Saturday, June 25, 2005

Some Paragraphs From Clarence Thomas' dissent

The entire Kelo ruling, in pdf format , is here. I 've not waded through the giveaway sections, nor read any of Sandra Day O'Conner's dissent, but heard some portions of Clarence Thomas' read on the radio. Reading all of it, here are some excerpts. There are fifty-six pages in total; Clarence Thomas' writing begins about page 38. Read it all, that's why I put it here.

Beginning with the conclusion:

The Court relies almost exclusively on this Court's prior cases to derive today's far-reaching, and dangerous, result. See ante, at 8-12. But the principles this Court should employ to dispose of this case are found in the Public Use Clause itself, not in Justice Peckham's high opinion of reclamation laws, see supra, at 11. When faced with a clash of constitutional principle and a line of unreasoned cases wholly divorced from the text, history, and structure of our founding document, we should not hesitate to resolve the tension in favor of the Constitution's original
meaning. For the reasons I have given, and for the reasons given in JUSTICE O'CONNOR's dissent, the conflict of principle raised by this boundless use of the eminent domain power should be resolved in petitioners' favor. I would reverse the judgment of the Connecticut Supreme

David Strom, local blogger, Taxpayer's League of Minnesota President and AM1280 radio host described perfectly the tension Justice Thomas sees incorrectly resolved. The Constitution and Bill of Rights were written not to endow the citizens of this country with rights, but to protect those rights with which human beings are endowed and inherently possess. The Government cannot give to citizens that equipment citizens come with as standard . It is evil for this (or any) government to hatch schemes to impede and trample upon such rights. And I think it doubly evil in collusion with debased Angels of our nature, to seize outright the properties of the very citizens whose rights they should expend the greatest efforts to preserve, the common man. Lincoln also said, God must have loved the common man, He made so many of them. ( My wife, the Fair Penelope, speaks fondly of the gret simplicity and virtue of ordinariness.)

As does Justice Thomas, (emphasis mine):

Long ago, William Blackstone wrote that "the law of the land . . . postpone[s] even public necessity to the sacred and inviolable rights of private property.l] 1 Commentaries on the Laws of England 134-135 (1765) (hereinafter Blackstone). The Framers embodied that principle in the Constitution, allowing the government to take property not for "public necessity," but instead for i"public use."
Amdt. 5.
Defying this understanding, the Court replaces the Public Use Clause with a " '[P]ublic [P]urpose' " Clause, ante, at 9=10 (or perhaps the i"Diverse and Always Evolving
Needs of Society" Clause, ante, at 8 (capitalization added), a restriction that is satisfied, the Court instructs, so long asthe purpose is "legitimate" and the means "not irrational",ante, at 17 (internal quotation marks omitted). This deferential shift in phraseology enables the Court to hold, against all common sense, that a costly urban-renewal project whose stated purpose is a vague promise of new jobs and increased tax revenue, but which is also suspiciously agreeable to thePfizer Corporation, is for a "public use". I cannot agree. If such "economic development" takings are for a "public use", any taking is, and the Court has erased the Public Use Clause from our Constitution, as Justice O'Conner powerfully argues in dissent. I do not believe that this Court can eliminate liberties expressly enumerated in the Constitution and therefore join her dissenting opinion. Regrettably, however, the Court's error runs deeper than this. Today's decision is simply the latest in a string of our cases construing the Public Use Clause to be a virtual nullity, without the slightest nod to its original meaning. In my view, the Public Use Clause, originally understood, is a meaningful limit on the government's eminent domain power. Our cases have strayed from the Clause's original meaning, and I would reconsider them.

Consider them he does. Taking's clause includes, (now...included?), just compensation as well as Public Use. Justice Thomas:

Though one component of the protection provided by the Takings Clause is that the government can take private property only if it provides 'just compensation" for thetaking, the Takings Clause also prohibits the government from taking property except "for public use". Were it
otherwise, the Takings Clause would either be meaningless or empty. If the Public Use Clause served no function other than to state that the government may take property through its eminent domain power"for public or private uses" then it would be surplusage.

And he quotes Madison as authority:

see also Marbury v. Madison, 1 Cranch 137, 174 (1803) ("It cannot be presumed that any clause in the constitution is intended to be without effect");

And he strikes the other side of the coin:

Alternatively, the Clause could distinguish those takings that require compensation from those that do not. That interpretation, however, "would permit private property to be taken or appropriated for private use without any compensation whatever". Cole v. La Grange, 113 U. S.
1, 8 (1885) (interpreting same language in the MissouriPublic Use Clause). In other words, the Clause would require the government to compensate for takings done "for public use", leaving it free to take property for purely private uses without the payment of compensation. This
would contradict a bedrock principle well established by the time of the founding: that all takings required the payment of compensation.

