Sheridan: Con-Law

BAD FIT

The Conlawprofs have been kicking around the reaction to the Kelo decision a few days ago.  Conservatives are up in arms over the expansion of local government power to take your land when maybe they should be pleased at the Court's restraint, i.e. in not being judicially active, by telling local government what it cannot do.

Liberals regard Kelo as business as usual for the Court, active here, not active there, the usual smorgasbord of picking-and-choosing what to put on your plate.  Reminds me of what conservative Catholics call the more free-wheeling ones:  Cafeteria Catholics.  Those are the ones willing to adhere to some official church doctrine but forego others in the name of birth control, the need to switch mates, and the like.

One of the professors, Howard Schweber, contributed this gem:

By describing these as "fault lines" I do not mean to suggest that either position is philosophically incoherent -- actually, my point is precisely the contrary.

It seems to me that in both cases what is going on is the attempt to map a set of philosophical beliefs onto a set of constitutional principles, and the problem of "inconsistency" is that the two systems of ideas do not quite fit. 

Imagine that!  Trying to cram a set of philosophical beliefs onto a set of constitutional law principles.

How long has that been going on I wonder?

Could we start perhaps with Hamilton?  Madison?  Jefferson?  Marshall?  Taney?  Warren?  Rehnquist?  Scalia?  Thomas?

Isn't this what each of us does in trying to make sense of Con Law?  Aren't we each trying either to conform our views to the law or the law to our views depending on what stage we're at?  Beginner, typical citizen, government official, Founding Father, or Supreme Court justice?

Maybe this is what Con Law is:  the attempt to reconcile philosophical principles with constitutional law.  No wonder studying Con Law can make your head spin.  The fit is off just far enough to produce all sorts of inconsistencies that can't be logically reconciled in any easy manner.  Just another example of the coat not fitting the mannequin or the mannequin not fitting the coat.  Kelo may need more hand-tailoring before it feels comfortable to a lot of folks forced to wear it.

[Prof. Schweber is author of "Speech, Conduct, & the First Amendment" (softcover, Lang, 2003, N.Y.), which would be a great text/casebook or supplement to the First Amendment elective I'm preparing to teach in September.  I'd like to use the casebook we all have, Cohen & Varat, to spare the expense, so why not treat the above as optional supplementary material.]

KELO, TAKINGS, DUE PROCESS

The Supreme Court handed down its decision in Kelo v. New London (2005) and property owners, and those who have an idea of property as something ordained by God not man, are howling.

The rule is that if government needs your property for a public purpose, it takes it and pays you what it was worth before they took it.  That's how the railroads got built, and the highways.  If you own beachfront property and we need to build a fort to repel invaders, your beach is kaput.  We'll pay you something later.  Your side gets to win the war.  Short of war, we call it progress.

That's why I (mentally, at least) was willing to believe that Kelo was going to lose when the city of New London wanted to condemn her whole neighborhood in order to allow the Pfizer pharmaceutical corporation to come in and build a new campus to house its burgeoning biotech industry, the new Silicon Valley of life-care.  Think of all the labs and scientists and techies and executives, like Mission Bay, San Francisco, our own new campus.  Think of all the tax revenue to support the new infrastructure needed to provide transportation, police protection, condominiums, stores, etc.

Progress in other words.  Seizing property in the name of progress and protection...I can see the ad claims.  In California, the property has to be "blighted" first, before Gummint can swoop it up, so the litigation often focuses on that, according to a report in today's Chron (San Francisco Chronicle; see sfgate.com).  One of the conservative opponents of such seizures called the San Jose Redevelopment Agency the worst "eminent domain abuser" in the state.  A spokesman for the agency pointed out that the Kelo issue, whether the taking was for a public use (or purpose. Is there a difference?  Some think so.) was not in issue, but whether the property was blighted was what the fight was about. 

One man's blight is another man's beauty. 

The windows may be broken, the roof may leak, but be it ever so humble, a man's home is is castle, and the king himself may not enter. 

Isn't that the way the old saw goes that protects homes from storm troopers, general search warrants (not describing persons and property to be seized with particularity, i.e. neighborhood searches), and British troops and jack-booted thugs wearing badges?  I think so.

Kelo decides at the expense of people who've lived there forever and didn't expect to have to move.  Yet they get paid...something...what the property was worth before the bonanza, not after the announcement of the new development, or the condemnation.

Perhaps they wouldn't squawk so loud if they participated in the windfall.

Below is an analysis by Charles Fried writing for Slate: