ConfirmThem

By AndrewHyman Comments () / Email this page » / Leave a comment »

I know it's not really "confirmthem" material, but I just wanted to say a few words about the case of Kelo v. City of New London which the Supreme Court decided today.

I was disappointed that none of the justices really got to the heart of the matter, although (as usual) Justice Thomas came closest. The Fifth Amendment prohibits the government from taking private property for public use without just compensation. The issue in this case was whether or not there was a "public use," seeing as how the City of New London wanted to take private property for purposes of economic revitalization.

The majority of the justices found there was a public use, and the minority found there was not. The case was decided 5-4. Dissenting were O'Connor, Rehnquist, Scalia, and Thomas.

All of the justices agreed that, if there is no public use, then the Constitution doesn't allow a taking, with or without compensation. But this is by no means clear from the text of the Fifth Amendment.

In his dissent, Justice Thomas attempted to explain why the absence of a "public use" means that a taking must be unconstitutional. He wrote that, if the government were "free to take property for purely private uses without the payment of compensation…[t]his would contradict a bedrock principle well established by the time of the founding: that all takings required the payment of compensation." Paradoxically, however, Justice Thomas also acknowledged that, “Some state constitutions at the time of the founding lacked just compensation clauses and took property even without providing compensation.‿ So, the prohibition on takings for private use really was not a bedrock constitutional principle, after all. That principle may have usually been adhered to by legislatures, but it was not constitutionally required in some of the states.

Therefore, it would have been plausible for the framers of the Fifth Amendment to require compensation for public use takings, while allowing private use takings just like some of the state constitutions did. After all, the plain language of the Fifth Amendment doesn't say anything about takings for private use.

My own view is that a law unjustly taking from person A to benefit person B for strictly private purposes, is a law that forces A to serve B, thereby creating "involuntary servitude" under color of law, in violation of the Thirteenth Amendment. There's no need to overstretch the Takings Clause.

I might add that it was surprising to see all of the so-called "conservative" justices endorse an extremely controversial principle stated long ago by Justice Samuel Chase: "An act of the Legislature (for I cannot call it a law) contrary to the great first principles of the social compact, cannot be considered a rightful exercise of legislative authority." In other words, judges can strike down whatever legislative acts they please.

UPDATE: I've been studying this stuff a bit more, and it seems to me that James Madison (who wrote the Takings Clause) probably wanted the phrase “for public use‿ to mean “for use by someone other than the original owner.‿ That’s the interpretation that makes most sense to me, given that he wanted the Takings Clause to cover government action that freed slaves, and also wanted it to cover government action that took land from loyalists and gave it to other private citizens. See here. Thus, it still seems to me that the so-called Public Use Clause does not require use by the general public, or require a public purpose. Rather, the words "for public use" were probably meant to distinguish from takings that are motivated by other factors (e.g. penalty against the original owner). It's not a simple issue, and I look forward to studying it some more. Additionally, I don't see why the Fifth Amendment's requirement of "just compensation" must always mean fair market value; there must be a way to increase compensation in order to address one's emotional attachment to one's home.