Scalia criticizes Kelo ruling on private property

U.S. Supreme Court Justice Antonin G. Scalia said Tuesday he does not believe the high court's "infamous" Kelo decision of 2005, which held that cities can take land from some residents with compensation and give it to others for economic development, will be lasting law.

"I do not think the Kelo decision is long for this world," Scalia said in a speech to Chicago-Kent College of Law.

He compared the court's decision in Kelo v. New London, Conn., No. 04-108, to the Dred Scott case, which held that slaves were outside the protection of the U.S. Constitution, and to the court's decision on abortion, Roe v. Wade.

The high court has made "many mistakes" in its 200 years, Scalia told the audience. But he said the court has made very few mistakes in political judgment that provoked overwhelming public resistance.

Regarding the abortion decision, Scalia said as an aside, "in the circles in which the justices traveled, abortion was considered no big deal."

But Kelo, Dred Scott and Roe v. Wade were the three cases he mentioned that he said provoked great, public resistance.

Some surveys show as much as 80 percent of the public opposes the Kelo decision, Scalia said.

He said he is not arguing that high court decisions should be based on public opinion.

His point instead, he said, was that "the form of analysis through which judges attempt to shape the Constitution" to what they consider the needs of society "are doomed to fail."

In answer to a question from the audience about the politicization of the U.S. Supreme Court, Scalia responded:

"The court has not been politicized. The process of selecting judges has become politicized."

This is because, Scalia said, the American public figured out that what the Supreme Court was doing with the theory of the "living Constitution" subscribed to by some justices was "rewriting the Constitution."

If justices intend to rewrite the Constitution, Scalia said, then the selection process for justices "ought to be politicized" and he would prefer that rather than allow the Constitution to be rewritten without interference.

Scalia addressed a full house in the Chicago-Kent auditorium as part of a half-day conference on "Judicial Takings: Property Rights and the Rule of Law."

And he said the Fifth Amendment's prohibition against taking private property for public use without just compensation applies to judges as well as to legislatures and the executive branch.

Scalia's specific subject was the court's decision last year in Stop the Beach Renourishment Inc. v. the Florida Department of Environmental Protection. No. 08-1151.

As background, Scalia said, "the framers attached a good deal of importance to property rights, much more than most modern societies," including American society today.

The framers of the Constitution "would be astounded by the modern idea" in the U.S. "that substantive due process applies to life and liberty, but not property," he said.

In the Florida case, he said, the state of Florida decided to restore some beaches that had been eroded. The state intended to deposit new sand so that the beaches would extend 75 feet further into the ocean.

The state of Florida would own the new land created. The beachfront property owners would continue to own their land up to the mean high water line that existed before the state extended the beach.

Beachfront property owners sued on several grounds, including that the state was taking without just compensation their right to have their property touch the water.

The Florida Supreme Court held that the rights the petitioners claimed, including the right to have their property touch the water even after the beach was extended by the state, did not exist.

In an 8-0 decision, the high court ruled that Florida Supreme Court's action was not a violation of the "takings clause," Scalia said.

Justice John Paul Stevens, who owned beachfront property in Florida, recused himself.

But a much larger issue divided the high court in this same case, Scalia said, namely "whether judicial decrees are ever subject to the takings clause in the first place."

The Stop the Beach Renourishment decision was written by Scalia and concurred in by Chief Justice John G. Roberts Jr. and Justices Samuel A. Alito Jr. and Clarence Thomas.

It held that judicial decisions are subject to the takings clause of the Fifth Amendment.

Four other justices, Anthony, M. Kennedy, Sonia M. Sotomayor, Stephen G. Breyer and Ruth Bader Ginsburg wrote in separate opinions that the plurality decision that judicial rulings were subject to the takings clause went too far and was unnecessary in the current case.

Scalia disagreed. "We didn't take the case to decide Florida law, for Pete's sake," he told the audience at Chicago-Kent.

"There is no excuse not to tackle that question head on. We need to know what judicial questions do violate the takings clause."

Scalia said he found the reasons given by four of his colleagues for "avoiding the key question" troubling.

