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Looking on the bright side of Kelo

Kelo is, obviously, a deplorable example of what happens when we start tinkering with property rights to begin with. Once someone says “it’s okay to steal the property of a rich man and give it to a poor man,” it’s not long before the rich man figures out how to exploit that power himself. This is what explains the apparent paradox of the supposedly liberal members of the Court writing an opinion that vastly expands the opportunities for corporate welfare programs at the expense of the poor and underrepresented. The only solution to this problem is to take property rights seriously for everybody, and to recognize the fact that government has no business stealing things from people who earn them, and giving them to people who do not—white or black, rich or poor, politically powerful, or politically weak.

That being said, there is room for optimism. Kelo really does little that Berman v. Parker, 348 U.S. 26 (1954), did not already do. Berman was an obscenity—a bitter decision written by one of the Court’s greatest antagonists to property rights, that asserted such explosive dicta as “when the legislature has spoken, the public interest has been declared in terms well-nigh conclusive,” id. at 32—and it was unanimous.

Hawaii Housing v. Midkiff, 467 U.S. 229 (1984), was almost as deplorable. There, the Court held that public use is “coterminous with the scope of a sovereign’s police powers,” id. at 240, meaning that the clause provided no more protection than the Due Process clause already does. And of course, that involved a practically insurmountable degree of judicial deference: “There is, of course, a role for courts to play in reviewing a legislature’s judgment of what constitutes a public use...[b]ut...it is ‘an extremely narrow’ one.... [D]eference to the legislature’s ‘public use’ determination is required ‘until it is shown to involve an impossibility....’ [W]here the exercise of the eminent domain power is rationally related to a conceivable public purpose, the Court has never held a compensated taking to be proscribed by the Public Use Clause.” Id. at 241. And it was unanimous.

Unless I’m seriously mistaken, Kelo represents the first time since the Civil War that any Justice of the Supreme Court has ever seriously defended the proposition that the Public Use Clause limits the power of eminent domain. This, I think, is reason for optimism. Not only that, I don’t even know of any lower court decisions that criticize Berman outright. I think it is a genuine accomplishment to have four members of the Court so severely criticize cases that are unquestionably controlling, unanimous, and so extremely opposed to the dissenters’ point of view.

Consider—Berman was unanimous and its holding crystal clear. The same can’t even be said of such atrocities as Dred Scott, Korematsu, Plessy, or Nebbia. Can you imagine, fifty years after the holdings in those cases, four justices writing as powerful a dissent challenging those cases? I cannot.

There’s all this talk about the property rights revolution being dead. While it’s true that talk of such a “revolution” was quite overblown to begin with, and that cases like San Remo, Lingle, and Kelo, were all losses for property owners, we can’t lose sight of the fact that legal revolutions start slowly. Justice Field’s dissent in Slaughterhouse was eventually to (more or less) win the day; Justice Holmes’ dissent in Lochner (which nobody joined at the time) was eventually to prevail. In Kelo, we have managed to persuade almost half of the court that the Public Use Clause is meaningful—a proposition that the Supreme Court has never embraced before, and has resoundingly and unanimously rejected in the past.

Making lemonade? Sure. Kelo is a severe loss, and is execrable constitutional interpretation. But baby steps, people. Baby steps.


Kelo and its Progeny

Herewith a glimpse into the future, an excerpt from a chapter on Constitutional law written in, let's say, 2040.

"Antiquated notions of property rights began to yield to broader conceptions of justice and the public good in the wake of the Supreme Court's holding in Kelo v. City of New London (2005). In Kelo, the Court held that public use was not merely use by the public. Encompassed within the public use doctrine was a more expansive "public purpose."  Kelo threw open the floodgates to the concept of public welfare as defined by Justice Douglas decades earlier in  Berman v. Parker (1953): "the public welfare is broad and inclusive ... The values it represents are spiritual as well as physical, aesthetic as well as monetary."

"In the years following Kelo, takings were justified to reduce exclusionary zoning, Shmark v. Country Living, (2009)("the public welfare is undermined when a community can require building lots larger than necessary to support a basic home"); to promote energy development, Zapper v. Wyoming, (2010)("the demand for a domestic energy supply is acute, and the public welfare well served by exploitation of domestic energy reserves"); to promote social and economic equality, Fiori v. Estate of Donald Trump, (2015)("two Americas cannot coexist and yet remain in spiritual harmony")

"Indeed, Kelo's ramifications extended far beyond the takings clause of the Fifth Amendment, representing something like the penumbral reasoning of Griswold v. Connecticut in a bygone era's attempt to establish a right to privacy.

