Law & the Courts

The One Proposed Constitutional Amendment That Might Garner Bipartisan Support

(Fabian Schmidt/Dreamstime)

Of all the many refuges that are available to the enterprising political scoundrel, the promise that his election will encourage and then usher in a set of radical constitutional amendments has by far to be the most crooked. With primary season upon us, we sit now amid a veritable ocean of such assurances. On the Democratic side, we have seen Hillary Clinton, Bernie Sanders, Lawrence Lessig, and a host of other also-rans promise repeatedly that, if they are elected to the White House, they will push hard to reverse the changes that were wrought by Citizens United and to limit the First Amendment’s protection of core political speech. On the Republican side, the ever-enterprising Ted Cruz has expressed his desire not only to push the toothpaste back into the tube and ensure that each state is permitted to determine what does and what does not constitute a “marriage,” but also to transform the workings of the Supreme Court so that it does not make such an egregious mistake again. Elsewhere, Rand Paul and Lindsey Graham have both pledged to modify the 14th Amendment to end “birthright citizenship”; Bobby Jindal has reiterated his commitment to a “balanced budget amendment”; and Marco Rubio has drafted a simple rule that would render the individual mandate at the heart of Obamacare flatly unconstitutional. By the time that the campaign is over, we will no doubt have been subjected to a host of further recommendations.

The most profitable reaction to these vows is the derisive scoff. None will pass. None will provoke serious national debate. None, in fact, will escape for a single moment from the dusty confines of the Judiciary Committee. Whatever their merits, whatever their inspiration, whatever the genuine grievance that they have been drafted to remedy, they are all destined to die echoing in the partisan air. This, I suppose, is to be expected. Even in times of peculiar national unity, it has proven nigh on impossible to garner the mass acquiescence necessary to change the national charter. Why, one wonders, in this time of rancor and division, should we expect things to be any different? If Clinton, Cruz, Jindal and Co. had enough political support to codify explicitly political changes into the nation’s supreme law, they would not need those changes in the first instance.

RELATED: Kelo vs. City of New London, Ten Years Later: There Has Been Some Progress, But Much Is Left to Do

Acknowledging this reality, it has become fashionable for commentators to predict with resignation that the United States Constitution will never be formally amended again and that, in consequence, the Supreme Court is now the whole game. At times, I have entertained this supposition myself. On closer inspection, however, I’m not entirely sure this is true. What would happen, I wonder, if Americans were presented with an important issue that had no obvious ideological or partisan home? What would happen if a supermajority were broadly opposed to a given court ruling? What would happen if a proposed amendment related to an extensively recognized individual protection?

What if the question were, say, property rights?

Per the plain text of the Constitution’s Fifth Amendment, the federal government is prohibited from forcibly taking “private property” unless a couple of crucial conditions are met. The first: That the seized land will be employed for “public use,” not for any purpose the government happens to dream up upon the instant (this would permit the state to demolish your home in order to build, say, a railway line, but not, say, to facilitate the building of a Walmart). The second: That the displaced must be provided with “just compensation” (in other words, that the government must reimburse you for your losses at a fair market value).

RELATED: Playing Monopoly in New Jersey: Can the State Seize a Private Home Simply Because It Wants To?

Initially, these provisions bound the federal government alone. But, since the passage of the 14th Amendment in 1868 — or, more specifically, since 1897’s Chicago, B. & Q. Railroad Co. v. Chicago confirmed the integrity of the change — they have been “incorporated” to the states. In theory at least, all Americans are now the beneficiaries of a hard-and-fast parchment barrier to which they can appeal when their government oversteps its bounds.

Of late, alas, these safeguards have been seriously weakened by the Supreme Court: First, in 1954’s Berman v. Parker, in which case the court redefined the term “public use” to mean “public purpose”; next, in 1984’s Hawaii Housing Authority v. Midriff, which built upon and solidified Berman; and finally and most famously in 2005’s Kelo v. New London, which, as Robert VerBruggen has pithily put it, held not only that governments could take private property in order to eliminate pronounced social harms (“blight,” etc.), but “that ‘public use’ could include, well, private use, so long as the new property owner paid more in taxes than the previous one.” As the Volokh Conspiracy’s Ilya Somin has argued convincingly in his blog at the Washington Post, Kelo thus served as the ugly icing upon an already questionable cake:

While most scholars and judges agree that the Fifth Amendment only allows government to condemn property if it is for a public use, the Kelo Court endorsed a broad definition of public use under which any taking qualifies so long as it might create some kind of benefit for the public. Thus, it allowed the condemnation of property for transfer from one private owner to another on the basis that the new owner might create more economic development for the community. The alternative, narrow interpretation of public use holds that a public use requires the condemned property to either actually be owned by the government or by a private owner that has a legal obligation to served the general public, such as a public utility.