What large country whose economic system disintegrated virtually overnight, who could make missiles but not zippers, took property from its citizens at its 'founding'? Hint: Ronaldus Magnus. Are we at some ending or beginning with the Kelo ruling...?

He talks much more wisely about the word "use" than a certain disreputable womanizer spoke about the letter 'S' appended with a different vowel. (Strains the language indeed.)

Justice Thomas:
The most natural reading of the Clause is that it allows the government to take property only if the government owns, or the public has a legal right to use, the property, as opposed to taking it for any public purpose or necessity whatsoever. At the time of the founding, dictionaries
primarily defined the noun "use" as is[t]he act of employing any thing to any 2 S. Johnson, A Dictionary of the English Language 2194 (4th ed. 1773) (hereinafter
Johnson). The term "use,",moreover, "is from the Latin utor, which means ‚to use, make use of, avail one's self of, employ, apply, enjoy, etc. When the government takes property and gives it to a private individual, and the public has no right to use the property, it strains language to say that the public is "employing" the property, regardless of the incidental benefits that might accrue to the public from the private use. (emphasis mine) The term "public use". then, means that either the government or its citizens as a whole must actually "employ" the taken property.

Justice Thomas continues speaking about other cases and the word use. Tedious to reprint here, easy logic to read and follow. Except this small bit:

Only "by giving [the landowner] full indemnification" could the government take property, and even then "[t]he public [was] now considered as an individual, treating with an individual for an exchange', Ibid. When the public took property, in other words, it took it as an individual buying
property from another typically would: for one's own use. The Public Use Clause, in short, embodied the Framers' understanding that property is a natural, fundamental right, prohibiting the government from "tak[ing] property from A. and giv[ing] it to B."

Until a couple of days ago, prohibited. He talks about the Necessary and Proper clause, and early practice in use of eminent domain, and several states' constitution proscribing "public use". And then says this:

Our current Public Use Clause jurisprudence, as the Court notes, has rejected this natural reading of the Clause. Ante, at 8-10. The Court adopted its modern reading blindly, with little discussion of the Clause's history and original meaning, in two distinct lines of cases: first, in cases adopting the 'public purpose" interpretation of the Clause, and second, in cases deferring to legislatures' judgments regarding what constitutes a valid public purpose. Those questionable cases converged in the boundlessly broad and deferential conception of 'public use" adopted by this Court in Berman v. Parker, 348 U. S. 26 (1954), and Hawaii Housing Authority v. Midkiff, 467U. S. 229 (1984), cases that take center stage in theCourt's opinion. The weakness of those
two lines of cases, and consequently Berman and Midkiff, fatally undermines the doctrinal foundations of the Court's decision. Today's questionable application of thesecases is further proof that the "public purpose" standard is not susceptible of principled application. This Court's
reliance by rote on this standard is ill advised and should be reconsidered.

Notice the distinction Justice Thomas is drawing out: Public Purpose, not Use, and deferring to legislatures opinions of purpose. A hybrid bastard. And note his choices in word: bedrock, foundations, fatally undermines. No equivocation.

Justice Thomas next lays out the cases which led to the "public purposes" and "legislative decisions" lines of argument. (I cannot say 'reasoning'.) He misuses no language next, writing about legislatures.

Justice Thomas:
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,...(small snip) 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 theConstitution. 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.

Them more about the Midkiff case.

These two misguided lines of precedent converged in Berman v. Parker, 348 U. S. 26 (1954), and Hawaii Housing Authority v. Midkiff, 467 U. S. 229 (1984). Relying on those lines of cases, the Court in Berman and Midkiff upheld condemnations for the purposes of slum clearance and land redistribution, respectively. "Subject to specific constitutional limitations", Berman proclaimed, "when thelegislature has spoken, the public interest has been declared in terms well-nigh conclusive. In such cases the legislature, not the judiciary, is the main guardian of the public needs to be served by social legislation".

