I’ve been thinking a lot about the Kelo v. New London decision (about property rights), and I think that I’ve come to something approaching a conclusion on it.
The majority’s decision is internally consistent. I am convinced by their ruling that public takings for private purposes are constitutional. Both the document itself (in its single sentence on the topic) and precedent support that. I see nothing in it that I can quibble with, and the dissents fail to sway me.
That said, the majority’s decision is not externally consistent. It does not jibe with the actual values of the nation, as I perceive them. On the whole, we don’t believe that private property may be seized for another’s private purposes.
This ruling is right. It’s our laws that are wrong. If we need to amend the constitution on the topic, I can see the sense in that. But I’d much rather see a federal law and state laws on the topic, and see if those, combined with the general unpopularity of such seizures, do the job of preventing such things from happening.
I’ve seen many a Supreme Court ruling in which I disagree with the result, but I cannot find fault with the logic. This is one of them.
I still don’t agree that public “use” means “benefit” or “purpose,” like you pointed out in your first post on the subject. I don’t know that I ever will. What’s your thinking on how it’s logically sound?
If depriving someone of property for the purpose of giving it to someone else so that tax revenues increase is considered “due process of law,” might I not make the case for euthanising people who are on Welfare? Yes, that’s tongue-in-cheek, but indicative of how property rights, listed along with liberty and life in the fifth amendment, have become discounted.
I have to agree with Chris. If a private company is given the property, the public isn’t using the property.
The words “for public use” are there. Anything that effectively removes them has to be an improper interpretation. The interpretation that the tax revenue generated by the property is a public use of the property is absurd. Under that logic, all property can be shuffled around at the whim of a simple majority of government officials (in some cases, only 3 people) if they can make a case that the new use for each property will provide a greater benefit in the form of tax dollars. All private property can benefit the public in some way, so this new interpretation of “use” effectively creates property communism.
The only people who are exempt are those properties that provide so much tax revenue that nothing else could possible exceed it. I doubt Microsoft is too worried about the decision.
I agree, Mark, that the logical extreme of this decision is bad. It’s a path that we don’t want to go down. But “public use” has been defined as “public purpose,” notably in Hawaii Housing Authority v. Midkiff and Berman v. Parker. Each established that economic development is, in fact, public use. The precedent was there. Given that, the court just had to consider of whether the takings were “reasonably necessary” and for “reasonably foreseeable needs.” The court believed that, in the case of one of the land parcels in question, both tests were met.
The majority writes:
They concede that “this is not a case in which the City is planning to open the condemned land…to use by the general public,” and that the lessees won’t be common carriers, but point out that Midkiff established that the “court long ago rejected any literal requirement that condemned property be put into use for the general public.” They go on to point out that the courts viewed “use by the public” in a literal sense in the 1800s, but this eroded in the time since.
This was most notable established in 1906’s Strickley v. Highland Boy Gold Mining Company.
As you can see, the SCOTUS ruling here is the culmination of a century of rulings slowly eroding the concept of “public use.” This is why I say that the ruling is internally consistent, though not externally.
Ah, now I see what you were getting at. I jumped straight from the Constitution to Kelo, which I guess is too far; strange how the interpretation of one word (is ‘use’ defined as ‘purpose’?) can shift the entire mood of a country. But now knowing the other court cases, I can see that this was a long time in the making.
Waldo, ah… I wasn’t quite grasping what you meant by “internally consistent.”
But when it comes down to a choice between internal consistency (i.e. other rulings) vs. the actual Constitution, shouldn’t the Constitution trump? You can have bad rulings that seem to erode the concept of “public use,” but that doesn’t change the words of the Constitution. The Constitution is what it is. You change it by changing it… not by ignoring it bit by bit over the course of 200 years.
See also: states can’t allow medical marijuana because growing a patch in your backyard for your own personal needs has been deemed “interstate commerce” by the SCOTUS.
So basically, Constitutional consistency is dead.
I’d argue that it’s not just the extreme that’s bad. It’s the whole path. And we’re already going down it.
And a good closing quote:
If the SCOTUS is free to ignore the Constitution (e.g. allowing private development to count as “public use” and rending the “public use” requirement impotent), what good is the Constitution? And even if the SCOTUS has to be “internally consistent,” all that means is that Constitutional perversion has to be done gradually, so that no one decision appears to be completely responsible.
But when it comes down to a choice between internal consistency (i.e. other rulings) vs. the actual Constitution, shouldn’t the Constitution trump?
I include the Constitution when I say “internally consistent.” In fact, I should explain that phrase for those playing at home. :)
When taking surveys, there are two crucial metrics: internal and external consistency. Internal consistency asks “Did I count right?” External consistency asks “Can these numbers be extrapolated to reflect the whole of the population that I have sampled?”
I don’t see Kelo as being inconsistent with the Constitution, because I see the great strength of the Constitution is that it is a living document. Stare decisis (“let the decision stand”), in which we rely on precedent, is a premise of this nation’s (and, in fact, much of the world’s) legal system, and there’s no reason that I can summon for why that ought to be any different with the SCOTUS.
Imagine that 90% of the nation believed that children should be forced to recite the Lord’s Prayer in school. If the SCOTUS struck down such a requirement, such a ruling would be internally consistent (with the constitution and with precedent), but externally inconsistent (with the public opinion).