Monday, February 15, 2016

Do Senators Cruz and Rubio understand the constitutional law of eminent domain?

I’m beginning this blog with a quotation that no Republican presidential primary candidate — including both of the surviving lawyers, Cruz and Rubio — has uttered in any of the nine so-called debates: The concluding twelve words of the Fifth Amendment to the Constitution of the United States of America.
                            . . . nor shall private property be taken for
                              public use, without just compensation.
Please note my emphasis of the word “use,” a term which is crucial to understanding the federal (and state) constitutional power of eminent domain, and which explains why the candidates, especially Cruz and Rubio, are doing a profound disservice to the American electorate. Particularly now that Justice Scalia has departed from the Supreme Court of the United States, and because his seat must be filled by a new associate justice in his mold and that of Associate Justice Clarence Thomas.
In my 2012 book The Supreme Court Opinions of Clarence Thomas, 1991-2011 [Second Edition] I wrote about the Constitution’s Fifth Amendment’s Eminent Domain power in the context of Justice Thomas’s opinions. I reprint that portion verbatim below. (I have  deleted the book’s Chapter Notes, except for number 1 below. I have added number 2.) Here is what I wrote in 2012………….

*          *         *

. . . .among the most frightening non-criminal powers of the federal government is its authority to seize privately owned real estate, including people’s homes. The only restraint on that power is the Takings Clause of the Fifth Amendment — and a Supreme Court willing to enforce it.

Regrettably, in Kelo v. City of New London a 5–4 majority applied the coup de grâce to whatever strength the Takings Clause may have had left after the Court’s many years of emasculating it.

The earlier case of Tahoe-Sierra Preservation Council, Inc. v. Tahoe Regional Planning Agency was a way-station on the way to Kelo.

In Tahoe-Sierra, the agency had ordered that no development take place in the Lake Tahoe basin for thirty-two months.

When the case reached the Supreme Court, the four liberals (Justices Stevens, Souter, Ginsburg, and Breyer), joined by fellow-traveling liberal Justices O’Connor and Kennedy, in an opinion by Stevens, ruled that the nearly three-year suspension of use was not a “taking” under the Fifth Amendment.

Justice Thomas dissented, scoffing at the majority’s assurance that “a temporary prohibition on economic use” could not be a “taking” because, according to the Court, “the property will recover value as soon as the prohibition is lifted.”

Thomas observed that “the ‘logical’ assurance that a ‘temporary restriction . . . merely causes a diminution in value’ . . . is cold comfort to the property owners in this case or any other.  After all,” Thomas wrote, “‘[i]n the long run we are all dead.’” [i]

Three years later came the Kelo case. Essentially, the City of New London condemned private residences in order to turn the homeowners’ property over to private developers.


In the approving words of Justice Stevens’s relatively short opinion, “to capitalize on the arrival of the Pfizer [pharmaceutical] facility and the new commerce it was expected to attract. In addition to creating jobs, generating tax revenue, and helping to build momentum for the revitalization of downtown New London . . . the plan was also designed to make the City more attractive and to create leisure and recreational opportunities on the waterfront and in the park.”

This time, the Court’s imprimatur on the City of New London’s condemnation of Kelo’s and the others’ homes was too much even for Justice O’Connor. The vote was 5–4—the majority consisting of the predictable liberal bloc of Justices Stevens, Souter, Ginsburg, and Breyer, plus Kennedy, who concurred.[ii]

Justice Thomas dissented. His opinion, longer than Stevens’s majority, is among the finest Thomas has produced during his [then] twenty terms on the Court.

Invoking English common-law treatises and the Framers of our Constitution, Thomas, as usual, began at the beginning, with the words of the Fifth Amendment: The taking must be for “public use.”
Defying this understanding, the Court replaces the Public Use Clause with “Public Purpose Clause” . . . (or perhaps the “Diverse and Always Evolving Needs of Society” Clause . . .), a restriction that is satisfied, the Court instructs, so long as the purpose is “legitimate” and the means “not irrational”. . . . (My emphasis.)
This deferential shift in phraseology enables the Court to hold, against all common sense, that a costly urban-renewal project whose stated purpose is a vague promise of new jobs and increased tax revenues, but which is also suspiciously agreeable to the Pfizer Corporation, is for a “public use.” I cannot agree.
If such “economic development” takings are for a “public use,” any taking is, and the Court has erased the Public Use Clause from our Constitution . . . . (My emphasis.)
Thomas went on to note that he agreed fully with O’Connor’s separate dissent, adding that he did not believe that “this Court can eliminate liberties expressly enumerated in the Constitution.”

But Thomas did not stop there. He wrote that Kelo was only the latest in a line of cases virtually reading the Takings Clause out of the Constitution “without the slightest nod to its original meaning. In my view,” he continued, “the Public Use Clause, originally understood is a meaningful limit on the government’s eminent domain power. Our cases have strayed from the Clause’s original meaning, and I would reconsider them.

