With all the commentary on the recent Kelo opinion, its hard to enter the fray with something yet unsaid, but at the same time novel enough about which to comment. While Kelo has been recently occupying the majority of space at many blawgs--it's recently become the only topic of discussion at SCOTUS's discussion blog--the issue of originalism has made a reappearance in the blawgosphere too. Through some posts here [authored by me, and me], the Legal Theory blog, RightCoast blog, Balkinization, and even Leiter Reports, the debate over originalism has gained recent steam. Now, with the Supreme Court's release of the Kelo opinion, I predict that Justice Thomas's separate dissent will reinvigorate the debate on originalism, and specifically textualism. Justice Thomas points out that the majority's extending "public use" to mean/include "public purpose" is easily avoided with an originalist/textualist approach.
In the majority's opening paragraph, we read: "The question presented is whether the city’s proposed disposition of this property qualifies as a 'public use' within the meaning of the Takings Clause of the Fifth Amendment to the Constitution." Language as "Qualifies as...within the meaning of..." indicates that some persuasion of textual analysis is forthcoming. Such watchwords foreshadow the specific issue, which is "whether a city’s decision to take property for the purpose of economic development satisfies the 'public use' requirement of the Fifth Amendment." As co-blogger Sean Sirrine said, "this...case revolves around the definition of public use."
The majority chronicles how "public use" has been interpreted throughout American jurisprudential history. Before that even, in its stating of the case's procedural history, the Court states, referring to the Connecticut Supreme Court,
[t]hat court held, over a dissent, that all of the City’s proposed takings were valid. It began by upholding the lower court’s determination that the takings were authorized by chapter 132, the State’s municipal development statute. See Conn. Gen. Stat. §8—186 et seq. (2005). That statute expresses a legislative determination that the taking of land, even developed land, as part of an economic development project is a “public use” and in the “public interest.” 268 Conn., at 18—28, 843 A. 2d, at 515—521. Next, relying on cases such as Hawaii Housing Authority v. Midkiff, 467 U.S. 229 (1984), and Berman v. Parker, 348 U.S. 26 (1954), the court held that such economic development qualified as a valid public use under both the Federal and State Constitutions. 268 Conn., at 40, 843 A. 2d, at 527.
The Court seems almost resided to not contend with the lower court's holding, taking for granted, it seems, that "public use" naturally includes "public interest." The SCOTUS does not give us a definition yet of "public interest," let alone explain how this extension consists with the US Constitution.
In Midkiff, this "'Court long ago rejected any literal requirement that condemned property be put into use for the general public.' Id., at 244. Indeed, while many state courts in the mid-19th century endorsed 'use by the public' as the proper definition of public use, that narrow view steadily eroded over time. Not only was the 'use by the public' test difficult to administer...it proved to be impractical given the diverse and always evolving needs of society. Accordingly, when this Court began applying the Fifth Amendment to the States at the close of the 19th century, it embraced the broader and more natural interpretation of public use as 'public purpose.' See, e.g., Fallbrook Irrigation Dist. v. Bradley, 164 U.S. 112, 158—164 (1896)." More simply, in Midkiff, the Court held a literal standard of the Takings Clause, which was then rendered obsolete because it was "difficult to administer" because society evolved/changed. The Court's reasoning for obsoleting a literal read rested on a presumption that it shouldn't be read literally, instead it should be read organically. We have here an admission--which comes as no real surprise--that the Court rather pursue one end over another end because it's practical and amendable to society. In other words, the Court has us accept as proper heuristic methods both pragmatism and construing the Constitution as a living document. The Court does not give us, however, a foundation nor a justification for these methods over others. Moreover, any normative explanations are also noticeably absent.
In predicable form for an originalist/textualist, Justice Thomas uses the resources of the time in which the Constitution was written to place into context the possible, then probable, meaning of the "public use" requirement of the Takings Clause. Of course Justice Thomas's entire dissent is a template for Originalist interpretation, but one paragraph stands out to me as singularly indicative of what textualists mean when whey say we're not to read the Constitution strictly (i.e. strict constructionism) nor are we to read it liberally (i.e. "living" Constitution "theory"), but reasonably.
Though one component of the protection provided by the Takings Clause is that the government can take private property only if it provides “just compensation” for the taking, the Takings Clause also prohibits the government from taking property except “for public use.” Were it otherwise, the Takings Clause would either be meaningless or empty. If the Public Use Clause served no function other than to state that the government may take property through its eminent domain power–for public or private uses–then it would be surplusage. See ante, at 3—4 (O’Connor, J., dissenting); see also Marbury v. Madison, 1 Cranch 137, 174 (1803) (“It cannot be presumed that any clause in the constitution is intended to be without effect”); Myers v. United States, 272 U.S. 52, 151 (1926). Alternatively, the Clause could distinguish those takings that require compensation from those that do not. That interpretation, however, “would permit private property to be taken or appropriated for private use without any compensation whatever.” Cole v. La Grange, 113 U.S. 1, 8 (1885) (interpreting same language in the Missouri Public Use Clause). In other words, the Clause would require the government to compensate for takings done “for public use,” leaving it free to take property for purely private uses without the payment of compensation. This would contradict a bedrock principle well established by the time of the founding: that all takings required the payment of compensation. 1 Blackstone 135; 2 J. Kent, Commentaries on American Law 275 (1827) (hereinafter Kent); J. Madison, for the National Property Gazette, (Mar. 27, 1792), in 14 Papers of James Madison 266, 267 (R. Rutland et al. eds. 1983) (arguing that no property “shall be taken directly even for public use without indemnification to the owner”).1 The Public Use Clause, like the Just Compensation Clause, is therefore an express limit on the government’s power of eminent domain.
While I could continue celebrating how I believe textualism has been to some degree vindicated as at least a worthwhile method of Consitutional interpretation, perhaps through comments and posts from my co-bloggers, we can flesh out Kelo some more.
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