Once again, the Supreme Court does the right thing and it pains me nonetheless
The New York Times reported today that the Supreme Court ruled that it is constitutional for the city of New London, Connecticut to seize private property for the purposes of an economic development plan.
This highlights an important difference between a proposal that I think is wrong on the merits but is still constitutional. I don't know much about New London's plan, but these types of urban renewal schemes rarely work and usually amount to corporate welfare. (I have many more opinions on this subject, but they're beyond the focus of this post). But declaring this plan to be unconstitutional would have opened a big can of worms.
The Fifth Amendment contains the so-called "takings" clause, which states that private property shall only be taken by the government for public purposes if just compensation is offered to the propertyholder. A lot of conservative judicial activists who have been unable to democratically win their battles against government actions they don't like have tried to use the takings clause to invalidate a variety of regulations, from environmental requirements to historical landmarking. With conservatives activists like Janice Rogers Brown advancing up the federal court system, it's reassuring to have this precedent standing athwart a reinvigorated takings clause.
The point is not whether New London's plan is good on the merits, the point is whether this issue will be decided by democratic bodies or by undemocratic courts. Just like I support medical marijuana on the merits but don't think it's unconstitutional for Congress to legislate on someone growing pot in their backyard -- another recent rebuke to conservative judicial activism -- I think the Court did the right thing here.
UPDATE #1 - 6/24/05 - an intellectually honest conservative concedes here the contradiction between conservative tributes to state and local control and judicial restraint and conservative denunciations of this decision.
UPDATE #2 - this same guy (Jonathan Adler) answers some of the questions a lot of you have had about the term "public use." He says that this term was meant to distinguish the taking of property for public use from taxation, where of course it wouldn't make sense to require "just compensation." While I think that "original intent" does not count for much, it makes for interesting reading.
UPDATE #3 - an article by Michael Kinsley from a few months ago makes the same point. One person's principled constitutional interpretation is another person's judicial activism.
This highlights an important difference between a proposal that I think is wrong on the merits but is still constitutional. I don't know much about New London's plan, but these types of urban renewal schemes rarely work and usually amount to corporate welfare. (I have many more opinions on this subject, but they're beyond the focus of this post). But declaring this plan to be unconstitutional would have opened a big can of worms.
The Fifth Amendment contains the so-called "takings" clause, which states that private property shall only be taken by the government for public purposes if just compensation is offered to the propertyholder. A lot of conservative judicial activists who have been unable to democratically win their battles against government actions they don't like have tried to use the takings clause to invalidate a variety of regulations, from environmental requirements to historical landmarking. With conservatives activists like Janice Rogers Brown advancing up the federal court system, it's reassuring to have this precedent standing athwart a reinvigorated takings clause.
The point is not whether New London's plan is good on the merits, the point is whether this issue will be decided by democratic bodies or by undemocratic courts. Just like I support medical marijuana on the merits but don't think it's unconstitutional for Congress to legislate on someone growing pot in their backyard -- another recent rebuke to conservative judicial activism -- I think the Court did the right thing here.
UPDATE #1 - 6/24/05 - an intellectually honest conservative concedes here the contradiction between conservative tributes to state and local control and judicial restraint and conservative denunciations of this decision.
UPDATE #2 - this same guy (Jonathan Adler) answers some of the questions a lot of you have had about the term "public use." He says that this term was meant to distinguish the taking of property for public use from taxation, where of course it wouldn't make sense to require "just compensation." While I think that "original intent" does not count for much, it makes for interesting reading.
UPDATE #3 - an article by Michael Kinsley from a few months ago makes the same point. One person's principled constitutional interpretation is another person's judicial activism.
Labels: judicial activism
posted by honestpartisan | 12:16 PM
12 Comments:
Wrong. You're not talking about whether something IS or ISN'T constitutional, you're talking about whether something SHOULD or SHOULDN'T BE constitutional. Get the distinction?
You think Congress should be allowed to legislate whether or not people grow pot in their backyards, even though you don't think they should--but nowhere are you identifying what about that involves the constitution.
Likewise, you think the takings clause needs to be left open... but you're not basing that on the constitution, you're basing that on your fears of what could happen otherwise.
That's judicial activism, no matter how you slice it—you're focusing on the repercussions instead of on the document.
I have put up a long post on why limits in the constitution are important, and why this sort of decisions are so dangerous.
Okay, let me try this a different way.
