Connecticut’s brief in Kelo v. New London—the big eminent domain case—was filed today. It’s too long to post, but one argument in particular strikes me as glaringly wrong. “[T]he primary purpose of the Takings Clause,” the brief says (p. 12), “is not to act as a substantive restraint on government behavior, but to assure compensation for any affected property owners should the government choose to exercise its eminent domain power; see Eastern Enterprises v. Apfel, 524 U.S. 498, 545 (1998) (Kennedy, J., concurring).” That is entirely untrue.
First of all, the Takings Clause is made up of two clauses, really—the public use clause and the just compensation clause. The public use clause holds that government may take property only for a public use. What is the difference between a public use and a private use? You cannot answer that question without imposing substantive restraints on government behavior. It’s just not logically possible. And if the primary purpose of the Takings Clause was not to impose such restraints, why would the public use clause exist at all? The Constitution would just read “private property shall not be taken but with just compensation.” The state’s argument renders the public use clause meaningless, and it must therefore be incorrect.
Secondly, that is not at all what Justice Kennedy said in his Apfel concurrence. Here’s what he actually wrote:
If the plurality is adopting its novel and expansive concept of a taking in order to avoid making a normative judgment about the Coal Act, it fails in the attempt; for it must make the normative judgment in all events. See, e.g., ante, at 2153 (“[T]he governmental action implicates fundamental principles of fairness"). The imprecision of our regulatory takings doctrine does open the door to normative considerations about the wisdom of government decisions..... This sort of analysis is in uneasy tension with our basic understanding of the Takings Clause, which has not been understood to be a substantive or absolute limit on the government's power to act. The Clause operates as a conditional limitation, permitting the government to do what it wants so long as it pays the charge. The Clause presupposes what the government intends to do is otherwise constitutional.... Given that the constitutionality of the Coal Act appears to turn on the legitimacy of Congress’ judgment rather than on the availability of compensation...the more appropriate constitutional analysis arises under general due process principles rather than under the Takings Clause.
In other words, previous takings cases have tried to avoid making “normative” judgments—that is, courts have avoided saying what government is not allowed to do—and as a result, takings cases have “presuppose[d that] what the government intends to do is otherwise constitutional” before continuing with the analysis of rational relationships. But that doesn't mean that Kennedy thinks the court should ignore normative judgments. Quite the opposite—he says it is impossible to avoid doing so. He then proposes to solve this conundrum by using a due process analysis before proceeding to the takings analysis. That proposal has never been accepted by the Court, which has always used both together and—even in Berman!—employed “normative judgments” when addressing “public use,” since it has applied the same “legitimate state interest” standard in both. But whether under the Berman standard or under Justice Kennedy’s, the answer is the same: if the power of eminent domain is “coterminous with the scope of a sovereign’s police powers,” then normative judgments, i.e., the legitimate state interest test, must apply just as much to one as to the other. The state’s citation to Kennedy’s Apfel opinion is misleading—and that’s not even mentioning the fact that Apfel was a regulatory takings case, and the public use analysis is different, and possibly not even applicable, in those, as opposed to outright eminent domain cases.
Everyone just wants so badly to avoid addressing “normative” issues, cause they’re all so freakin’ scared of Lochner. Well, sorry to break this to you, but you cannot say what a legitimate state interest is without applying political philosophy. And if you cannot take that step, then you cannot decide a rational basis case or a strict scrutiny case or any case in between.
Later on, we get this (p.17):
[The public use clause] almost assumes that any private property taken by eminent domain would ipso facto be for a public use.... This construction is borne out by the history of the Clause. In an earlier draft of the Fifth Amendment, James Madison proposed that the Clause should read, "[no] person shall be...obliged to relinquish his property, where it may be necessary for public use, without just compensation...." Madison’s draft—which was amended without comment by the House to its present form--arguably places more emphasis on the public use question. See Matthew P. Harrington, “Public Use” and the Original Understanding of the So-Called “Takings” Clause, 53 Hastings L.J. 1245 (2002).... [O]ur founding fathers chose, by their alteration of Madison's proposal, not to endorse such an intrusion into what was thought to be a legislative area (although they did reject purely private takings).
Note the parenthetical! The whole point of the case is that purely private takings are prohibited and that government’s blessing of such takings doesn’t make them acceptable. Moreover, you see here no citation to Madison’s other statements, no citation to the case law—no reference, for instance, to Calder v. Bull, or VanHorne’s Lessee v. Dorrance or Wilkinson v. Leland—indeed, the oldest case that they cite is from 1866! This may be due to the fact that they rely on Harrington’s silly little article, which, as I pointed out in my Southwestern University Law Review article, also fails to cite these cases. They fail also to cite such statements as this, from James Madison:
There is no maxim in my opinion, which is more liable to be misapplied, and which, therefore, more needs elucidation, than the current one that the interest of the majority is the political standard of right and wrong. Taking the word “interest” as synonymous with “ultimate happiness,” in which sense it is qualified with every necessary moral ingredient, the proposition is no doubt true. But taking it in the popular sense, as referring to immediate augmentation of property and wealth, nothing can be more false. In the latter sense, it would be the interest of the majority in every community to despoil & enslave the minority of individuals.... In fact it is only reestablishing, under another name and a more specious form, force as the measure of right.
Letter to James Monroe (Oct 5, 1786), in The Complete Madison 45 (Saul Padover ed., 1953).
But then, that is precisely what the state of Connecticut wants to do. By arguing that a legislative decision to condemn property makes it ipso facto a public use—ipso facto!—they are arguing nothing less than that might makes right; that saying it makes it so; that the legislature may do whatever it chooses to call legitimate. But if that were the case, why would the founders “reject purely private takings”?