Two of his colleagues argued, he said, apparently referring to Kennedy and Sotomayor, that when judges decide cases such as the Florida case, the controlling principle could be whether the seizure of property violates due process.

Scalia said he suspects that some justices want to make due process the controlling principle in such matters because that concept is "flabby" and creates "a reservoir of power" for judges in their decision-making.

It was in this vein that he criticized the high court's 2005 ruling in Kelo , in which Scalia dissented. He called that decision "infamous."

Chicago-Kent's Dean Harold J. Krent, who introduced Scalia, said every constitutional law course in America discusses Scalia's theory of constitutional interpretation. Krent said it was hard to think of another high court justice who has been so influential.

Scalia's appearance at the conference was hosted by Chicago-Kent in partnership with the Jack Miller Center, a nonpartisan, nonprofit foundation in Philadelphia "for teaching America's founding principles and history."

But they were not citizens of the United States (according to Taney).

Oh, I agree with that. I just believe Taney was wrong in this belief.

It referred to those who were full citizens -- those who could vote, run for any office, and who owned land (rich, white, adult male citizens). This excluded women, children, slaves, foreigners, and visitors.

One of the numerous problems with Taney's theory is that "the people" changed quite significantly between the 1780s and the 1850s, as the states expanded the franchise to include all white males. This was apparently just dandy with him.

So, states can legitimately, accordingly to Taney, change the definition of a "full citizen of the United States" in some ways but not in other ways. There is absolutely no justification for this distinction in the Constitution or in statute or common law. But Taney finds one, apparently because he is offended by the prospect of Africans as citizens and equals.

A much greater mind than mine has addressed the issue is considerable detail. Let me refer you to the man who led the successful fight against this iniquitous decision.

http://teachingamericanhistory.org/library/index.asp?documentprint=52

To activate the link: Speech on the Dred Scott Decision, Abraham Lincoln, June 26, 1857, Speech at Springfield, Illinois

Wonderful speech, but Lincoln too was a man of his time. In that time, per the very words of his speech, while he was fiercely opposed to slavery, and equally a proponent of equal rights of citizenship for blacks, for all men whatever origin, yet he was a segregationist.

The Founders were not, and Lincoln's own retelling of our founding history regarding black and white people and its comparison to that of his own time, is telling. Fully integrated communities existed in America and in the Americas in the colonial era and onward. But as America the nation approached the times of Lincoln and Douglas, such communities in it became rarer. What is the reason for that dynamic? Compare us say to Cuba of the same era -- a similarly developed place in that era. Yet in Cuba racial intermingling was far more common. The social structure of Cuba of that era was similar to our south, racial intermingling was socially discouraged and there came to be laws against intermarriage. Yet the races still mixed. The social situation in Puerto Rico was less stratified, almost half the population was of racially mixed parentage. The major difference was slavery.

It was the growth of plantation slavery in America which drove racial segregation, even in those states that had abolished slavery. Even Lincoln, the great man and great intellect he was, could not avoid being poisoned by it.

To expand and revise a part of that last:

It was the growth of plantation slavery in America which drove racial segregation. That growth of an enslaved, ill educated, people absent of well-formed family was not only toxic to those directly caught in it, it was hobbling to all.

There simply were not enough free blacks in the population to undo the damage the common perception of enslaved, broken, blacks caused. In Puerto Rico there were many free blacks, and the image of enslaved, ill-educated, broken blacks never took hold as the cultural image of any black.

This is why a man like Herman Cain is SO MUCH a necessity of our time, as an example, perhaps.

Interesting comments.

As far as Cuba goes, extensive black slavery didn’t really get going till about 1800, when the sugar industry began its development as a replacement for falling production in Haiti.

I don’t think you can blame the low status of blacks in America vs. Cuba on the plantation system, since this system was even more widespread in Cuba than in southern states. The state with demographics closest to that of Cuba was probably SC.

In a perverse sense, I wonder whether the Declaration of Independence may have had some perverse contribution to the decline in status of blacks after independence that you mention.

