Patterico's Pontifications


Bainbridge-Patterico Debate on Kelo and its Effect on the Coalition of the Chillin’

Filed under: Court Decisions,Judiciary — Patterico @ 1:01 pm

This weekend, Professor Bainbridge and I have had a pleasant and spirited debate about the Kelo decision, and whether it ought to cause the members of the Coalition of the Chillin’ to reconsider their membership. I thought it would be useful to collect the links to our posts on the issue in one place.

Professor Bainbridge aroused my interest with a post titled The Party that Says No.

My opening salvo was Professor Bainbridge: Another Defector from the Coalition of the Chillin’??.

Professor Bainbridge responded with Patterico’s Peeved.

I came right back with my Response to Bainbridge.

And the Good Professor provided the final post with an alliterative article titled Patterico’s Persistent.

(I have a short response to that last post, in an update to the Response to Bainbridge post.)

An enjoyable debate. I hope other Coalition members will take note and get involved in the discussion.

29 Responses to “Bainbridge-Patterico Debate on Kelo and its Effect on the Coalition of the Chillin’”

  1. Patterico, here’s a heads up on Kelo I am attempting to circulate to my favorite leading blogs.

    The Kelo decision is already being used and abused by Freeport, Texas and developers. They were poised for this and the ink was hardly dry on the Kelo decision before they moved to steal the properties from their rightful owners.

    Freeport is in Ron Paul’s congressional district, and I am sure this will prompt Paul to act by proposing some sort of corrective legislation in Congress.

    Here are links, including a great column by Loren Steffy of the Houston Chronicle business section:

    ttyler5 (edf81b)

  2. Regarding Kelo, most commentators are missing out on an important feature of that case. All of the nine justices agreed that takings for private use are prohibited by the Takings Clause of the Fifth Amendment, no matter if there is compensation or not. But as recently as 1996, it was unclear what part of the Constitution contains a prohibition on private-use takings. In 1996, the Ninth Circuit speculated in the case of Armendariz v. Penman that “the prohibition of ‘private takings’ is implied from the Public Use Clause.”

    Now, all nine justices of the U.S. Supreme Court seem to have confirmed the Ninth Circuit’s speculation. But actually, the Fifth Amendment is being overstretched. The Fifth Amendment says:

    “nor shall private property be taken for public use, without just compensation.”

    The Fifth Amendment does not say:

    “nor shall private property be taken except for public use with just compensation.”

    The U.S. Supreme Court has rewritten the Takings Clause to say what they want it to say. In reality, the Fifth Amendment does not address takings for private use. It’s really surprising to me that so-called conservatives are so willing to accept this rewriting of the Fifth Amendment.

    If there is any clause of the Constitution that might arguably prevent takings for private use, it would be the Thirteenth Amendment, which bars involuntary servitude (e.g. bars one private citizen from forcing another private citizen to pack up and move off his property).

    We should be concerned that the U.S. Supreme Court is reading something into the Takings Clause that simply isn’t there, even if we wish it were there.

    Andrew (2977e4)

  3. Someone needs to learn about negative implication.

    Angry Clam (f05866)

  4. 🙂 I take it that someone is suggesting I need to learn something about “negative implication.”

    Before answering that suggestion, I should note that the US Supreme Court did address this question in footnote 7 of their 1984 opinion in Hawaii Housing v. Midkiff, but without any analysis. Also, I should note that, regardless of the Fifth or Thirteenth Amendments, the federal government would typically be barred from taking private property for private use, simply because the federal government would have no power under the Necessary and Proper Clause to do such a thing. However, the Necessary and Proper Clause has no bearing on the state governments.

