The Political Spectrum

There has been a lot of excellent commentary in the "blogosphere" on this case already and its barely been available for 24 hours. See e.g., SCOTUSblog; Volokh Conspiracy; Southern Appeal; etc. That being said I think that one of the areas that has been overlooked is the notion of judicial deference to the political branches and whether or not that was an appropriate action for the Court to take in this case.

Before launching into this discussion, it’s helpful to remind everyone what a deferential decision does and consequently what it doesn’t do. The Court’s decision in Kelo does not imply that the Justices in the majority think that what New London has decided to do is a good idea, or is in any way a desirable outcome. Rather, it simply means that the city’s actions do not violate the 5th Amendment. As many commentators on this blog, myself included, are quick to point out, even stupid, insane actions of legislatures and other politically accountable officials are not unconstitutional no matter how much we may object to their outcome. The death penalty is an excellent example. No matter how much many people, including those on this blog, think that the death penalty is an abhorrent practice, it is not unconstitutional. Moreover, the death penalty can be stopped, albeit not by the Courts, but by the political process. In other words, we have to vote for lawmakers at the state and federal level, that will outlaw the policy choices that we find objectionable. So it is with this decision in Kelo.

Kelo is a deference-type case because the Court refused to draw a bright-line with respect to takings for "economic development" purposes. Instead, the Court opted to defer the decision to the politically accountable branches of government, who, according to the Court, are in the best position to evaluate the respective merits of a proposal and determine in it really is in the best interest of the public. Now, there are a lot of good, compelling arguments against this rationale, but all of them would have required ending up with a Constitutional judgment that says X is permissible behavior, but Y and Z are not. One could argue that this outcome is an exercise of judicial restraint and not one of judicial activism. The real blame for the loss of personal property arguably lies, not at the feet of the Supreme Court, but rather at the hands of the New London city government, who voted to exercise its power of eminent domain in this manner knowing full well what the consequences were on personal property rights. The Court, by its deferential decision, allows people to exercise their displeasure and "vote the bums out of office," who have done things that the public finds unacceptable.

All this is by way of bringing me to another point. Kelo doesn’t kill the Fifth Amendment. All it does is put the accountability back on the state and local officials, where so many people argue that in a republic power and decision making ability belongs. More importantly it is necessary to point out that so-called "economic development" takings can still be prevented even in light of Kelo. They can be prevented in many ways. For example, state legislatures can vote to deny local, city, and county governments the right to eminent domain property without prior authorization by the state government. In addition, states can pass state constitutional amendments prohibiting the practice of eminent domain at any level. Yet another method would be for states with the ability to place items directly on the ballot to draft reforms limiting the power to eminent domain, or require that any taking for "economic development" purposes be voted on via referendum before it becomes official. There are likely numerous other meothds available, but I think I’ve made the point. Kelo doesn’t mean the end of property rights, it simply means the focus of protecting these rights is going to shift from the Courts to the political process, a shift that I am sure, upon reflection, several of my co-bloggers may support. No doubt the facts and outcome here are disturbing, but if people can look past the ultimate disposition of the case, they may find that the outcome actually may, in the long run, serve to reduce the taking of property rather than enhance it.

# posted by mouldfan : 10:43 AM