O'Connor's legacy

By Robert S. Sargent, Jr.
web posted July 11, 2005

…nor shall private property be taken for public use, without just
compensation. Fifth Amendment to the United States
Constitution.

Were the political branches the sole arbiters of the public-private
distinction, the Public Use Clause would amount to little more
than hortatory fluff. Justice O'Connor

By now, everyone knows the issues on the eminent domain case
of Kelo v. City of New London. The Court ruled that the taking
of private property, if the neighborhood is improved, qualifies for
"public use." To evaluate O'Connor's legacy, now that she is
retiring, it may be useful to examine her dissent in Kelo.

O'Connor starts out by identifying what "…categories of
takings…comply with the public use requirement." She writes:
"First, the sovereign may transfer private property to public
ownership-such as for a road, a hospital, or a military
base…Second, the sovereign may transfer private property to
private parties…who make the property available for the public's
use-such as a railroad, a public utility, or a stadium." So far so
good. Then she gets into the third category which complies with
the public use requirement. Citing an earlier case (Berman v.
Parker), "…we upheld takings within a blighted neighborhood of
Washington D.C." The neighborhood was so bad that "…it was
necessary to ‘eliminate all such injurious conditions by employing
all means necessary and appropriate for the purpose,' including
eminent domain." If the property taken is injurious to the public,
it is okay to take it even if not for "public use."

Another case cited is Hawaii Housing Authority v. Midkiff. In
this case, "…we upheld a land condemnation scheme in Hawaii
whereby title in real property was taken from lessors and
transferred to lessees…The Court's holdings in Berman and
Midkiff were true to the principle underlying the Public Use
Clause. In both those cases, the extraordinary, precondemnation
use of the targeted property inflicted affirmative harm on
society." So now "Public Use" has been changed to "public
benefit:" "Because each taking directly achieved a public benefit,
it did not matter that the property was turned over to private
use."

Justice O'Connor then turns to the Court's majority opinion: "In
moving away from our decisions sanctioning the condemnation of
harmful property use, the Court today significantly expands the
meaning of public use. It holds that the sovereign may take
private property currently put to ordinary private use, and give it
over for new, ordinary private use, so long as the new use is
predicted to generate some secondary benefit for the public-such
as increased tax revenue, more jobs, maybe even aesthetic
pleasure." Obviously offended, she writes: "Nothing is to prevent
the State from replacing any Motel 6 with a Ritz-Carlton, any
home with a shopping mall, or any farm with a factory." And,
"The beneficiaries are likely to be those citizens with
disproportionate influence and power in the political
process…As for the victims, the government now has license to
transfer property from those with fewer resources to those with
more."

What do we make of all this? She was on the correct side of the
issue. She was offended by all the correct criticisms of the
majority. But, as usual, as a Constitutional Conservative, I find
her jurisprudence to be inferior, even when she's on the right side
of the question.

First, if we believe that judges are to be neutral, then what they
are personally offended by is irrelevant. Second, as usual, she is
willing to bypass the Constitution as in changing the meaning of
"public use," to "public benefit when it's injurious to society."
Why should she (or we) be surprised if the Court moves from
"public benefit when it's injurious to society", to just plain "public
benefit?"

Justice Thomas also wrote a dissent in Kelo. He starts off
showing he's an originalist. "…it is imperative that the Court
maintain absolute fidelity to the Clause's express limit on the
power of the government over the individual…" He then defines
what the Public Use Clause meant at the time it was written.
Citing dictionaries used at the time, he summarized: "The term
‘public use' means that either the government or its citizens as a
whole must actually ‘employ' the taken property…[and] the
Takings Clause authorizes the taking of property only if the
public has a right to employ it, not if the public realizes any
conceivable benefit from the taking."

Where O'Connor accepts the results of "public benefit" in
Berman and Midkiff, Thomas wrote: "The weakness of those
two lines of cases…fatally undermines the doctrinal foundations
of the Court's decision." Thomas realizes once you step away
from the original intention, anything's possible. He wrote: "Once
one permits takings for public purposes in addition to public
uses, no coherent principle limits what could constitute a valid
public use…" O'Connor never understood this.

Where the liberal wing of the Court is entirely liberated from the
text of the Constitution, and the ideal of the Conservative wing is
"originalism," O'Connor, even when she was on the correct side
of a case, as in Kelo, leaves no lasting Constitutional
jurisprudence. Her philosophy seems to be that it's okay to stray
from the text, but not too far. To me, this amounts to little more
than hortatory fluff.

Robert S. Sargent, Jr. is a senior writer for Enter Stage Right
and can be reached at rssjr@citcom.net.

Enter Stage Right -- http://www.enterstageright.com