"Flirtations with the such antiquated conceptions as natural law, natural right and all the other bugbears of yesteryear must give way to a more solid and enduring commitment to principles of common good. As we noted in Kelo this Court cannot, and will not, stand in opposition to a well conceived and thoughful articulation of the public welfare." Johnson v. Gonzalez (2009)(school prayer consonant with our history and spiritual values, thus justifying their place in our law and trumping any concerns about establishment of religion). Johnson's conception of public welfare led the Court to uphold the amendment to the Constitution banning gay marriage, Elderton v. Romney (2012)( the public welfare demands recognition of ancient and obvious truths: marriage is between a man and woman and is for the very purpose of procreation). The Court was unwilling, however, to extend Elderton's reasoning beyond the prohibition of gay marriage. "Utah's tax on married couples who choose not to bear children finds no support in the general welfare; marriage may be for the purpose of rearing children, but to penalize a couple for choosing not to procreate is inconsistent with the general welfare." Incanasio v. Fuller (2015).

"The impact of Kelo was perhaps best summarized by Professor Cernovich, dean of the Pepperdine Law School. `By abandoning any concern for the historic purposes of the Constitutional amendments and the philosophic concerns mooring those amendments, Kelo announced a brave new era in American constitutional law: So long as lawmakers can articulate a vision of the public welfare to justify a course of conduct, nothing is forbidden to local government by the federal constitution.'"

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The key in Kelo

There’s one sentence that really does all the damage in Kelo, but so far I haven’t seen people focus on it.

Many times in the past, I have pointed out that the crisis in constitutional law lies in the fact that the judges today do not understand, and/or care about political philosophy. Since the 1930s, it has been a major preoccupation of judges to avoid considerations of political philosophy, and congratulate themselves on doing so. Take Robert Bork, for instance, who absurdly insists that it is not the job of a Justice to do justice. And yet, despite all the talk of judicial deference, judges simply cannot avoid doing political philosophy; it is an inherent part of what they do.

That’s clear from such phrases as “rationally related to a legitimate state interest” or “narrowly tailored to advance a compelling government interest.” What exactly is a legitimate state interest, and how does it differ from a compelling one? The courts have never told us. On the contrary, the Supreme Court of the United States declared twenty years ago that “[o]ur cases have not elaborated on the standards for determining what constitutes a ‘legitimate state interest.’” Nollan v. California Coastal Com’n, 483 U.S. 825, 834 (1987). While grateful for the candor, I submit we should be shocked that, two hundred years after the Declaration of Independence, with the Revolution, the Civil War, World War II, the Civil Rights Struggle, all in our experience, our intellectual leaders don’t know what a legitimate state interest is.

The fact is, they are terrified of that consideration because it would involve taking seriously the fact that government has no “legitimate interest” in taking the property of one person and giving it to another person. To take the property of A and give it to B is simply illegitimate—a violation of the very purposes of government. But, of course, it is the government’s primary occupation today. For the past seventy years, the Supreme Court has simply turned its back on government taking things from people who earn them, and giving them to people who do not, and the result has been the erection of a massive, unconstitutional, illegitimate, regulatory welfare state. For the Supreme Court now to return to taking this issue seriously would involve not only admitting that they were wrong (something none of us likes to do) but seriously challenging the legitimacy of the redistributionary scheme that passes for politics today. As Gary Lawson has pointed out, this would be little short of a revolution. Gary Lawson, The Rise and Rise of the Administrative State, 107 Harv. L. Rev. 1231 (1994).

So here’s the key to Kelo:

Promoting economic development is a traditional and long accepted function of government.

