Wednesday, July 13, 2005

Kelo and the Enforcement of Constitutional Rights

Hit and Run has another post on the effects of the recent Kelo decision. The discussion, as usual, is excellent and thought-provoking. Specifically, it provoked thoughts about the Supreme Court's shift from being a protector of last resort to being one of last first resort.

These days, people think of the Court as an institution to protect constitutional rights. The executive and legislature decide to do something, and the Court strikes it down if it violates the Constitution. The most egregious recent example of this mindset is McCain-Feingold, which President Bush not only claimed was unconstitutional, but declared unconstitutional while he signed it. He justified this by claiming that "the courts [would] resolve the[] legitimate legal questions" themselves—so he didn't have to. The actual constitutional merits of the bill aside, it's more than a bit disturbing that a man who swore to uphold the Constitution would just say, "Sure it's unconstitutional, but I don't have to deal with that; that's not my problem."

It used to be that presidents and legislators thought themselves responsible for not signing (or voting for) unconstitutional legislation. That's probably why judges used to strike down unconstitutional laws so much less often: if the President is careful never to sign an unconstitutional law, the Court is never faced with the issue of striking it down. Now that the President and Congress ignore their responsibilities, the Court has to take up the slack.

So how does all this relate to Kelo? Quite simply, the Court deferred to the other branches, but the other branches have declined to exercise any sort of discretion. The ruling didn't state that all takings are justified; it didn't, in fact, expand the set of legally justifiable takings at all. What it did do was say the Court couldn't judge when the requirements for legal justification had been met. The Court has ruled that Eminent Domain takings are only permissible if they serve some public purpose; but the Court doesn't have the skill, knowledge, or authority to figure out if the takings actually serve a public purpose. That's the job of the city council.

That's all well and good if you actually expect the city councils to police themselves. The Court seems to be operating under the assumption that "they know what's unconstitutional, so now they shouldn't do it. If they tell us they've met that standard, we should assume they have." This makes perfect sense if you expect City Councils, legislators, governors, and the president to determine for themselves whether they're acting constitutionally. And I understand why the Court makes this assumption: it really doesn't have the time to investigate the facts of all takings cases, and neither do most lower courts. But when the Court leaves matters like this to the discretion of the other branches of government which actively refuse to exercise it, we have a problem.


Anonymous Anonymous said...

I don't understand the second sentence. From....last resort to....last resort. Where's the difference?

July 16, 2005 10:25 PM  
Blogger Jadagul said...

Yeah, that was a typo. I've fixed it now. Thanks.

July 16, 2005 10:49 PM  
Blogger keith said...

Hi, Jay. Welcome to separation of powers. The judiciary defers to the executive and legislative all the time. When it doesn’t, politicians, advocates, and hacks of all stripes start complaining about activist courts. Come to think of it, thoughc, the discourse in this area has become so boneheaded and intellectually dishonest, that “judicial activism” has become shorthand for “any outcome I disagree with.” Even in the wake of judicially inert decisions like Kelo, people have been throwing tantrums about the activist court that’s allowing the government to take peoples’ land. An activist judge strikes down laws. In many ways, as you allude, an activist judge is simply a judge doing her job. (As an aside, by this definition, Thomas is the most activist Justice on the Court. A recent study of the Justices’ voting patterns revealed that he’s voted to overturn the laws brought before him two-thirds of the time. The three judges in the Court’s “liberal’ wing – the ones most often tarred with the “legislating from the bench” broadbrush, were the least likely to overturn laws. Now, that’s only one way to define “activist,” but it goes to show how misleading the terms of the “activism” debate can be. But I digress.)

The Executive and Legislative have knowingly flouted their obligations to uphold the Constitution since before you and I were born. Jim Crow is the most obvious example, but it merely tops a long list. In the past, the Supreme Court deferred to the other branches because it had no power to enforce its own rulings. As a result, the Court has historically used its political capital sparingly. It bided its time, waited for moments in the nation’s history when it felt the moment was right to defy Congress or the statehouses, and when it did act it did so with the tacit hope that the Executive and public sentiment would rally behind it. The Court could’ve challenged racist voting rights laws a century ago, but it chose not to because if it had declared them unconstitutional and no one had followed its lead, it would’ve lost any credibility or authority it had. The emperor would’ve been exposed, buck naked , and the Court would’ve officially become The Branch of Government Everyone Can Comfortably Disregard. By 1950(ish), the Warren Court decided that the time was right to strike down segregated schools, and – voila – you had Brown v. Board. But the Court was really going out on a limb; imagine what would’ve happened if Eisenhower hadn’t set the troops to Little Rock. Because Eisenhower could’ve said to the court, “OK, let’s see you desegregate the schools,” and the Court would’ve been completely screwed. So historically, the Court’s role as constitutional arbiter has been fraught with institutional hazard.

Now, I don’t think the Kelo majority deferred to legislatures everywhere because it feared squandering its own political capital. We’re way beyond that now. Today, there’s enough tradition and precedent to back the Court’s authority. But that authority derives itself from the Executive’s enforcement power.

