelity of the States."

Quoting Barron v. Baltimore (1833), Representative Michael Kerr of Indiana argued that the Bill of Rights limited only Congress. Martin Thayer of Pennsylvania responded: "Of what value are those guarantees if you deny all power on the part of the Congress of the United States to execute and enforce them?" Thayer's argument exhibited the intent of what would become the Fourteenth Amendment.

Bingham wished to "arm Congress with the power to ... punish all violations by State Officers of the bill of rights."

What would become the Fourteenth Amendment was debated in the House on May 8 through 10. Stevens remarked that its provisions "are all asserted, in some form or another, in our DECLARATION or organic law. But the Constitution limits only the action of Congress, and is not a limitation on the States. This Amendment supplies that defect, and allows Congress to correct the unjust legislation of the States."

Either those people meant something contrary to what they were saying was their purpose, Roland is misquoting them, or Franck is full of it.

Disclaimer: Opinions posted on Free Republic are those of the individual posters and do not necessarily represent the opinion of Free Republic or its management. All materials posted herein are protected by copyright law and the exemption for fair use of copyrighted works.