Kelo responses: hysteria, position-taking and humor
I really do plan to move on from this topic, but there are a few more things related to Kelo worth posting about.
First off, I read over Stevens' majority opinion again to see if the facts supported a state authorization requirement of the sort I suggested in yesterday's post. They do, mostly: in fact, Stevens makes clear (in II) that Connecticut state law indicated that economic development constituted a "public use" and that the New London Development Corporation received state-level approval (see footnote 2.)
Although the basis is there, Stevens' presentation and treatment of these facts is unsatisfying. First, it isn't clear from the opinion whether these facts are material. Would a future development taking be legitimate under Kelo without such state-level authorization and approval? I wish Stevens had made these circumstances explicitly material. Even if a state has the authority to engage in such takings, it does not follow that that authority is delegated to local officials merely by incorporating the localities.
Second, it doesn't say in the portion of the Connecticut municipal development statute quoted that private development constitutes a "public use." Admittedly, it doesn't say only public development (like government leasing property to private developers) is public use either, but the Court should demand more accountability at the state level for the exercise of eminent domain actions if the justices really want to realize cognizable limits in the Public Use condition.
I think this approach to giving form to Public Use is better than Kennedy's judicial "demanding scrutiny" for a hypothetical class of suspicious private takings (what Dahlia Lithwick refers to, with puckishly Dworkinesque phrasing, as "taking allegations of pretextual transfers Awfully Seriously," capitalization in original) because it puts the judgment and control over takings where it should be, with the states themselves. Also, since the application of the Takings Clause to the states is accomplished through the Due Process Clause of the 14th Amendment, a process-based solution is appropriate.
In other notable reactions to Kelo:
Republican John Cornyn of Texas introduced the "Protection of Homes, Small Businesses, and Private Property Act of 2005" in the Senate yesterday. So far, there are no consponsors, but I'll be curious to see what action (if any) follows. In his introductory remarks, Cornyn couldn't help but use the occasion to boost Janice Rogers Brown, even though many supporters of Brown would never support Sandra Day O'Connor, whose Kelo opinion Cornyn quotes at length in his remarks. I'm curious to follow the Republican responses to Kelo, since the decision (and the generous reading of economic development as legitimate public purpose) sets Kaldor-Hicks-type efficiency arguments (favored by neo-conservative economists and business conservatives) against natural rights populist arguments (favored by libertarians.)
The funniest response I've seen so far is from Freestar Media. I'm not sure why they're picking on Souter; maybe it's a New Hampshire thing.
Seriously, the Kelo decision is interesting, but I'm not going to write about it any more. The Ten Commandments, Grokster and Brand X (open access for cable broadband) decisions are all interesting as well, and I'll write or link to something about them (depending on whether I have anything useful to say.)