Kelo v. City of New London, 2005 WL 1469529, at *8. Justice Stevens provides no explanation of why “promoting economic development” is a legitimate state interest. He simply asserts that it is “traditional and long accepted.” Yet many things are traditional and long accepted that are not constitutional. Segregation, for example. Stevens goes on to say that there is “no principled way of distinguishing economic development from the other public purposes that we have recognized,” and to support this assertion cites Berman and other cases which stand for the same unsupported proposition, so that he is simply restating that the Court has “long accepted” government taking property from people who earn it and giving it to people who do not. Long accepted—by whom? It certainly was not accepted by those who drafted and ratified the Constitution, and it is the Constitution—not whatever violations of it that people have “long accepted”—that the Court ought to regard in its deliberations. As Frederick Douglass said, “nothing is settled that is not right.”


Is Masturbation Relevant?

I am preparing for a sentencing argument later today. My client has been convicted by a jury of sexually assaulting a fourteen year old girl. This took place more than a decade ago. My client was about 40 years old at the time. The girl was the daughter of a woman with whom the man was having an affair.

Under Connecticut law, prior to sentencing a presentence report is completed by a probation officer. One part of preparation for sentencing is to check the accuracy of the report.

In this brave new therapeutic world of ours, my client will be required to participate in sex offender treatment when released on parole, if he lives long enough to complete his sentence. So I should not have been surprised to read the following: "The offender reported that he first began masturbating at eighteen years old. ... Although he could recall approximately when this masturbation behavior began, he indicated that he could not recall how often this occured. ... When inquiring when the last time he actually masturbated, ..."

Give me a break.

Sex offender treatment is most often a joke. We have set lose an army of scantily educated social workers to police the desire of people who have made mistakes. And what do we get? Reports on how often a man masturbates?

Sexual desire isn't a crime. At least for most of us. Sure, it can be misdirected, and a crime can occur. But masturbation? I suspect the prisons aren't large enough to hold all the offenders.


Feeney Amendment and Separation of Powers

Today the Eighth Circuit held that the Feeney Amendment's requirement that the government approve of § 3E1.1(b) could not be applied retroactively: the requirement violated the Ex Post Facto Clause. (Details here).  The requirement also violates separation of powers.

The doctrine of separation of powers imposes structural limitations on each branch's exercise of power, is implicit in our constitutional design, and dates back to Montesquieu.  The Founders were intent on creating a Constitution that limited each branch's power because the concentration of the legislative, executive, and judicial power would lead to tyranny. It is the nature of government to accumulate power for itself. By dividing this power, in the words of James Madison, ambition would "be made to counteract ambition."  Certain provisions of the Feeney Amendment allow the executive branch to encroach on the judicial power and should be struck down.

Another issue arising under separation of powers asks whether vesting significant sentencing decisions in the hands of the executive impermissibly abrogates the judicial power. Under the American constitutional system, there is to be a strict separation of powers between each co-equal branch of government. But in practice, "[w]hile people sometimes refer to the three branches of the federal government as a three-lawyer cake, it is more accurate to think of it as a marble cake."[1] Thus, a prosecutor's decision on what charges, if any, to bring will ultimately impact the available options at sentencing.[2] And the prosecution holds almost absolute discretion in this area.

However, the Feeney Amendment conditions the trial court's sentencing decision upon prosecutorial approval. For example, under §5K3.1 the judge may issue an early disposition reduction only "[u]pon motion of the Government" and when "authorized by the Attorney General of the United States and the United States Attorney for the district in which the court resides."[3] Under §3E1.1(b)(1), the trial court may give the defendant an additional base level increase of one only "upon motion of the government [ ]." This conduct seems to confer upon the executive power beyond its proper prerogative and almost amounts to an "executive veto" of judicial sentencing decisions. And like the "legislative veto" Congress improperly reserved for itself in INS v. Chadha, the executive's effort to dictate sentencing decisions should be struck down as unconstitutional.


[1] John E. Nowak & Ronald D. Rotunda, Constitutional Law §3.5 (6th ed. 2000). 
[2] Bordenkircher v. Hayes, 434 U.S. 357 (1978) (finding no Due Process violation when a state prosecutor reindicts on more serious offense when the defendant did not plea guilty to the crime with which he was originally charged.) 
[3] U.S.S.G. §5K3.1.


The Forgotten Constitution

Two shell games converged in the Supreme Court's Kelo decision: the hoax of sovereign immunity, and the dormant police power. Both threaten to make a mockery of the Bill of Rights and of the liberties we enjoy as Americans.

Kelo holds that a municipality may use its eminent domain power to seize property for private development. Who gave the sovereign the power to take our homes?

