Kelo and Raich: The Root of the Supreme Court Problem?

I’ve so far made four posts on the topic of Kelo V. New London, and four updates to boot. They were:
United States Constitution, 1788 – 2005: Promise Unkept
Bad Precedent
Additional Kelo Fallout Thoughts
Will the Money Be Followed?

Well, five, if you count my being inspired about a Constitutional Convention and toying with the idea of snagging the relevant domain.

This is another such post regarding, or at least inspired by, the Kelo decision. It will not be the last, or even the last today. If the topic bores you, feel free to skip these, but it really should interest galvanize everyone, the caveat provided by Justice Kennedy notwithstanding.

Anyway, I mentioned, in an IANAL (nor do I play one on TV) sort of way, the bizarre practice the Supremes have followed in allowing bad precedent to build on bad precedent, with nary a nod to the “source code” in the Constitution.

As it turns out, Skip Oliva (updated to his personal site as former blog is now squatted and spammed) just recently posted about (link updated – man it was a lot of work finding the old post with changed permalink) the problem of what is known as stare decisis; “the longstanding policy of common law courts to adhere to precedent irrespective of its merits.”

His post, at Mises Economics Blog (now archived), was inspired by Raich, which relied similarly to the later Kelo decision on bad precedent, rather than actual Constitutionality. As he told me yesterday:

Today’s Kelo decision only accentuates the need to deal with the problem of “stare decisis.”

I wanted to give this a proper post, rather than a quick link, so I delayed it until today.

This is not only not a new issue, it is downright ancient, and was in the thoughts of the founding fathers. He quotes at length from Thomas Paine, in small part:

Government by precedent, without any regard to the principle of the precedent, is one of the vilest systems that can be set up. In numerous instances, the precedent ought to operate as a warning, and not as an example, and requires to be shunned instead of imitated; but instead of this, precedents are taken in the lump, and put at once for constitution and for law.

Either the doctrine of precedents is policy to keep a man in a state of ignorance, or it is a practical confession that wisdom degenerates in governments as governments increase in age, and can only hobble along by the stilts and crutches of precedents. How is it that the same persons who would proudly be thought wiser than their predecessors, appear at the same time only as the ghosts of departed wisdom? How strangely is antiquity treated! To some purposes it is spoken of as the times of darkness and ignorance, and to answer others, it is put for the light of the world.

It’s an excellent post, and an excellent point being made. It concludes, remember pre-Kelo, with respect mainly to Raich at the time:

There is also the question, under a doctrine of precedents, whether even the Supreme Court can overrule its prior decisions. A number of justices have maintained over the years that after a certain period of time, an erroneous decision must be respected by the Court to prevent a loss of public confidence in the judiciary. This was the majority’s justification for reaffirming Roe v. Wade in 1992.

When faced with a decision as constitutionally baseless as Raich, the lower courts should make every effort to expose the flaws in the Supreme Court’s reasoning and precedents. Such behavior will no doubt be condemned as “judicial activism?? by conservatives (and many leftists), but that is a false argument. True judicial activism occurs when a court exercises jurisdiction in a case without proper constitutional or statutory authority. That was the basic lesson of Marbury v. Madison. Similarly, a commitment to judicial restraint requires the federal courts to dismiss as unconstitutional any federal prosecution of a person accused of illegally growing marijuana for medicinal purposes, yesterday’s Supreme Court decision to the contrary notwithstanding.

Yet oh so applicable in either case, and beyond.

It makes sense that precedent was a known problem at the time of the Revolution. English common law was all about precedent. Whatever inspiration we may have drawn from it, this is the United States, not the United Kingdom.

Perhaps the Court forgetting who and what we are is the root of the problem.

(Repost from here.)

Will the Money Be Followed?

Donald Sensing (link now goes to main page, apparently this is no longer there):

Now that the Supremes have given the Constitutional Seal of Approval to seizing private real property for any reason whatsoever, crony capitalism has become likewise Constitutionally protected. Just follow the money in the Kelo case – I have no doubt that a substantial amount made its way from the developer to the city officials who pushed the property condemnation through.

I’ve been thinking along the same lines. I wonder how long it will take for someone – hello the watchdog press? – to start investigating all the relevant officials and influential “pushers” in an effort to follow said money or other means of undue persuasion.