There follows in Thomas’s dissenting opinion a thorough analysis of the Public Use clause — definitionally, historically, and logically — that demonstrates convincingly why the Court’s Kelo ruling was unsupportable, as were the precedents it relied on in reaching its conclusion.

After dissecting those cases, this was Thomas’s unavoidable conclusion:

               When faced with a clash of constitutional principle and a line
               of unreasoned cases wholly divorced from the text, history, and
               structure of our founding document, we should not hesitate to
               resolve the tension in favor of the Constitution's original meaning.
               (My emphasis.)

This was a restatement of Justice Thomas’s unambiguous and consistent originalist jurisprudence, pertaining not only to the Fifth Amendment’s Eminent Domain Clause but to all of constitutional law.

Although it was dicta (a statement not necessary for the decision of the case), Justice Thomas offered a dire prediction of where the Kelo decision would lead, and who would be its worst, most innocent victims:
The consequences of today’s decision are not difficult to predict, and promise to be harmful. So-called “urban renewal” programs provide some compensation for the properties they take, but no compensation is possible for the subjective value of these lands to the individuals displaced and the indignity inflicted by uprooting them from their homes.
Allowing the government to take property solely for public purposes is bad enough, but extending the concept of public purpose to encompass any economically beneficial goal guarantees that these losses will fall disproportionately on poor communities.
Those communities are not only systematically less likely to put their lands to the highest and best social use, but are also the least politically powerful.
If ever there were justification for intrusive judicial review of constitutional provisions that protect “discrete and insular minorities” . . . surely that principle would apply with great force to the powerless groups and individuals the Public Use Clause protects.
         The deferential standard [of review] this Court has adopted for the Public Use    
         Clause is therefore deeply perverse. It encourages “those citizens with         
         disproportionate influence and power in the political process, 
         including large corporations and development firms” to victimize the weak.

Those incentives have made the legacy of this Court’s “public purpose” test an unhappy one. In the 1950’s, no doubt emboldened in part by the expansive understanding of “public use” this Court adopted in [the] Berman [case], cities “rushed to draw plans” for downtown development. [Citation omitted] “Of all the families displaced by urban renewal from 1949 through 1963, 63 percent of those whose race was known were nonwhite, and of these families, 56 percent of nonwhites and 38 percent of whites had incomes low enough to qualify for public housing, which, however, was seldom available to them.” * * *
Public works projects in the 1950’s and 1960’s destroyed predominantly minority communities in St. Paul, Minnesota, and Baltimore, Maryland. * * *
 In 1981, urban planners in Detroit, Michigan, uprooted the largely “lower-income and elderly” Poletown neighborhood for the benefit of the General Motors Corporation. [Citation omitted]
Urban renewal projects have long been associated with the displacement of blacks; “in cities across the country, urban renewal came to be known as ‘Negro removal.’” [Citation omitted] Over 97 percent of the individuals forcibly removed from their homes by the “slum-clearance” project upheld by this Court in Berman were black. * * * (My emphasis.)
Regrettably, the predictable consequence of the Court’s decision will be to exacerbate these effects.

*          *          *
The United States of America has gone from 1791’s ratification of the Constitution, and its Fifth Amendment’s unequivocal textual “public use” requirement, to the Supreme Court’s intellectually and constitutionally indefensible substitution of a “public purpose” standard.

And then to dispossessing Poletown’s poor and elderly, creating Pfizer Pharmaceutical’s bucolic campus, and seizing Ms. Kelo’s family home.

And then, inevitably, to Donald [Casino] Trump’s high-roller limousine parking lot.

As the Constitution expressly provides, and as Justices Thomas made clear in his Kelo dissent, the textual and original meaning of the Constitution’s Eminent Domain Clause is “use,” not “purpose.” Apparently the Republican non-lawyer primary candidates — Trump, Kasich, Bush, and Carson — are ignorant of this profoundly significant constitutional distinction.

If Cruz and Rubio are equally guilty, it is shameful.

If they do know the difference between what the Constitution requires and what five unelected justices decided, the lawyer-candidates’ disappointing failure to explain that crucial difference to the American people is, at the least, grossly negligent.

*          *          *
(I don’t often ask for help, but there is so much at stake in this election that the importance of understanding the eminent domain issue cannot be understated. Please forward this essay to those whom you think may benefit from being enlightened, and ask them to do the same.)

[i] See Ayn Rand’s Atlas Shrugged, (Ninth Random House edition, 843) where her character Cuffy Meigs observes that “In the long run, we’ll all be dead.”
[ii] The dissenters were Chief Justice Rehnquist and Associate Justices Scalia and O’Connor, not one of whom joined Justice Thomas’s dissenting opinion.