Certainly not the founders. We cannot even be required to quarter soldiers in our homes. Warrants are necessary to enter our homes. We are secure in our persons and papers ... Sort of.

What's sovereign immunity have to do with it?

One of the greatest villains in American law is William Blackstone. His Commentaries were the the mother's milk of colonial legal education. Smuggled in with the work was a medieval hold over, sovereign immunity. You know the maxim: What pleases the prince has the force of law.

Our courts have given shape to this doctrine, making government unaccountable to us in many ways.

What of the dormant police power?

The best and most profound constitutional theorizing is typically done at the federal level, interpreting the meaning of a government of limited powers. Where's that leave the states? With seemingly  unlimited power. We say of the federal power that it is limited; the police power, by contrast, is assumed to be unlimited. Why? The common law's secret affair with Blackstone's succubus, sovereign immunity.

Kelo is bad, terrifying law, the sort of law over which a person should think incendiary thoughts. We revolted against Britain over far less.


The Kelo decision, or, does property mean anything anymore?

What I think is the most important political lesson to be gained from Kelo is to recognize the fact that Justices Stevens, Ginsburg, Breyer, and Souter—the so-called “liberal” judges; judges often described as defenders of the common man, as opposed to Justices Thomas, Rehnquist, or Scalia, often called conservative defenders of corporate greed and power—were in the majority in upholding the ability of wealthy and powerful corporations to steal the homes of working class people for their own private profit. This outcome surprises only those who do not understand that property rights are the most fundamental of all rights, and are more important for the poor than for the wealthy. The wealthy, after all, can swing the political power to protect their interests. But the poor need courts that will respect and enforce their property rights.

The definition of a “right” is something that is not subject to political control; as Justice Jackson put it, “The very purpose of a Bill of Rights was to withdraw certain subjects from the vicissitudes of political controversy, to place them beyond the reach of majorities and officials and to establish them as legal principles to be applied by the courts.” West Virginia State Board of Education v. Barnette, 319 U.S. 624, 638 (1943). This is as true of property rights as of any other kind of rights: if you have to ask a bureaucrat’s permission to do something with your land, then it’s not really your land—you have only a permission, not a right.

Today’s decision in Kelo v. New London transforms property rights into brittle government permissions. This much should be absolutely clear: your home is for sale, whether you know it or not, to private developers able to lobby local government officials. If those officials decide to take your home and transform it into a Costco, or a Home Depot, or a Wal-Mart, they may do so at any time, subject only to annoying procedural hassles, but without any serious limitation by such a thing as property rights. Justice Stevens writes that:

The disposition of this case therefore turns on the question whether the City’s development plan serves a “public purpose.” Without exception, our cases have defined that concept broadly, reflecting our longstanding policy of deference to legislative judgments in this field....  [T]he needs of society have varied between different parts of the Nation, just as they have evolved over time in response to changed circumstances. Our earliest cases in particular embodied a strong theme of federalism, emphasizing the “great respect” that we owe to state legislatures and state courts in discerning local public needs. For more than a century, our public use jurisprudence has wisely eschewed rigid formulas and intrusive scrutiny in favor of affording legislatures broad latitude in determining what public needs justify the use of the takings power....

This, of course, is not at all what the Constitution actually says. It says that private property may only be taken for “public use,” and not for private use at all. To exploit government power to seize property for the benefit of some politically favored private group is the very definition of abuse—it undermines the entire purpose of government, in fact, as Madison made clear in Federalist 51: “In a society under the forms of which the stronger faction can readily unite and oppress the weaker, anarchy may as truly be said to reign as in a state of nature, where the weaker individual is not secured against the violence of the stronger.” After Kelo, it is clear that the Constitution places no meaningful restrictions on the government’s power to do just this: to seize the homes of political minorities and give them to political majorities.

Justice Stevens’ appeal to the “general benefit” produced by such redevelopment projects is a mirage. All government takings of private property can be colorably described as conveying some sort of general benefit on the public at large. This is particularly true of “redevelopment” projects, glossed over by flashy advertising by expensive public relations firms and sold to government agencies by slick professionals.