    Okay, am I guilty of overlooking “negative implication”? Again, the Fifth Amendment says, “nor shall private property be taken for public use, without just compensation.” Does this imply that private property cannot be taken at all for private use? Let’s consider that question, without looking at the historical context, just for the sake of simplicity (all but two state constitutions in 1792 contained no prohibirion against takings of any sort). Looking at the simple text of the Takings Clause, does it prohibit taking property from A and giving it to B, both with and without compensation? I don’t see that it does either. The Takings Clause addresses a very specific situation wherein private property is taken for public use, and requires compensation in that situation. It simply doesn’t address a situation where private property is taken for private use. The Bill of Rights doesn’t address lots of situations; it doesn’t guarantee a right to pick who you want to marry, or guarantee a right to cover your head when it rains. I don’t see that the Framers of the Bill of Rights wanted to rule out the possibility that Congress — under rare and limited circumstances — might determine that person A legally owns a piece of private property on federal territory that is of negligible use to person A but that would be incalculably valuable to person B, and so Congress might require a compensated transfer of the property. What could be more fair and just than that?

    Andrew (2977e4)

  5. The Patterico-Bainbridge Debates: A Word From…

    How’s that for a portentous (or is that pretentious) opening?

    Once again, our beloved Coalition of the Chillin’ is under attack, this time from that famous pontificator, Patterico. As longtime readers know, the Coalition is a loose (very, very loo…

    Decision '08 (59ce3a)

  6. I’m not a legal scholar, but that’s an… odd point of view.

    One side-effect of that point of view would be that since ‘private-to-private transfers’ aren’t covered, they don’t fall under the ‘just compensation’ part of the sentence either.

    So, Andrew, I like your house. It would benefit me immeasurably and I’ve convinced the city council to agree.

    So… your house is mine, and you get _no_ compensation.

    You’re arguing the complete elimination of “private” property by saying the government has the right to order transactions _without_ compensation. As long as they don’t put the property to _public_ use.

    And if you don’t think legislatures can interpret plain english more bizarrely than justices, note that here in Washington State, the recent legislative session passed 93 bills with ’emergency clauses’ on them. We didn’t have a budget shortfall in the last session, and we’re projected to have a massive surplus this biennial also – but it is an _emergency_ that we must build a massive research facility to study cloning. Right.

    Al (00c56b)

  7. Hi Al. I’m not arguing that states can’t ban takings for private use. That would be fine with me, I suppose. All I’m saying is that the federal Takings Clause doesn’t dictate what the states have to do in this regard.

    I guess the question boils down to why the words “for public use” were inserted into the Takings Clause. Were they inserted to clarify the kind of situation that the authors were most concerned about and were trying to address? Or were they inserted to prevent the Clause from implying that the government can take private property for private use?

    Hi Al. I’m not arguing against state constitutions or state statutes that ban takings for private use, or that require just compensation for such takings. Such laws are fine with me, I suppose. All I’m saying is that the federal Takings Clause doesn’t dictate what the state law must be.

    I guess the question boils down to why the words “for public use” were inserted into the Takings Clause. Were they inserted to clarify the kind of situation that the authors were most concerned about and were trying to address? Or were they inserted to prevent the Clause from implying that the government can take private property for private use?

    James Madison believed that the federal government could indeed take private property for other than public use. Madison wanted the federal government to purchase all slaves in order to set them free, rather than to put them to public use.

    Andrew (2977e4)

  8. Sorry about repeating the first two paragraphs of the previous post.

    Anyway, here’s an interesting link I found about the original understanding of the Takings Clause, in case anyone’s interested.

    It seems from this link that Madison (who wrote the Takings Clause) probably wanted the phrase “for public use” to mean “for use by someone other than the original owner.” That’s the interpretation that makes most sense to me, given that he wanted the Takings Clause to cover government action that freed slaves, as well as government action that took land from loyalists and gave it other private citizens.

    So, maybe I was partly mistaken. I initially thought the Takings Clause does not apply to takings that are for private beneficiaries. Actually, having read a bit more about it, the Clause seems to have been intended to allow takings that are for private beneficiaries, as long as there is just compensation. Which still means that all nine justices got it wrong in Kelo.

    Andrew (2977e4)

  9. One side-effect of that point of view would be that since ‘private-to-private transfers’ aren’t covered, they don’t fall under the ‘just compensation’ part of the sentence either.