I moved a few months ago, from one part of Brooklyn to another. A couple of blocks from where I lived, a real estate developer named Bruce Ratner is trying to get the city use its eminent domain powers to condemn land and clear it to make way for a basketball stadium that would lure the Nets from New Jersey to Brooklyn.
Bruce Ratner's other projects around Brooklyn -- Metrotech and the Atlantic Center Mall -- are urban planning nightmares of ugly architecture, elephantine scale, and auto-dependence. Although I moved, I still have a lot of fondness for that neighborhood and I would hate to see the human-scale mix of historic brownstones, local businesses, and cool bars demolished to make way for a basketball stadium. I mean, really hate it.
If the Supreme Court had ruled the other way, there would be a pretty good argument that this terrible thing they want to do to this community would be deemed unconstitutional, too, so from a personal perspective, the decision is bad for me.
But you know what? I'm just one person with an opinion. A flawed, imperfect person at that. (Certainly, Brian seems to think so). And as annoying as it is, I have to share my borough, city, state, and country with people whose opinions are different from mine.
As it turns out, there are people with different opinions than mine who are likely to prevail over me in this issue. Governor Pataki, Mayor Mike "stadium freak" Bloomberg, Borough President Marty Markowitz, and Senator (and Brooklyn resident) Chuck Schumer -- democratically elected officials all -- all support this stupid plan.
I suppose you could argue that the political influence that real estate developer bucks buys has more to do with the politicians' position than the votes they get. But there are arguments that the development will bring in tax revenue and jobs, and there actually are people who support it on the merits, political influences aside.
So how should this dispute be resolved? If I were to take the position that people with a different view than mine are proposing something unconstitutional, it would short-circuit the democratic process that otherwise engages the merits of any dispute like this. It would arrogate to me the authority to decree that my view should prevail in some absolutist, Platonic sense. In other words, that a subjective view is actually objective.
This is what I take, to some extent, from Brian's statement that some things just ARE constitutional and that I shouldn't engage in the question of whether it should be constitutional.
Oliver Wendell Holmes put it nicely in his dissent in the Lochner case when he said that the constitution was written for people with differing views. So, when the Constitution gives Congress the power to pass all necessary and proper legislation to meet ends, when the Constitution gives Congress the power to regulate interstate commerce, when the Constitution gives the government the right to take property for public use upon a payment of just compensation, democratically elected bodies made up of people of differing views ought to be able to figure out for themselves what they mean. If you disagree with those legislators' views, you have a ready remedy: vote against them! And a future legislature can amend or repeal a statute with a majority vote. You can't vote against a federal Article 3 judge and because of stare decisis, it's really hard to change a court decision. So respect for differing points of view demands respect for decisions that democratically-elected bodies reach.
After all, the drafting of the Constitution was a collective process defined in part by people who vehemently disagreed with each other and compromised their disagreements in part by drafting vague clauses that are subject to interpretation. So phrases like "interstate commerce", "public use", and "necessary and proper" are flexible enough to allow democratic majorities to fill them in.
When judges decide that it's best for them not to interfere with the democratic process that chooses to interpret these phrases, the judges are acting in a restrained manner. Thus "judicial restaint." When judges decide to get off the sidelines and involve themselves in this interpretation dispute, they are being active. Thus "judicial activism."
Conservatives have long criticized liberals, particularly during the Warren Court years, for turning to court to win on their issues when they couldn't prevail in democratic bodies. During the presidential campaign last year, Bush made this very critique of the judicial decisions about gay marriage. And you know what? They're right! They have a point!
Here's a recent article by Jonah Goldberg from the National Review that makes this argument: http://www.nationalreview.com/goldberg/goldberg200504130752.asp -- and some choice quotes from the article:
"[L]iberal Democrats ... have empowered the courts to run roughshod over democratic and republican principles. It's almost impossible to think of a major area of life in America where a judge somewhere hasn't ruled in flagrant defiance of the democratic will of the people as expressed in a referendum or through the state legislature ... Stymied at the polls, [liberals] have run with the ball wherever the field is open, in this case the courts."
These exact words could be turned against people unhappy with the New London decision today. But what puzzles me is that conservatives who attack judges for legislating from the bench, short-circuiting democracy, and overturning the will of the people when the subject is abortion and gay marriage frequently don't remain true to this critique when courts will not reverse democratic actions that they disagree with. I haven't seen anyone who disagrees with the takings clause decision today even begin to address this inconsistency.
