Just Wait Till Tilman Fertita and Mayor White See This
SUSETTE KELO, et al., PETITIONERS v. CITY OF NEW LONDON, CONNECTICUT, et al. (U.S. Supreme Court)
Justice Thomas dissenting:
There is no justification, however, for affording almost insurmountable deference to legislative conclusions that a use serves a "public use." To begin with, a court owes no deference to a legislature's judgment concerning the quintessentially legal question of whether the government owns, or the public has a legal right to use, the taken property. Even under the "public purpose" interpretation, moreover, it is most implausible that the Framers intended to defer to legislatures as to what satisfies the Public Use Clause, uniquely among all the express provisions of the Bill of Rights. We would not defer to a legislature's determination of the various circumstances that establish, for example, when a search of a home would be reasonable, see, e.g., Payton v. New York, 445 U. S. 573, 589-590 (1980), or when a convicted double-murderer may be shackled during a sentencing proceeding without on-the-record findings, see Deck v. Missouri, 544 U. S. ___ (2005), or when state law creates a property interest protected by the Due Process Clause, see, e.g., Castle Rock v. Gonzales, post, at __; Board of Regents of State Colleges v. Roth, 408 U. S. 564, 576 (1972); Goldberg v. Kelly, 397 U. S. 254, 262-263 (1970).
Still worse, it is backwards to adopt a searching standard of constitutional review for nontraditional property interests, such as welfare benefits, see, e.g., Goldberg, supra, while deferring to the legislature's determination as to what constitutes a public use when it exercises the power of eminent domain, and thereby invades individuals' traditional rights in real property. The Court has elsewhere recognized "the overriding respect for the sanctity of the home that has been embedded in our traditions since the origins of the Republic," Payton, supra, at 601, when the issue is only whether the government may search a home. Yet today the Court tells us that we are not to "second-guess the City's considered judgments," ante, at 18, when the issue is, instead, whether the government may take the infinitely more intrusive step of tearing down petitioners' homes. Something has gone seriously awry with this Court's interpretation of the Constitution. Though citizens are safe from the government in their homes, the homes themselves are not. Once one accepts, as the Court at least nominally does, ante, at 6, that the Public Use Clause is a limit on the eminent domain power of the Federal Government and the States, there is no justification for the almost complete deference it grants to legislatures as to what satisfies it.
What is entertaining about the outcome of this case is the consternation it has raised both on the Right and the Left. On the Left especially, it is fun that so many people sound like born-again proponents of Lochner-era "substantive due process," a doctrine of substantive constitutional protection of economic interests long thought dead, and long misunderstood (in my view and the view of some revisionists).
As much as I would like to see a revival of substantive due process (or the classical legal approach, as legal historian Morton Horwitz deemed it) in this area, that's probably not going to happen. But, if people really are so concerned about the potential for such questionable "public" takings, they can certainly work to amend their state constitutions to afford greater protection in eminent domain cases than the national constitution (which provides far less protection as a result of this ruling).
Posted by Kevin Whited @ 06/23/05 21:32 | American Politics | Technorati
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Comments
Are we really surprised?
HISD seizes property, decides not to build on it, and then sells it to developers for a huge profit.
Metro gets some for rails, blocks access to homes and businesses, and forces many more biz's to close.
And then there all the publically funded for rish sports team owner stadiums.
Posted by Brian Poirier @ 22:47 on 06/23/05
Kevin,
Two points. First, I don't think SDP is a doctrine that exists to protect solely economic interests. Those rights -- in terms of takings -- are already guaranteed under freedom of contract and the takings clause of the Fifth Amendment.
True, SDP in terms of Lochner came about relating to economic/labor issues like child labor, wages, etc., but I don't think that's the same thing as saying that SDP simply "is" a doctrine that exists to protect substantive economic rights.
Second, I don't understand why it surprises you that so many liberals disagree with the majority decision in this case. Can you explain further why?
Posted by TP @ 10:14 on 06/24/05
I should have been more precise with my language and written "born-again proponents of Lochner-era "substantive due process," *I* meant to refer to the protection of economic interests specifically, but in rereading that post, I see that's not what I did. In fact, I'm going to make that addition now for the sake of clarity. I'll do it in italics for the sake of transparency (I don't want to be hypocritical and whitewash, which we sometimes criticize the Chronicle for doing!).
You are right, of course, in speaking of substantive due process as a legal concept that extends well beyond protection of economic interests.
It's not entirely surprising to me that liberals dislike the majority decision. But the amusing part to me is that Progressives and their progeny led the charge in dismantling Lochner-era substantive due process doctrine. To see their contemporaries now sounding a little like Justice Sutherland is kind of fun for me.
I know, I need to get a life. :)
Posted by Kevin @ 10:31 on 06/24/05
I should also add that something else that is interesting about this case.
Recall some years ago when a number of scholars were asking if some of the Rehnquist Court's regulatory/noncompensatory takings decisions represented a return to Lochner-era substantive due process reasoning?
I don't think that's a concern any longer with this Court. I wonder if they would even decide some of those decisions the same way now.
Posted by Kevin @ 10:36 on 06/24/05
For the resourceful and bold, there's plenty of radiological waste produced at the medial center to provide a disincentive for any commercial entity to build on siezed land.
Posted by Laurence Simon @ 14:11 on 06/24/05
But, Laurence, would YOU want it then either? Kind of a scorched earth policy now isn't it?
Ya know, much is being made of O'Connor and Rhenquist retiring/dying (as the case may be) in the media. but even if those two were replaced by republican leaning judges, the makeup of the court would be essentially unchanged, they are among the more conservative judges on the panel. And I'm not all that crazy about Gonzales as a replacement for one of them either. I'm afraid he'll turn into another Kennedy or Souter, what with his Mecha connections etc.. Now if we could get rid of Kennedy or Souter, now we might be cooking with gas...
Posted by Rorschach @ 12:05 on 06/27/05
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