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Saturday, June 25, 2005
O'Connor
Kelo | Posted by Eric Claeys at 03:24 PM
I have a couple of reactions to Marty's thoughts about Justice O'Connor. I should warn up front that I'm in the same boat as Nicole, except more so -- I co-authored an amicus brief by the Claremont Institute arguing that the Court should take the position that Justice Thomas took in his dissent. (Anyone interested can read the brief here.) But I've been curious about O'Connor's positions for reasons similar to Marty. For several reasons, I'd be especially interested in others' reactions.
One lesson is more specific to O'Connor, and specifically to her pragmatism. In Palazzolo, O'Connor wrote a concurring opinion that described regulatory-takings law seem as ad-hoc and pragmatic as possible. Taken together, O'Connor's opinions in Lingle and Kelo illustrate nicely one recurring danger with pragmatism: By purporting focusing heavily on particulars, a pragmatist may miss the fact that she is really resolving different individual cases by appealing to different overarching theories of behavior and morality. In Lingle, O'Connor justified getting rid of the Agins substantially-advance test by appealing to the most REalist and pro-state elements of takings law; in Kelo, she appealed to the most libertarian and pro-freedom elements of takings law. This is probably not a fatally-damning defect in pragmatism, or at least not as practiced by more accomplished pragmatists like Richard Posner. But the disjunction between her opinions in Kelo and Lingle is probably representative of a serious risk with pragmatism in practice.
My other reactions to O'Connor's opinion relate more generally to the conservative wing of the Court. Takings law highlights a few real hard tensions in the way the Court's conservatives see con law. Excepting Justice Thomas, the conservatives sympathize with original meaning but also consider policy to varying degrees. The Kelo case exposes tensions between those alternatives in a couple of ways. Marty covered the first -- how do you come up with a coherent way to decide for Kelo when you've compromised the original meaning of "public use" because you agree that it's fundamentally OK to oust homeowners to build private dams and irrigation projects. I don't think this problem was fatal to the conservatives in Kelo as Marty suggests, but it is a serious problem.
Second, the public-use issue highlights problems that arise if, as the Court's conservatives do, one is cautious in one's originalism. The conservatives will sometimes follow originalism, but they bring to their originalism a cautiousness -- they won't embrace an original understanding unless the constitutional command is pretty focused, and unless the evidence seems clear to them that the Constitution requires the command. in other words, even if the Public Use Clause means what Justice Thomas says it means -- use by the public -- some condemnations that occur in local city practice could still be justified as exercises of the police power and not the eminent-domain power. So then, to apply originalism in a coherent manner, the conservatives would need to get straight on the original difference between the police power and the eminent domain power -- the subject of regulatory-takings jurisprudence. But the original meaning of the Takings Clause is not nearly as clear as the original meaning of the Public Use Clause, especially as it applies when the government tries to use the police power to condemn property. So even if the conservatives wanted to follow the original meaning of the Public Use Clause, blight cases and assembly cases would still give them fits. Keith Whittington and Randy Barnett have called the problem here one of constitutional construction -- the Constitution is determinate in part, but not in full, and a judge needs to fill in substantial gaps to make the original meaning of a provision work.
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