In Spanish Cuba whites were superior to blacks, but nobody was really free by American standards, and black/white and slave/free were just two of the many gradations of status from a field hand to the Viceroy. Nobody was equal.

In US, the Declaration says all men are equal, but black slaves obviously were not equal. This is the only significant status difference in the entire country, contrasting with the multiple legal status variables in Cuba.

There are two logical ways to deal with this contradiction.

One can decide that therefore slavery is wrong and should be eliminated, allowing all to be equal. The route chose by the abolitionists and (eventually) the North.

Or one can line up with Calhoun, Taney and Stephens and decide that since all men are equal and blacks aren’t equal they must not really be men. Or, in Taney’s terms, they aren’t “people.”

BTW, blacks (using US definition) are somewhere between 30% and 60% of the Cuban population, depending on which statistics you believe. Discrimination against blacks is a good deal more common than the Cuban government and US media will admit.

"So, states can legitimately, accordingly to Taney, change the definition of a "full citizen of the United States" in some ways but not in other ways."

Dred Scott was decided before the slavery amendments (13th, 14th and 15th) were passed. At the time of the decision, slaves were property.

Now, a state which abolished slavery could make freed slaves citizens of that state, but states had no power to make them citizens of the United States -- that power was reserved to the federal government.

Consequently, a free slave who traveled out of his state had no rights. The 14th amendment was passed, making the slave a "citizen of the United states" with limited rights (defined in later court cases) which were applicable in all the states.

"http://teachingamericanhistory.org/library/index.asp?documentprint=52"

Your link contains the words of Abrahan Lincoln discussing the sacredness of the U.S. Constitution which he believed protected the rights of negros. This, coming from a man who a) suspended habeas corpus, b) did not believe in the constitutional right of the states to secede from the Union, and c) was against mixed-marriage (that's too much equality, I guess).

"In US, the Declaration says all men are equal, but black slaves obviously were not equal."

Neither were women and children -- and they were citizens! Even today we deny the right to vote and the right to bear arms to felons.

(And I believe the phrase is, "all men are created equal". The U.S. Constitution was created to define which, and whose, rights would be protected.)

The U.S. Constitution was created to define which, and whose, rights would be protected.

That IS an interesting theory. The Constitution was not written to codify and systematize the exercise of the rights proclaimed in the Declaration. It was rather written to decide whose rights, as defined in the Declaration, would be limited or removed.

One of the many problems with this theory is that the Constitution did NOT say the rights it documented for "the people" did not include people of African ancestry. Taney's attempt to "read this into" the text notwithstanding, the Constitution is not a racist document.

Although, to be fair, it is likely every single one of those who signed it were racists by today's standards.

"One of the many problems with this theory is that the Constitution did NOT say the rights it documented for "the people" did not include people of African ancestry."

Well, no. It did not specifically exclude people of African ancestry. Nor did it specifically exclude women and children. But those groups were excluded.

For example, Article I, Section 2 reads (in part):

"The House of Representatives shall be composed of Members chosen every second Year by the People of the several States ..."

Chosen by "the people". Not "the inhabitants", not "the persons", not even "the citizens". The people.

Who voted in 1787? It varied a little from state to state but basically they were white, adult, male citizen landowners. Those were "the people" with full rights. They were the ones who had something to lose.

Granted, since that time and with the addition of several amendments, the definition of "the people" now includes women and all races. But this gives us an insight as to who the Founders were protecting.

Who voted in 1787? It varied a little from state to state but basically they were white, adult, male citizen landowners.

True, in general. However, in at least 5 states blacks had the legal right to vote in 1787.

What Taney did was to go back in history and retroactively exclude those, admittedly few in number, voters from "the People" who established the Constitution. It was not an exercise of states' rights, it was a denial of those rights. He said that regardless of what individual states did, Africans were not and never could become citizens of the United States.

This was not only morally wrong, it was historically inaccurate. When Taney didn't like the facts, he just ignored them.

Disclaimer: Opinions posted on Free Republic are those of the individual posters and do not necessarily represent the opinion of Free Republic or its management. All materials posted herein are protected by copyright law and the exemption for fair use of copyrighted works.