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Thursday, June 23, 2005
Kelo: O'Connor Surprise
Kelo | Posted by Richard Lazarus at 11:42 AM
I am having to read the opinion quickly while changing planes in Salt Lake. My initial reaction is that the result and the majority opinion author are to be expected, as is the reasoning. The surprise is the stridency of the O'Connor dissent, in light of her questions at oral argument, her Midkiff opinion, and the language of Lingle. Kennedy's concurrence, by contrast, is precisely what I anticipated that O'Connor and Kennedy would jointly sign: a shot of the bow of municipalities of the possibility of heightened judicial review both in the absence of comprehensive planning and where the eminent domain is being used on behalf of private interests to overcame a site specific holdout. All very prudent and very much in keeping with the comments made by Breyer at oral argument who seemed to be ready to carve out a compromise position if it proved necessary for an affirmance. I expect Breyer did so knowing of O'Connor's misgivings, but at the end of the day Kennedy brought the majority home. He did not, however, use the occasion to speculate about different compensation measures as he did at oral argument (and as Tom Merrill's amicus brief invited).
Got to go.
Richard
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Comments
The Kelo homeowners can petition the Court for a rehearing "on the merits" (Rule 44). The Court will grant rehearings to consider "historical evidence" bearing on the Framers' intent. Reid v. Covert, 352 U.S. 901(1956). The Kelo case is based on the Fifth Amendment. When James Madison presented it to Congress, he said that it "prevents every assumption of power in the legislative or executive." When he said "every," he meant a fact of the individual. A fact of the individual is a fact of human experience which does not change even when government seeks to destroy it. A fact of the individual is one in which government
1. seeks to eliminate the fact;
2. at best only succeeds or would, if allowed, only succeed, in eliminating incarnations of it;
3. in the process violates other rights;
4. brings to bear a disproportionate effort; and
5. does not consider alternatives which could achieve the goal.
Housing is such a fact:
1. New London seeks to destroy this housing;
2. New London itself has granted that these
homeowners will have to, and will, seek other ousing;
3. Association, speech and several other protected facts are sought to be destroyed by this eminent domain action;
4. the Kelo eminent domain action is part of a
nationwide, well thought-out plan between developers and politicians to use eminent domain to turn housing over to private developers;
5. the Kelo eminent domain action is not narrowly tailored to achieve a compelling government purpose.
If the Kelo homeowners present this argument to the Court, they will save their housing.
See also Ryskamp, John Henry, "Kelo v. New London: Deciding the First Case Under the New Bill of Rights" . http://ssrn.com/abstract=562521
Posted by: John Ryskamp at June 25, 2005 02:53 PM