You say goodbye, I say Kelo

Rufus F.

Rufus is an American curmudgeon in Canada. He has a PhD in History, sings in a garage rock band, and does many things. He is the author of the forthcoming book "The Paris Bureau" from Dio Press (early 2021).

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9 Responses

  1. Scott says:

    Kelo, sadly isn’t Stevens’ only bad opinion.Report

  2. Jaybird says:

    Texas v. Johnson.

    Google it and be amazed that he was on the wrong side of it. It sets the stage for him being wrong on all sorts of cases, Kelo, the McCain-Feingold cases… they all come into focus.Report

  3. D says:

    There is a difference between saying something like what happened in Kelo is bad and saying its unconstitutional. Stevens and the majority stuck with precedent, really. You may have thought you knew what the Takings Clause meant because you read the 5th Amendment in civics class, but the Court has consistently let democratic bodies define what public use means. If you wanted the court to enshrine a meaning the Constitution (“public use means roads” or something like that), then you’d need to overturn some pretty strong precedent (See Midikiff v. Hawaii Housing Authority and Berman v. Parker). The liberal view of Constitutional law is fundamentally about respecting the decisions about other branches of government when it comes to matters of economics, because while the rights of some cannot be democratically protected (eg criminal rights), the rights of property owners certain ly can be. (See e.g., John Hart Ely, Democracy and Distrust). In Kelo, Stevens recognized that a locally accountable democratic body had authorized the taking. If you don’t like it, elect someone new. And thats what people all over the country did. But the Court rightfully rejected the opportunity to enshrine in the Constitution a bright line rule for how you define an ambiguous word like “public use”, rather than letting a democratic, publicly available body define it. Everyone agrees that you follow the constitution (most do, at least), but the question is WHO gets to decide what the constitution means. You may disagree with what the phrase “public use” means, but Stevens position is not implausible (economic development has public benefits, ergo it could be a public use). And if its not implausible, if the text will bear it, its rather inappropriate for a set of unelected judges to decide what the term means. Stevens, whether in Raich or Kelo or any of his other decisions, was consistent in respecting the democratically accountable opinions of other government bodies. Thats something to recognize and respect, even if you disagree with outcomes.Report

  4. D says:

    One more thing: Lexington cites the democratic revulsion at Kelo and all the subsequent laws that were enacted as proof that the decision was wrong. Thats backwards: its proof that the decision was exactly right. Stevens didn’t say “public use” has to mean “economic development”, he said its plausible to say that. Its a democractic decision, and the Court let democracy make that decision. Kelo is an example of representation reinforcement in action.

    Another good example of this is Zurcher v. Stanford Daily: the case said newspaper sources could be subpoenaed by the government in a criminal investigation. OUTRAGE!!! People who like the First Amendment were disgusted. But guess what? If anybody can protect their rights in a democracy, its newspapers. And so the newspapers got a law passed in Congress outlawing the problems.Report

  5. Dave says:

    Kelo is an example of representation reinforcement in action.

    A great example of why I find representation reinforement action to be an obnoxious and wholly illegitimate method of constitutional interpretation.

    Justice Stevens had problems with the plain meaning of constitutional text, and frankly, I could care less what democratic majorities think if it offends the text of the Constitution. Justice Jackson took the same approach in West Virginia State Board of Education v Barnette:

    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. One’s right to life, liberty, and property, to free speech, a free press, freedom of worship and assembly, and other fundamental rights may not be submitted to vote; they depend on the outcome of no elections.Report

    • Jaybird in reply to Dave says:

      @Dave, Amen.Report

    • d in reply to Dave says:

      Ah yes…when in doubt argue by conclusion. No one disagrees with Jackson’s quote. But you can’t just assert that “plain meaning” and claim victory and expect me (or 5 justices) to agree. What does “liberty” mean? What does “public use” mean? Who decides? Why?

      In the original link put up by Rufus, Lexington made the point that Kelo did not involve “blighted” property. I take that point to me that Lexington agreed that Berman was rightly decided (public use=slum clearance). Why is that a public use and not Kelo? If you think Berman was wrong, what about a eminent domain for utilities? You say “public use” has a plain meaning, but its obviously arguable. You can have an opinion about that argument, but that doesn’t mean someone can’t, in good faith disagree. And if we can disagree about the precise application of phrases written by old white men 200 years ago , how are we to know when “liberty” is violated? Who decides?Report

      • Jaybird in reply to d says:

        @d, Watch out, D.

        That sort of argument will have you defending waterboarding of terrorists, seizure of vehicles and homes of people not convicted of crimes, and sodomy laws if you’re not careful…Report