Instead, I have heard this decision attacked as "judicial activism." Which attack makes a hash of the term judicial activism. So I'm asked to believe on the one hand that it's judicial activism for a court to step in and stop a democratic legislature from making abortion illegal but it's also judicial activism when a court does not step in and stop a democratic body from taking property for economic development. Well, I'm sorry if it insults you, Dave, because I don't mean it as an insult (although we disagree, I find you to be quite intellectually honest and willing to consider points of view), but it sounds to me like "judicial activism" is an epithet used against someone whose judicial philosophy is different than yours.
As I noted on your blog, Richard Epstein, an intellectual doyen of the "constitution in exile" movement, which wants the court to strike down economic regulations as unconstitutional, doesn't shy away from the "activist" label; he embraces it. Here are a couple of posts:
http://www.economicthinking.org/law/twoviews.html
http://www.nytimes.com/2005/04/17/magazine/17CONSTITUTION.html
So is Jonah Goldberg's criticism of liberal reliance on courts wrong? If not, then why attack today's decision on the New London case?
You said: "But what puzzles me is that conservatives who attack judges for legislating from the bench, short-circuiting democracy, and overturning the will of the people when the subject is abortion and gay marriage frequently don't remain true to this critique when courts will not reverse democratic actions that they disagree with. I haven't seen anyone who disagrees with the takings clause decision today even begin to address this inconsistency."
No one is addressing this inconsistance because we do not believe what you say we believe. We do not disagree with the court for overturning the will of the people. We disagree with the court for overturning the will of the people by rewriting the constitution. We also disagree with the court for affirming the will of the people by rewriting the constitution. It isn't whether a particular decision goes against or for what a democratic body says that bothers us. It is if a particular decision requires such tortured constitutional logic to achieve that the meaning of the words is lost that makes it wrong.
This is writing law, in this case the highest law of the land, the constitution, from the bench.
The definition you use for 'activist court' is not what I commonly use, or agree with. Active is not the same thing as activisit. I expect the court to be active in defending our constitutional rights. That is it's purpose. I do not expect the court to be activist by either inventing rights, or removing them.
Interstate Commerce should mean something. Public Use should mean something. When the court decides that they mean nothing they are changing the law. And they should not do that.
What Dave said.
In the case of New London, the local government is taking land from private owners, and giving it to another private owner. In what way can this possibly be considered public use?
Public use is commonly used to refer to a situation where private land is taken by a governing body for the purpose of building a highway, school, public park or municipal building. Meaning that it is taken for the public to make use of.
I do not understand how taking the land and giving it to a private company constitutes public use. I'm not entirely sure how the supreme court could have extracted that definition from the term "public use" either.
If the fifth amendment instead said, "for the benefit of the public", I can see how an economic benefit might be considered a good reason to take land from a private holder, with just compensation. The fifth amendment actually states, "nor shall property be taken for public use without just compensation." Meaning, if it's not for public use, you can't take it. End of story.
To further shore up Dave's argument here, the English major in me would like to clarify that according to Web 10 (Merriam-Webster's Dictionary 10th Edition) the word "activism" is defined as: "a doctrine or practice that emphasizes vigorous actions for political ends." It is not defined simply in terms of a person being active or passive.
By definition, the term "judicial activism" implies political motivation.
I don't want to belabor this argument, but I feel frustrated because no one has yet addressed my point. Jonah Goldberg -- a conservative who writes for the National Review -- criticizes liberals because they use courts to get results they can't get through elected officials. Bush did the same thing last year when he said that the gay marriage issue was more about courts running roughshod over the electoral process than the actual issue itself.
These aren't isolated comments. They are the heart and soul of conservative complaints about liberal judicial activism. I'm not using this term in a vacuum. It comes in a long context of attacks on liberals for using courts to overturn decisions of elected officials.
And so I repeat: Jonah Goldberg AND your critique of the New London decision can't both be right. Is he wrong? If you think so, that's fine and intellectually consistent, although I do want to point out that you are saying that decades of conservative criticism of liberal judicial activism ON THESE GROUNDS is wrong.If you think he's right but also think that the Court did something wrong, then I have to conclude that your definition of "judicial activism" is "a decision I disagree with".
I still don't see the inconsistance.
I believe in divided government with limited and defined powers.
There is a realm where the court is supposed to be active. They are to interpret the laws of the land, and to find facts and rule on applicability. They are not to change the law of the land, but if a lesser law (legislation passed by congress or a state) conflicts with a higher law (the constitution) they should rule that the lesser law is invalid.
There is a realm where the legislation (either state or federal) should act, according to the powers that have been granted to them.