(Reposted from here.)

Additional Kelo Fallout Thoughts (Updated)

Via Rand Simberg, here another angle (dead link) on what the fallout from Kelo can reasonably be expected to be. In addition to my thinking about what it could do to the real estate market, there is the possibility of using this decision to take out previously safe “we just don’t like it” real estate uses…

Private gun ranges, airfields, RV tracts, hunting preserves, fishing resources, minority religious congregations, newspapers—all are now fair targets for seizure and closure “for the economic benefit of the people.

Let the games begin. The goal: don’t live in the wrong place or use your property for the wrong purpose without adequate payoff to or influence with the powers that be, and don’t get the wrong people mad at you for some reason unrelated to that which they will invent for seizing your property in retaliation.

Update:
On the other hand, analysis at SCOTUSblog (updated link) of Kennedy’s concurring opinion seems to indicate that communities may not get away with running roughshod. I guess we’ll see…

Another Update:
SCOTUSblog has a metablog discussion (apprently transient content, Kelo discussion not readily accessible now) specifically for Kelo and related issues.

Bad Precedent

Another thought I had about the Kelo decision is that they seem to be going by precedent.

Think about it: Do you go back to the Constitution and use that as the supreme arbiter, or do you go primarily with precedent, even if it’s wrong?

This is the most recent in a string of related decisions, and owes the absurd outcome to those decisions. But… how is that right when a given decision can be wrong, or not in keeping with the philosophy of a particular Court? And what’s philosophy got to do with it anyway? Either you can read and are willing to uphold the Constitution, or not. They are not, whether it’s about wheat, marijuana, or the sanctity of your property. Which, come to think of it, is what those cases all had in common.

Not that you ever really own real estate, since you rent it for property taxes and it can be taken if you fail to pay. The locality, in a sense, owns it in the first place, but still, you “own” the right to use it as you see fit and to pay that rent-like tax. The Constitution doesn’t give them the right to evict you for just any reason. At least, it didn’t until some feeble-minded oligarchs weighed in.

Glenn has an additional post on the case, discussing political ramifications and the like.

(Redacted reference to defunct link roundup.)

Coyote Blog has a good post on the topic, which he has covered for some time.

Really. Let’s start throwing out bad precedent, and get us some judges who aren’t afraid to question those who came before them.

(Reposted from here.)

United States Constitution, 1788 – 2005: Promise Unkept

Via Gay Orbit (dead link) and SCOTUSblog (updated link), the Kelo decision is in, and it’s a sad day in a string of many for The Constitution. Apparently some of the Supreme Court Justices ran out of toilet paper and needed something to replace it.

Thomas dissents (updated link), naturally:

I cannot agree. If such “economic development?? takings are for a “public use,?? any taking is, and the Court has erased the Public Use Clause from our Constitution, as Justice O’Connor powerfully argues in dissent. Ante, at 1—2, 8—13. I do not believe that this Court can eliminate liberties expressly enumerated in the Constitution and therefore join her dissenting opinion. Regrettably, however, the Court’s error runs deeper than this. Today’s decision is simply the latest in a string of our cases construing the Public Use Clause to be a virtual nullity, without the slightest nod to its original meaning. In my view, the Public Use Clause, originally understood, is a meaningful limit on the government’s eminent domain power. Our cases have strayed from the Clause’s original meaning, and I would reconsider them.

As do O’Connor (updated link), Rehnquist, and Scalia, with Thomas.

Main Kelo V. New London page (updatedlink), via SCOTUSblog (updated link), links to those and the rest.

The string of property decisions of which this is but the last straw are some of the worst jurisprudence imaginable, and collectively enough of a body slam to enfeeble The Constitution beyond all recognition and rational applicability.

Perhaps our grandchildren will get themselves a new one and do a better job writing it.

Update:
Kevin also covers it nicely. His post made me think about the possible connection between real estate values/bubbliness and the concept of takings to increase tax revenues through alternate use. I also hadn’t read the majority opinion at all, so I wasn’t aware that Stevens had couched it as a states rights issue, of all things. We won’t correctly interpret or enforce the federal Constitution because protecting property is up to your state? Doh.

Update 2:
Removed because the two links/blogs referenced are dead.

(Reposted from original here.)