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Bench Memos

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Stopped Clocks



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A stopped clock is right twice a day, as the old saying goes. Today the Washington Post is a reminder of that adage, as Justice John Paul Stevens was a reminder of it yesterday, in his opinion in the Kelo eminent-domain ruling handed down by the the Supreme Court. Over on The Corner, there’s been much discussion of the case, and I find myself in sympathy with what Ramesh Ponnuru and Jonathan Adler have said over there. But today’s Washington Post presents me with a real case of cognitive dissonance. I find George Will completely unpersuasive, and I’d be prepared to defend every word of the Post’s editorial. This doesn’t happen to me very often.

Absolutely everything in Kelo turns on a) whether the “public use” requirement can be satisfied by some plausible notion of “public purpose” notwithstanding the fact that some or all of the private property seized finds its way into other private hands; and if so, b) what are the relative positions of the legislative and judicial powers in deciding that it has in fact been satisfied in the taking at hand? Stevens, for the Court, answers a) yes, and b) the judiciary has a very minimal role. Kennedy’s concurrence answers a) yes, and b) the judiciary could afford to be, in some vague Kennedyesque way, a little more involved. O’Connor’s dissent, joined by Thomas, Scalia, and Rehnquist, answers a) yes, and b) the judiciary must strictly monitor the legislature in such cases. Thomas’s dissent answers a) no, unless the public itself has the right to employ the property now placed in new private hands (as with, e.g, a railroad), which makes for the most stringent possible judicial supremacy in answer to b). The four opinions thus span a continuum from judicial restraint to judicial activism, with Thomas, I’m afraid, at the wrong end of the spectrum.

O’Connor’s dissent is, frankly, hilarious. It takes a special kind of nerve for her to dissent in this case, when she was the author 21 years ago of the awful ruling in Hawaii Housing Authority v. Midkiff, which endorsed a straightforward land redistribution scheme far worse than what Kelo presents, and she does not repudiate it here. (Rehnquist joined her in Midkiff, by the way–a unanimous ruling.)

As one might expect, Thomas’s dissent offers the more formidable originalist challenge to the majority’s view. I have long thought that no matter how fresh or how venerable a precedent may be, it is not binding if it is an excrescence on the Constitution. And Thomas wants to scrape off two barnacles, of 20 and 50 years’ age. But he doesn’t stop there. He reaches back to some turn-of-the-20th-century decisions with which he finds fault, and even (to his credit) reports on the equivocal holdings of various state courts in the very early 1800s; he simply prefers some of these holdings to others, but for no very good reasons. I don’t think his arguments are up to the task of opposing all these precedents, especially when he turns (as he did in the Lopez ruling on guns in schools 10 years ago) to Samuel Johnson’s dictionary for a definition of the word “use.” This is feeble. Foraging in dictionaries is not how one finds the most natural usage of ordinary words in legal texts. I may be tiresome in citing my hero John Marshall, but I can’t identify one case in which he turned to a dictionary–and Thomas’s favorites were surely available to him.

I’ll end where I would have both begun and ended, had I written for the Court in this case. I would have held against the property owners on grounds that the takings clause of the Fifth Amendment has no application to the actions of state and local governments. It is interesting that Thomas, so interested in the original understanding, has nothing to say on the great fraud of the “incorporation” of the Bill of Rights by the Fourteenth Amendment.



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