"Hello, we're from the government. We're here to help you, uh help ourselves to your land. Dean said we could." A department store, unblighted, was taken, and:

More fundamentally, Berman and Midkiff erred by equating the eminent domain power with the police power of States. See Midkiff, 467 U. S., at 240 ("The 'public use'
requirement is . . . coterminous with the scope of a sovereign's police powers"); Traditional uses of that regulatory power, such as the power to abate a nuisance, required no compensation whatsoever,see Mugler v. Kansas, 123 U. S. 623, 668Œ669 (1887), in sharp contrast to the takings power, which has always required compensation, see supra, at 3, and n. 1. The question whether the State can take property using the power of eminent domain is therefore distinct from the question whether it can regulate property pursuant to the police power. In Berman, for example, if the slums at issue were truly 'blighted", then state nuisance law, see, e.g.,
supra, at 5-6; Lucas, supra, at 1029, not the power of eminent domain, would provide the appropriate remedy. To construe the Public Use Clause to overlap with the States' police power conflates these two categories.

The 'public purpose" test applied by Berman and Midkiff also cannot be applied in principled manner. "When we depart from the natural import of the term 'public use,' and substitute for the simple idea of a public possession and occupation, that of public utility, public interest,
common benefit, general advantage or convenience . . . we are afloat without any certain principle to guide us." Bloodgood v. Mohawk & Hudson R. Co., 18 Wend. 9, 60-61 (NY 1837) (opinion of Tracy, Sen.). Once one permits takings for public purposes in addition to public uses, no coherent principle limits what could constitute a valid public use at least, none beyond JUSTICE O'CONNOR's (entirely proper) appeal to the text of the Constitution itself. See ante, at 1-2, 8-13 (dissenting opinion).

Sound wisdom suggests reading that dissenting opinion. More Thomas:

I share the Court's skepticism about a public use standard that requires courts to second-guess the policy wisdom of public works projects. Ante, at 16-19. The "public purpose"standard this Court has adopted, however, demands the use of such judgment, for the Court concedes that the Public Use Clause would forbid a purely private taking. Ante, at 7-8. It is difficult to imagine how a court could find that a taking was purely private except by determining that the taking did not, in fact, rationally advance the public interest. Cf. ante, at 9-10 (O'CONNOR, J., dissenting) (noting the complicated inquiry the Court's test requires). The Court is therefore wrong to criticize the "actual use" test as "difficult to administer". Ante, at 8. It is far easier to analyze whether the government owns or the public has a legal right to use the taken property than to ask whether the taking has a "purely private purpose" unless the Court means to eliminate public use scrutiny of takings entirely. Ante, at 7-8, 16Œ17. Obliterating a provision of the Constitution, of course, guarantees that it will not be misapplied.

For all these reasons, I would revisit our Public Use Clause cases and consider returning to the original meaning of the Public Use Clause: that the government may take property only if it actually uses or gives the public a legal right to use the property.

The consequences of today's decision are not difficult to predict, and promise to be harmful. So-called "urban renewall"programs provide some compensation for the properties they take, but no compensation is possible for the subjective value of these lands to the individuals displaced and the indignity inflicted by uprooting them from their homes. Allowing the government to take property solely for public purposes is bad enough, but extending the concept of public purpose to encompass any economically beneficial goal guarantees that these losses will fall disproportionately on poor communities. Those communities are not only systematically less likely to put their lands to the highest and best social use, but are also the least politically powerful. If ever there were justification for intrusive judicial review of constitutional provisions that protect "discrete and insular minorities," United States v. Carolene Products Co., 304 U. S. 144, 152, n. 4 (1938), surely that principle would apply with great force to the powerless groups and individuals the Public Use Clause protects. The deferential standard this Court has adopted for the Public Use Clause is therefore deeply perverse. It encourages "those citizens with dis-
proportionate influence and power in the political process, including large corporations and development firms" to victimize the weak. Ante, at 11 (O'CONNOR, J., dissenting).

He continues with some of the sadder "urban renewal" projects of the 1950's and 1960's. (I did not see the demolition, but remember seeing Pruitt-Igoe in St. Louis, and can see, right now in my mind's eye the empty acres of near north side St. Louis where it stood. Shortly before leaving that hot, muggy clime, other multi-story concrete-pillbox worker's housing was being grappled down and hammered into dust.)

Justice Thomas sees the impending consequences of Kelo. I fear violence may now be less far off. When people are made powerless, the sanctity of property and home violated; dreams and labor pawned to the whims of legislatures and their strange bedpartners' bank accounts; in states where lawmakers believe their own theologies about public good, protecting the health of workers and other such gray smears, someone, everything now taken away, for the "Public Purpose", and with nothing else to lose, is likely to fire back. There is a precedent near a bridge in Concord.

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