It is wrong for the legislation to act in areas where it is not the appropriate authority and it is wrong to the Court to exceed it's authority and rewrite law rather than interpreting it.
I believe that protecting our basic rights, as enumerated in the Constitution and the ammendments to it, is the most important job of the court. The court should protect freedom of speech, the right to bear arms, etc. etc. That is it's most fundamental job.
However, if a right is not enumerated in the constitution, it is wrong for the court to 'put it in' even if the right is a good idea. This was done in the Roe v. Wade decision and the Lawrence v. Texas decision. I completely support the non-criminalization of consensual sex. It is the right thing to do. I do not find though that the right to privacy that the Court finds exists in the constitution.
Maybe it should. I could certainly support that idea. But the Court cannot change the constitution. It does not have the power to do so. If we want that right, we must ammend the constitution. A similar situation would exist if the court found a 'right to marriage' in the constitution. I am for gay marriage. I would happy vote for it. I cannot agree that there is a right that guarantees it however.
The court is activist when it acts outside it's proper sphere or fails to act within its proper sphere for ideological reasons.
You have indicated previously that you don't like the seperation of powers doctrine, so perhaps that is why you are missing this fundamental point. If all you care about is results of a particular issue, than it doesn't much matter whether it is the courts, a state or local government, or a federal legislative decision that delivers that result.
I think though that seperation of powers is fundamental to maintaining our freedom. So I dislike it anytime I see an inappropriate method used. Who has the power to decide things is more important to me, in many cases at least, than what is actually decided.
HP, you seem very confused. We're accusing SCOTUS of doing exactly what Jonah Goldberg accuses them of doing. Making the law, rather than upholding the law.
Writing laws was never something that was defined as a right of the judiciary branches of government. The delicate balance that is in place to keep all three branches of government honest, is slowly but surely falling apart. This is why judicial activism is such a big concern.
If the judiciary is not going to defend and uphold our laws, who is to say that they won't start letting local governments pass laws, regardless of whether those laws are constitutional or not? How can the judiciary be trusted to defend the very foundations of the country, if it steps outside the boundaries set for it by those foundations?
SCOTUS did just this in the New London case. They took two clearly defined words and changed what they mean. Web 10 doesn't define "use" as beneficial to something, that would be "good use" which is not what the fifth amendment says.
So my question for you is this; in what way did SCOTUS act in a fashion that was different from what you said Mr. Goldberg accuses liberals of using the judiciary for?
I don't know what kind of communiaction breakdown here has happened here. You seem to think that "democratic" means an overall good system of governance. I use democratic in the way that Jonah Goldberg and the right-wing critics of liberal judicial activism use it -- meaning you lost at the ballot box so you resort to the Courts to get your way. If what the city officials of New London are doing is so bad, the people in New London have a remedy against them. Run against them, vote them out of office, get the city council to pass a statute or an ordinance that would stop this. It this failure on the part of liberals to prevail at the ballot box on the issues of abortion and gay marriage -- and their subsequent resort to litigation -- that Jonah Goldberg criticizes.
I did not see that spelled out in your previous comment.
I do feel that the most powerful tool in the hands of voters is their ballots, and that more people should speak with their ballots than they do, and I do agree that they do still have tools in their hands with which they can fight to save their homes.
Still, I believe that what the supreme court has chosen to do here is wrong, and is not what was intended for the fifth amendment.
"the point is whether this issue will be decided by democratic bodies or by undemocratic courts."
I'm sorry...I'm cleaning my keyboard here. When I read a liberal uttering those words, my Diet Pepsi shot from my nostrils. That'll teach me to drink and read drivel at the same time.
"Democratic bodies" in this country routinely reject modern day liberalism in damned near every form, yet it's a liberal judiciary that forces its unwanted activist interpretation on an electorate that roundly rejects the liberal message. From partial birth abortion to voting laws to race-based policies to gay marriage, Americans routinely vote slightly to outright right-of-center.
Yet some leftist court comes along and strikes down the voters' wishes, due to their "creative interpretation" of the Constitution.
For you to say that "undemocratic courts" shouldn't decide public policy is to ignore the fact that this is exactly how the left accomplishes what it cannot do so legislatively.
While I agree with much of the substantive agenda of the left, I've been very critical of the left's over-reliance on the courts to achieve that agenda for the same reasons I think Kelo was correctly decided. I agree that this is a conservative country, and liberals need to do a better job of winning elections rather than court cases.
I appreciate your reading this blog, and I invite you to read more before you make presumptions about where I stand on issues
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