Monday, December 12, 2005

Was Kelo Rightly Decided?

The Kelo decision has generated a lot of outrage. For those of you who have been living in a cave, the Supreme Court decided in Kelo v. New London that a municipality may employ its eminent domain power to transfer property from one private landowner to another, so long as just compensation is paid to the transferor. Americans of all stripes have expressed indignation at this decision, cited as an example of "judicial activism" and of "imperious courts gone awry." Lost in all the fire and brimstone is a reasoned discussion as to whether the United States Constitution does, in fact, place any limits on what property can be acquired under the eminent domain power and for what purpose. Upon my reading of the Fifth Amendment takings clause, it seems that a strict constructionist would be forced to concede that the clause doesn't explicitly place any such limits on the eminent domain power.

The Fifth Amendment reads in relevant part as follows:

...nor shall private property be taken for public use, without just compensation.

This amendment does not read "nor shall private property be taken for non-public use" or "nor shall private property be taken except for public use". If the amendment did place explicit limits on the purposes for which property could be taken, the Kelo case would have been decided against the plain language of the Constitution. There have certainly been times when courts have decided cases in such a manner as to construe rights more broadly than the literal text would indicate. The "right to privacy" is such an example. Legal commentators of many political persuasions have often criticized the courts for "creating" rights which are not found in the text of the Constitution. Many of these critics, and probably the majority, hail from the right end of the political spectrum, which generally advocates a "strict construction" of the language of the Constitution.

In this case, the courts declined to find a "public purpose" limitation in the Fifth Amendment takings clause. It would seem inescapable that there is no such limitation in the text of the clause. In order to find such a limitation, a court would have to infer it, or loosely construe the language of the Constitution. Whatever you believe in as regards Constitutional interpretation, you should at least believe in consistency. If you are in favor of "strict construction", you should be in favor of it consistently. If, on the other hand, you are in favor of "loose construction" and inferred rights, you should be in favor of that consistently. You should not change your method of constitutional interpretation depending on whether or not you are personally in favor of the right being adjudicated. I might best be described as an adherent of "moderate construction".

I'd personally be in favor of a longer and more libertarian constitution. The brevity of our present Constitution would make it much less libertarian if it were strictly construed. Its explicit text places very few limits on the powers of states and localities. It is primarily through court interpretation that the governmental limitations of the U.S. Constitution have been applied to states and localities. The Constitution protects the rights of both "speech" and the "press," but most communication today is conducted by neither. Only by court interpretation have electronic media and non-verbal communication been brought into the scope of these protections. The alternative would be to amend the Constitution to explicitly provide for something like a "freedom to communicate" not tied to any particular medium. We haven't done so, and yet most Americans seem to be comfortable with constitutional protection for broadcast media, despite the lack of an explicit constitutional provision addressing it.

My point is, the Supreme Court could have found within the Fifth Amendment an extra-textual limitation on the right of eminent domain. It certainly wouldn't have been the biggest reach the Supreme Court has ever made. In this case, the Court didn't do so. By ruling in this manner, the court left the field open for the political process to operate. Far from being judicial activism, this was judicial restraint. Whether the court was right or wrong in this particular decision, the decision was an exercise of judicial humility (which is often lauded) rather than judicial hubris (which is rightly condemned). As such, whether one agrees with the Court's decision or not, I believe each of us should take note of his presumptions and core philosophies before directing too much fire at the justices who handed this decision down.


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