As for Kelo itself, there’s nothing unconstitutional on the ruling’s face. The 5th Amendment gives the government the right to take property for a public purpose with just compensation. The majority’s saying, “Our rulings have implicitly allowed this definition of ‘public purpose’ for a century and explicitly for a half a century. This is an open-and-shut case. Let’s move on.” Thomas is telling the majority, “Those rulings you cite are based on a faulty premise. Let’s define ‘public purpose’ more narrowly, as the Framers might have, and start over.” (I’m no fan of Thomas, but I think he might have the superior argument.) But even if the majority opens the door to a less fettered government, it doesn’t change the fact that takings are explicitly constitutional. Consequently, the courts are only going to weigh public purposes and procedural integrity. The rest is, yes, left to our elected representatives – which is to say, left to you and me.

July 31, 2005 8:59 PM  
Blogger keith said...

Sorry, Jay. That last post was way too long. I'll have to bring along my editor next time.

July 31, 2005 9:48 PM  
Blogger Jadagul said...

Hey, no problem with length. Look at some of the stuff I've put up here (including this comment itself ;)).

I can't say I think the court is wholly deferential, although it's far more deferential than I'd like to see it. I think there are some places where it needs to be deferential—as the majority in Kelo, for instance, pointed out, the court really doesn't have the time or expertise to go around double-checking every decision every legislature makes. In a perfect world the legislature would restrict itself to the Constitution, but as you point out that hasn't happened for a long time—though I think that FDR was the one who made it truly acceptable to flout the Constitution.

On the other hand, I think activism has (at least) two different possible meanings, which is why the term gets so confused. First, it refers to judges striking down laws, in which case Thomas, among others, is extremely activist. I think this form of activism is valuable and important. Second, it refers to judges making legal decisions based on extra-legal standards, especially when they interpret the constitution according to broad principles ("Living Constitution") rather than using an originalist frame. I, myself, am something of an originalist, partly because I think the original Constitution was a good document and partly for the same reason Stanley Fish is, so I think this form of activism is bad.

Kelo itself is, I think, a tricky issue. I think the Court's definition of "public use" is unconstitutional, but it's wholly in accordance with precedent (see Julian Sanchez's excellent article on precedent creep). But there was a second element of the decision, which my post was intended to focus on. The Court stated that, for the most part, it would not attempt to decide whether a city's proposed taking actually meets this standard—it's the city's responsibility to ensure that the standard is met, and the Court will take the city's word for it. I was pointing out that this is the way that it ought to work, but this system requires cities that are willing to make good-faith efforts to restrain their activities according to the constitution. If the executive and legislature no longer feel that they should actively attempt to remain within the constitution, the entire system falls apart.

August 01, 2005 2:13 AM  
Blogger keith said...

But you're leaving out the bedrock political safeguard here: the electorate. It's our job -- yours and mine -- to make sure that the Executive and Legislative are remaining true to the Constitution. The system only truly falls apart when the public becomes so apathetic or ignorant or cynical or preoccupied that it ceases to pay attention to politicians' willful abuses and neglect. If the electorate doesn't care, there aren't enough judges around to keep all the wayward, opportunistic pols in line.

August 01, 2005 5:40 AM  
Blogger keith said...

But you're leaving out the bedrock political safeguard here: the electorate. It's our job -- yours and mine -- to make sure that the Executive and Legislative are remaining true to the Constitution. The system only truly falls apart when the public becomes so apathetic or ignorant or cynical or preoccupied that it ceases to pay attention to politicians' willful abuses and neglect. If the electorate doesn't care, there aren't enough judges around to keep all the wayward, opportunistic pols in line.

August 01, 2005 5:40 AM  
Blogger McAfee said...

Keith, who is normally infallible, slips when he says the Fifth Amendment permits takings for a public purpose. Judges have permitted that; the Fifth Amendment itself permits takings for public use. It's best to get those words right, because they are what the argument was all about.

Kelo empowers the legislative branch, though at a cost that may be grotesque in the short run, but in the long run, the legislative and executive branches will be responsible actors only if the courts give them room to exercise responsibility. You might not swagger about and sign McCain-Feingold if you couldn't count on the court to bail you out.

As a practical matter, the more "public use" is allowed to be a judicial question instead of a legislative question, the more power opponents of development have. Developers have money; local governments have power; the opponents' most powerful weapon is delay, and the salient difference between the political and judicial branches is timing.

August 12, 2005 6:27 PM  
Blogger keith said...

McAfee, who is infallible, is right. He's right about "public use." And, now that there's no longer any uncertainty about the courts' authority, he's also right about the way legislators enact things they know (or at least reasonably suspect) to be unconstitutional because the courts have put them in a win-win situation. If the courts let their legislation stand, their handiwork gets a de facto constitutional imprimatur; if the courts strike it down, they can score political points blaming those darned activist judges.

It isn't just the inherent delay that makes the judiciary an attractive forum for opponents of development, either. While one side's financial advantages will still be apparent in court, at least in court, unlike most political forums of any consequence, both sides get equal face time with the decisionmaker.

August 16, 2005 6:41 PM  

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