All government actions are already required to have some rational connection to public benefits anyway, under the Due Process Clause. Today’s holding says that the “public use” clause—despite its obvious literal meaning—means nothing more than the Due Process Clause’s rational basis interpretation. (For those paying attention, this violates the fundamental legal principle that constitutional language should not be rendered redundant or ineffective.) And as we all know, rational basis means anything goes.

Your right to property now hang on your ability to influence the political process. Rather than being “withdrawn from the vicissitudes of political controversy,” your home is now in the ring, to be bargained over by political parties and taken by the votes of city council members. In other words, we have returned to what Thomas Hobbes described as the intolerable state of nature in which “there [can] be no propriety, no dominion, no mine and thine distinct; but only that to be every man’s that he can get: and for so long, as he can keep it.” Thomas Hobbes, Leviathan 101 (M. Oakeshott ed., 1962) (1651).

You can read my brief in Kelo here.

Update: Justice O’Connor’s dissent begins with a fantastic passage:

Under the banner of economic development, all private property is now vulnerable to being taken and transferred to another private owner, so long as it might be upgraded–i.e., given to an owner who will use it in a way that the legislature deems more beneficial to the public–in the process. To reason, as the Court does, that the incidental public benefits resulting from the subsequent ordinary use of private property render economic development takings “for public use” is to wash out any distinction between private and public use of property–and thereby effectively to delete the words “for public use” from the Takings Clause of the Fifth Amendment. Accordingly I respectfully dissent.

The only thing wrong with this is the penultimate word.


"Judicial Activism"

Keenan Kmiec has a fascinating article tracing the meaning of "judicial activism" entitled, appropriately, "The Origin and Current Meanings of 'Judicial Activism.'"  It's well-written, short, and as the table of contents demonstrates, comprehensive:

I.    Early History of the Term "Judicial Activism"      
    A. In Search of the Earliest Use      
    B. First Recorded Use: Arthur Schlesinger in Fortune Magazine       
    C. Early Usage of "Judicial Activism"       
    D. Early Scholarly Examination of Judicial Activism       
    E. First Judicial Use of "Judicial Activism": Judge Joseph C. Hutcheson, Jr
    F. Other Noteworthy Discussions of "Judicial Activism" in Judicial Opinions
II.   Definitions of Judicial Activism       
    A. Striking Down Arguably Constitutional Actions of Other Branches  1463       
    B. Ignoring Precedent         
        1. Vertical versus Horizontal Precedent      
        2. Constitutional versus Statutory versus Common Law Precedents      
    C. Judicial Legislation       
    D. Departures from Accepted Interpretive Methodology    
    E. Result-Oriented Judging

Check it out.


Post-Lawrence Challenge to Incest Laws

Are incest laws constitutional?  A unanimous three-judge panel of the Seventh Circuit said, Yes.  Muth v. Frank, No. 03-3984, Slip op. at 13-17 (7th Cir. June 22, 2005).  Or maybe.   Id. at 17 ("[B]ecause this case is here on habeas review, the only question before this court is whether Lawrence announced a new rule proscribing laws prohibiting the conduct for which Muth was convicted.")  Of course, if the "only question before this court" was the habeas issue, then why did the panel used 4.5 pages to wax on about the non-Teague aspects of Lawrence?

UPDATE: Via How Appealing is this functioning link.


Judge Noonan and Irons v. Carey

Irons v. Carey is a closely-watch pending Ninth Circuit case.  The issue in Irons is "whether the AEDPA unconstitutionally prescribes the sources of law that the Judicial Branch must use in exercising its jurisdiction and whether under the separation of powers doctrine this could should decline to apply the AEDPA standards in this case."  I think that Judge Noonan today hinted at his possible Irons v. Carey analysis. 

On pages 7458 - 7463 of this slip opinion, Judge Noonan thoughtfully critiqued - but dutifully applied - the AEDPA.  But on page 7458 he wrote: "Habeas corpus is a fundamental right secured by the Constitution of the United States."

By treating habeas as a fundamental right, instead of treating it as something that merely can't be suspended, he opens up habeas analysis to another world.  If the right to habeas corpus merely covers the right to not have it suspended, then the analytical question is: "Does the AEDPA suspend the writ of habeas corpus?"  By treating habeas as an affirmative right, Judge Noonan can dig into the juicy separation of powers question.

Of course, it could be loose language.  But I suspect that Judge Noonan knew what he was writing, especially in light of Irons.

Thoughts?