Monthly Archives: June 2019

Doubletalk From Justice Stevens About the Meaning of Kelo

If you haven’t done so already you might want to check out Professor Ilya Somin’s review of Justice Stevens’ latest autobiographical book in which he has some more to say about his intellectual misadventure in authoring the Kelo majority opinion. It’s available on the Reason magazine post. See https://reason.com/2019/06/08/justice-stevens-admits-error-in-the-kelo-case-but-also-doubles-down-on-the-bottom-line/

Stevens now concedes in his book that his Kelo opinion was based on a wrong interpretation of the takings clause, but hey man, he likes the Kelo result (more about that in a moment) so he is content to leave it standing. Stylistically, Somin’s review is fairly typical professortalk, but he gets his message across, and that message (conceded by Stevens) is that Kelo used the wrong legal doctrine to analyze the issue.

To a man of limited intellectual resources, like your faithful servant, all this high-falutin’ talk about relying on the Due Process doctrine as opposed to Takings law, and rearguing the selective incorporation doctrine, is pretty much beside the point. Why? Because what was at stake in Kelo (and its predecessor Berman v. Parker), was the meaning of the English language, not so much legal theory. Before you start theorizing you have to establish what you are talking about — i.e., what “public use” means in plain English.  And the Fifth Amendment phrase “public use” must mean something discernible to intelligent English-speaking people untutored in the eminent domain theorists’ double talk. Taking A’s property and handing it over to B for the latter’s private, profit-making, personal business use is not “public us” or “a public benefit” no matter how you torture the English language and no matter what legal theory you use. Such use may or may not (we’ll come back to the latter phrase presently) generate some public benefit by a collateral trickle down process, but that, like the building or enlargement of a single Target or Costco store is not public use.

Besides, many projects for which private property is taken turn out to be out-and-out failures — situations in which the proposed “public use” that the condemnor succeeds in selling to credulous judges never materializes, while the public gets fleeced. Though only one of many such failures, Kelo itself is a perfect example of the latter situation, as Somin notes in his review. The city and the court’s majority talked grandly about producing high-end shops, condos, a marina and a five-star hotel, that would be patronized by well-paid high-tech employees of nearby Pfizer pharmaceutical company, generating jobs and taxes. In reality, 19 years have elapsed but nothing has been built and no construction is in the offing. Nothing, nada, zip, bobkes. After displacing a group of faultless lower middle-class homeowners and bulldozing their unoffending homes to the ground, the subject land remains vacant until this day, generating no taxes and doing no one any good. Pfizer took full advantage of the tax benefits offered by the city, and when they ran out, sold its facility, and moved out of town, taking some 1400 jobs with it. And the cost to the public for this caper? About $100 million. Thanks a lot, Justice Stevens, for thus conferring this “public benefit” on the taxpayers of New London.

Neither Stevens nor Somin (though Somin concedes in passing that the Kelo project was a failure, of benefit only to local feral cats) say anything about all this, and they avoid any mention of the concept of accountability and civic responsibility for this fiasco. And you wonder why the American people grow ever angrier at those who govern them, increasingly providing the people with a choice between would-be Socialists and angry would-be swamp drainers.

This is important stuff. The courts never tire of evading responsibility for such capers by telling us that in deciding matters going to the right to take private property by eminent domain, they, though the guardians of the Constitution who have the last word on the meaning of the provisions in that document, are actually meek doormats who must yield to every whim of the legislatures, even though the decisions they are called upon to review are usually not really legislative but a mere say-so of unelected functionaries of a one-horse burg. Still, courts say that such decisions are “well-nigh conclusive” and as such get to trump would-be judicial interpretations  of the Constitution.

And as for bright, well informed law professors, like Somin, their efforts too often bring to mind Yale’s late, lamented Professor Fred Rodell’s acerbic observation:

“Suppose a law review writer wants to criticize a court decision. Does he say ‘Justice Fussbudget, in a long-winded and vacuous opinion, managed to twist his logic and mangle history so as to reach a result which is not only reactionary but ridiculous? He may think exactly that but he does not say it. He does not even say, ‘It was a thoroughly stupid decision.’ What he says is ‘It would seem that a contrary conclusion might perhaps have been better justified.” 48 Va. L. Rev. at 280.

Bottom line: as conceded by Stevens, the Kelo majority opinion is the most widely despised SCOTUS opinion in history. Rightly so. It does violence to the English language and to the most elemental notions of justice. Neither it nor the judges who apply it deserve the citizens’ respect. The Bill of Rights is supposed to protect Americans from government abuse, not facilitate it. And as for Justice Stevens, it’s time for him to go fishing, instead of carrying on in a vain effort to put some lipstick on his Kelo doctrinal pig.

The “Sprawl Warriors” Are at It Again

Don’t miss the message embedded in the Wall Street Journal editorial, Joe Biden’s Green Free Lunch, Wall St. Jour., 6/7/19, p. A14. Most of it is the usual political stuff, accurately described by its title. But buried in it is an interesting message of interest to us land-use mavens. The editorial describes Biden’s proposed “shopping list” of policy prescriptions that he wants the Democrats to adopt in the coming presidential election. What is of interest to us is the sixth (bulleted) item on Joe’s list, quoted as a part of Biden’s proposed platform. Ready? Here it goes:

He wants the Democrats to use “zoning as a tool to battle climate change” by “altering local regulations to eliminate sprawl and allow for denser, more affordable housing near public transit.”  In other words, Joe is plumping for the sort of new arrangement that was just rejected by the California legislature.

Will this effort succeed? We doubt it very much. If the California negative public (and eventually legislative) reaction to such an arrangement is any guide, this proposal won’t make it at the federal level either. If anything, issues of federalism stand in the way of such a proposal — the federal government is not authorized by the Constitution to regulate local land uses, and any attempt to convert Biden’s notion into reality is certain to arouse vigorous NIMBY reaction from established suburbanite home owners who like things the way they are, and are ready to go to the barricades to prevent any serious changes in the established suburban zoning practices that, among other things, have converted suburban home ownership into a bonanza for large numbers of existing homeowners who — at least in desirable coastal areas — have been enjoying exploding, six-figure home equities.

Still, these days, you can’t predict what the would-be “liberal” reformers are capable of coming up with. See for example a federal lawsuit now pending in the US Court of Appeals for the 9th Circuit, in which self-motivated “students” are suing Uncle Sam demanding a court judgment that will order Uncle to stop global warming. So far, they haven’t been laughed out of court. But the case is far from over, so who knows what their Lordships will come up with. So keep an eye on Biden’s proposal as the presidential campaign moves along. You may yet be called upon to discuss this caper seriously, or at least with what purports to be a straight face.