Justice Scalia on Kelo and Korematsu

Washington Post ^ | February 8 2014 | ILYA SOMIN

[JerseyanExile]

In a recent speech in Hawaii, Supreme Court Justice Antonin Scalia made some interesting predictions about two of the Supreme Court’s most notorious decisions: Kelo v. City of New London, which ruled that government can condemn private property and give it to other private owners to promote “economic development,” and Korematsu v. United States, which upheld the internment of over 100,000 Japanese-Americans in concentration camps during World War II.

On Kelo, Scalia reiterated his 2011 prediction that the decision will eventually be overruled, stating that it “will not survive.” Kelo was a closely divided 5-4 decision (Scalia voted with the dissenters) that generated an unprecedented political backlash across the political spectrum, and has also been repudiated by every state supreme court which has considered the question of whether to adopt it as a guide to the interpretation of their state constitutions’ public use clauses. In 2011, Justice John Paul Stevens, the author of the Kelo majority opinion, conceded that he made a significant, “embarrassing to admit” error in his analysis of precedent (though he continues to defend the result on other grounds).

On Korematsu, Scalia unequivocally stated that the ruling was “wrong,” thereby differing with the small but noteworthy group of conservatives who have defended the decision in recent years, such as Judge Richard Posner and columnist Michelle Malkin. But he also predicted that a similar internment might be upheld in the future:

“But you are kidding yourself if you think the same thing will not happen again,” he said.

He used a Latin expression to explain why. “Inter arma enim silent leges … In times of war, the laws fall silent.”

[2ndDivisionVet]

“And how we burned in the camps later, thinking: What would things have been like if every Security operative, when he went out at night to make an arrest, had been uncertain whether he would return alive and had to say good-bye to his family? Or if, during periods of mass arrests, as for example in Leningrad, when they arrested a quarter of the entire city, people had not simply sat there in their lairs, paling with terror at every bang of the downstairs door and at every step on the staircase, but had understood they had nothing left to lose and had boldly set up in the downstairs hall an ambush of half a dozen people with axes, hammers, pokers, or whatever else was at hand?... The Organs would very quickly have suffered a shortage of officers and transport and, notwithstanding all of Stalin's thirst, the cursed machine would have ground to a halt! If...if...We didn't love freedom enough. And even more – we had no awareness of the real situation.... We purely and simply deserved everything that happened afterward.”

― Aleksandr Solzhenitsyn

[yawningotter]

Kelo used Wickard v. Filburn as precedent. Wickard v. Filburn turned the Constitution upside down by allowing the government to use the commerce clause to restrict the liberty of an individual farmer, essentially saying that he violated the Constitution. Any case law based on Wickard v. Filburn is inherently bad law.

[definitelynotaliberal]

Chilling!

[Donnafrflorida]

dred scott
abortion
prohibition
kelo
obamacare

[Ken H]

Kelo was a Fifth Amendment case.

[OneWingedShark]

Kelo used Wickard v. Filburn as precedent.

Really!? Wow… that gives me more reason to hate Wickard.

Wicard is also the one that the War on Drugs, and all the terrible case-law based on it, rests.

[Jacquerie]

The 17th Amendment made Wickard possible. There is an eighty year fetid crust of anti-constitutional court decisions that prevent restoration of freedom. Constitutional amendments which refederalize the government are an absolute must.

[jamaksin]

Ahem!

[Haiku Guy]

The Kelo House’s neighborhood is now blighted empty lot. This is the Public Use for which it was condemned.

[Gene Eric]

>> Constitutional amendments which refederalize the government are an absolute must.

Levin’s recommendation to repeal the 17th?

[Jacquerie]

Yes, and more. He would have super majorities of state legislatures overturn Scotus decisions, administrative regs, and congressional statutes.

[Gene Eric]

Then why the objection, jamaksin?

[Bigg Red]

I hope your pattern prediction holds.

[GBA]

Voting for Kelo should be grounds for automatic dismissal from the Supreme Court, just as being a marxist should be.

Marxism is a violation of the Bill of Rights, incompatible with liberty and freedom. It's rise is the end of a free society.

Vote the marxists and their evil out of power while that is still possible, before their inevitable bloodbath.