Notably, it is not only libertarians, private-property enthusiasts, and professors at George Mason who have been vexed by this development. In fact, both ideologically and practically, Kelo and its antecedents have yielded something to upset everybody. Because the case was a close 5–4 — and because the votes followed the familiar pattern of Scalia, Thomas, Rehnquist, and O’Connor vs. Stevens, Breyer, Ginsburg, and Souter, with Kennedy bang in the middle — it might be tempting to conclude that any debate over the appropriateness of an expansive eminent-domain standard would follow the usual partisan course. This conclusion would be incorrect. Indeed, to look through the host of amicus briefs that were filed in defense of the petitioners is to understand immediately just how broad is the nerve that has been struck. As one would expect, the usual suspects have kicked up a merry fuss — Cato, Reason, the Property Institute of America, and so forth all took part in the litigation. But, and herein lies the key, so too did the NAACP, the AARP, the Becket Fund for Religious Liberty, and the Hispanic Alliance of Atlantic County. Property rights, it turns out, are not just a conservative passion.

#share#Writing in Kelo for the four-justice minority, Sandra Day O’Connor consciously traced the NAACP’s primary objection, submitting that “the beneficiaries” of the ruling “are likely to be those citizens with disproportionate influence and power in the political process, including large corporations and development firms,” while the losers would be the weak and the poor. In a dissent of his own, Clarence Thomas concurred enthusiastically with this proposition, lamenting that “extending the concept of public purpose to encompass any economically beneficial goal guarantees that these losses will fall disproportionately on poor communities” — communities that “are not only systematically less likely to put their lands to the highest and best social use, but are also the least politically powerful.” That the court’s supposed “conservatives” sided with the NAACP while the court’s alleged “progressives” aligned with the state and with big business is instructive. Although it has yet to manifest itself at the highest judicial level, there is a growing split between younger progressives — who tend to be suspicious of the role that governments can play in enforcing unequal power dynamics — and older progressives, who are still wedded to a New Deal–era judicial ideology that is highly averse to the striking down of any economic regulation at all.

Since the Kelo ruling was delivered in 2005, 45 states have sought to reverse it in at least some way, 22 of them seriously.

The case for a coalition is thus self-evident. For many progressives, the reversal of Kelo would deliver a blow to powerful, profit-seeking corporations and represent a boon to the powerless and the weak — the vast majority of whom are minorities, the NAACP notes. For independents, it would guarantee a reduction in the scope of that particularly pernicious form of cronyism that aids the reelection campaigns of the well-established (candidates would have less power to earn corporate funding, as they couldn’t help deliver property to corporate interests), as well as an assurance that they were safe in the ownership of their homes. And for conservatives — especially for those who bang on and on about individual liberty and the original meaning of the Constitution — it would serve as a momentous victory against the would-be architects and insatiable busybodies within America’s once-flourishing civil society.

RELATED: Colorado Couple May Lose Home in ‘Open Space’ Eminent Domain Seizure

Doubt that such an alliance exists, at least embryonically? Take a look around the country. Since the Kelo ruling was delivered in 2005, 45 states have sought to reverse it in at least some way, 22 of them seriously. “No other Supreme Court decision in all of American history,” Ilya Somin notes, “has generated so much state legislation.”

With this in mind, Somin has drafted an amendment, which he was kind enough to share for the first time here:

Section 1: Private property may not be taken by the United States or by any State except for a public use.

Section 2: For purposes of this amendment, a public use exists only if the condemned property is transferred to government ownership and control, if the general public has a legal right to access or utilize the property, or if the condemning authority proves by clear and convincing evidence that the use of eminent domain is necessary to eliminate a substantial threat to public health or safety.

Section 3: This amendment applies only to condemnations filed on or after the date of ratification.

Turning Somin’s draft from idle wish into legal reality would, of course, be tough. Alarmed that one of their favorite tools might be taken away, big-business interests would probably come out swinging hard, as would the vast number of endlessly meddling public officials who remain convinced that they can plan and nudge their way to utopia. In the meantime, some of the politicians whose support would be imperative might conclude that their participation was not worth the effort, and thereby hand an undeserved advantage to the small and well-organized opposition that would inevitably crop up. And, if the amendment were to be hijacked and redrafted in more ambitious language — if, say, it aimed not only to overturn Kelo but also to reverse the entire post-1954 status quo — it would almost certainly fail before it got out of the gate.

That being said, the amendment process exhibits a couple of major advantages over executive action or congressional and state legislation. First, there would be little that the measure’s opponents could do to water it down once its wording had been agreed upon — which, given the enormous power of America’s lobbyists, would be a considerable blessing. And second, there are no obvious veto points or unduly narrow windows of opportunity to sully the ratification mechanism. As the 27th Amendment demonstrated, once a proposed amendment has moved out of Congress and into the country’s broader political bloodstream, it can remain there until such time as there is enough support for its passage. As a rule, those who implore Americans to come together and get something done are fighting a losing battle; this is a deeply divided nation, and our present impasse is the result of that simple fact, not of shadowy and nefarious figures or of an inherent defect in the political system. Here, however, there seems to be an emerging and strongly held consensus that we must do something. Why, I wonder, has nobody yet gone where the field is open?

— Charles C. W. Cooke is a staff writer at National Review and the author of The Conservatarian Manifesto.

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