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.
posted by Jadagul at 7/13/2005 03:24:00 AM
4 Comments:
I don't understand the second sentence. From....last resort to....last resort. Where's the difference?
Yeah, that was a typo. I've fixed it now. Thanks.
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.
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.
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