Sunday, June 26, 2005

Still Another Witless Supreme Court Interpretation

The fifth amendment to the constitution concludes by saying

nor shall private property be taken for public use, without just compensation.
As Neal Boortz says,
"For hundreds of years the term "public use" was interpreted to mean use for something like a school, library, police or fire station, power transmission lines, roads, bridges or some other facility owned and operated by government for the benefit of the general population."
Justice Stevens, writing for the majority, claims
The disposition of this case therefore turns on the question whether the City’s development plan serves a “public purpose.” Without exception, our cases have defined that concept broadly, reflecting our longstanding policy of deference to legislative judgments in this field.
But wait a damn minute. When did "public use" come to mean "public purpose"? "To use something", on its primary interpretation, which ought to be what the Supremes use in their interpretations of the constitution, implies that there is purpose to the action. It would not, for instance, make much sense to say something like
John used the golf club to accidentally break a window on his back swing.
But this fact does not entail that "public use" means "public purpose." This would be to confuse the end of an action with the action itself.

Note that if the principle of eminent domain is used by the government to take private property to create a park, then you and I, that is to say, the public, would have a right to use it. But if the government takes that property and hands it over to a private corporation to build a set of office buildings, you and I would not have the right to, say, lay a blanket down in one of the offices they build and have a picnic. That is to say no public use of the building would need to be involved according to the terms of this new ruling by the Supremes.

The Supremes clearly have a problem with the word "use" whether used as a verb or a noun, as in this case. I excoriated Justice O'Connor for her wrong-headed interpretation of the verb "use" in the earlier blog. But, in this case, Justice O'Connor is on the side of the angels. In her dissent, however, she lets us know what is wrong with the narrow sort of interpretation of "public use" I have just sketched. She claims that

But “public ownership” and “use-by-the-public ”are sometimes too constricting and impractical ways to define the scope of the Public Use Clause.
This is an instructive passage. The "scope" of any passage ought to be restricted by the meaning of the language of that passage, but Justices Stevens and O'Connor seem not to understand that. Instead, practicality rules.

It is reasonable to say that we must expand the scope of the meaning of a provision of the constitution because circumstances have arisen that did not exist at the time the constitution was framed and there is every reason to believe that the expansion is consistent in principle with the intent of the framers. But a majority of our very conservative Supreme Court seems not to care about meaning when they have a chance to enrich the rich. As Justice O'Connor notes,

Any property may now be taken for the benefit of another private party, but the fallout from this decision will not be random. The beneficiaries are likely to be those citizens with disproportionate influence and power in the political process, including large corporations and development firms. As for the victims, the government now has license to transfer property from those with fewer resources to those with more. The Founders cannot have intended this perverse result.
Actually, there is nothing random about such a result. That is the American way -- take from the poor and middle class and give to the rich, the social policy of Bush and Cheney, and sadly, of the Supremes as well.

Some liberals will surely note, as russell did in my prior blog, that similar distortions of constitutional language have been made in the interests of liberal causes. If that is so, then that is a very good reason not to distort the constitution for liberal causes for that opens the door for equivalent distortions by conservatives. What is good for the goose...


I elided a paragraph saying that this issue of condeming private property and handing it over to private developers whose property will generate more tax money would unite conservatives and liberals and it did. The House has already voted to deny federal funds to any such enterprise with both conservatives and liberals being united but, obviously for quite different reasons -- to conservatives private property is sacrosanct and to liberals there is the concern that poor people will be uprooted and may have no place to go, the existence of housing for the poor being being quite limited in many cases.

Of course, Bush-style Neocons would be quite happy with the ruling of the Supremes for their decision enriches the rich, the primary desideratum of the Bush Administration.

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Blogger Glen Whitman said...

It's rather unfair for you to fulminate against our "very conservative" Supreme Court in the midst of a post complaining about the Kelo decision. The Kelo majority, which upheld these takings for private use, consisted of all four liberals (Stevens, Breyer, Ginsburg, and Souter) and one moderate conservative (Kennedy). Dissenters included all three of the most conservative justices (Scalia, Thomas, and Rehnquist) and one moderate conservative (O'Connor).

There are plenty of things to dislike about the conservatives on the Court, but this case is not one of them. In this case, the liberals were uniformly on the wrong side, and the conservatives were almost uniformly on the right (that is, better) side.

A very similar outcome happened with the Raich case (medical marijuana), except that Scalia sided with the liberal majority.

1:10 AM

Blogger The Language Guy said...

Liberal is as liberal does and the decision to overthrow the state law allowing for the private use of marijuana aligned these so-called liberals with the Bush Justice Department. That was not a liberal decision IMO. I just can't see this court as having a liberal-conservative split. It is something more like a moderate-conservative split. The same is true of the 5th amendment case. By no standard I know was that decision a liberal one. I should perhaps stop throwing around these political labels as loosely as I have since they do not coincide with conventional wisdom on the make up of the Court.

I am hardly an expert on the Court. I just look at cases that are interesting linguistically. I wonder if you or anyone else could make an argument that anyone on the court is a liberal. I suppose Ginsburg might pass muster.

Interestingly, a proposal has been made to sieze Justice Souter's New Hampshire farmhouse and turn it into a hotel.

I am sorry, but I cannot see the property siezure decision as being in any way a liberal decision and cannot see Justices who supported it as liberals.

9:59 AM

Anonymous Anonymous said...

Nobody, except you, is saying that the Kelo decision was a "liberal" one. The heart of your original post was to criticize the interpretation of the language, which I agree with, then you quickly move to Bush-bash for no apparent reason, which does not follow. I think you are over-thinking this one.

3:19 PM


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