    That would be the most literal reading of the Fifth Amendment: takings are allowed for public and private use alike, with public takings requiring just compensation and private takings requiring no compensation at all (or, for that matter, specifically authorizing government to insult the owner further by intentionally providing “unjust compensation” instead). It’s not a problem with negative implication, as the Clam suggests; few if any would interpret a statute reading “no person shall eat chocolate ice cream, except for dessert” as a prohibition on eating vanilla ice cream for any purpose.

    What I do see here is a prime example of a legal canon whose real name escapes me at the moment, which I’ll therefore dub the Rule of Hella-Stupid. As its (fake) name suggests, the RoHS is that courts should generally read statutes and constitutional provisions literally, but not in situations where doing so would yield a result that is hella-stupid, i.e., so patently absurd that its drafters could not possibly have intended it. The notion that government can take land for public use only with just compensation but may take it for private use with no compensation at all is fully consistent with the literal reading of the Takings Clause, and with the general principle of negative implication, but it’s still wrong because it violates the RoHS.

    That said, I do think Thursday’s could be reasonably justified on either of two theories, neither of which I happen to agree with, but both of which strike me as far more reasonable than anything advanced by the majority:

    1. There is no public use requirement. The phrase “taken for public use” is just a clumsy way of saying “condemned by eminent domain.” To examine further the semantics of the words “public” and “use” is to over-analyze a legal term of art, akin to splitting hairs over how “eminent” a given city’s “domain” is (or isn’t).
    2. There /is/ a public use requirement, but it doesn’t apply to the states. Courts have rightly declined to incorporate the grand jury clause of the Fifth Amendment against the states, and they should have done the same with the Takings Clause, or perhaps the entire Fifth Amendment.

    Of course, not one of the nine on the court would touch either of these theories with a ten-foot pole, and only one (Clarence Thomas) could be persuaded to touch it with a 100 foot pole (i.e., arguing in the Newdow case that the Establishment Clause should be disestablishmentarianized.).

    Xrlq (158f18)

  10. Xrlq, regarding your RoHS, the people who wrote the Bill of Rights were only trying to address problems that they considered to be realistic threats. So they wrote a Bill of Rights that allows the gubmint to do stupid things like criminalizing posession of shoelaces, and taxing snorers more than non-snorers. Thus, it would make sense for the Framers to have not addressed outrageous types of government behavior that they really didn’tt anticipate actually occurring (e.g. Congress taking property from the minority party and giving it to the majority party).

    Anyway, you wrote that the majority in Kelo could have instead argued that, “The phrase ‘taken for public use’ is just a clumsy way of saying ‘condemned by eminent domain.'”

    Indeed, Justice Thomas addressed this very idea. Regarding the words “for public use,” Thomas wrote that if they “served no function other than to state that the government may take property through its eminent domain power–for public or private uses–then it would be surplusage.”

    But I disagree with Thomas on this point. The words “for public use” make clear that we’re not talking about a situation where the government is taking property for purposes of (e.g.) penalizing the owner; surely compensation should not be required in that type of penalizing situation.

    My suspicion is that, because James Madison wanted loyalist landowners and slave-owners to be compensated for their “property,” then consequently Madison must have meant the words “for public use” to mean “for use by people other than the original owner” rather than “for use by the general public.” So, I’ll go with the theory that there really is no public use requirement.

    Of course, my mind may change after studying the whole thing some more. Or after drinking a few beers.

    Andrew (2977e4)

  11. I think of one of the many times when my family traveled to Mexico, when we were stopped by a U.S. agent on the U.S. side of the border and asked if we had any firearms for sporting or defensive purposes. It was all I could do to keep from saying out loud “no, we brought them for criminal purposes, but thanks for asking.

    Xrlq (158f18)

  12. Hey legal eagles, there are real people getting hurt by this:

    ttyler5 (edf81b)

  13. I don’t mean to trivialize that real people are getting hurt. Nothing the US Supreme Court did in Kelo prevents the State of Texas from forbidding what’s happening in Freeport, Texas and places like it.

    Instead of the US Supreme Court fussing about what a nonexistent “public purpose” requirement in the Takings Clause means, the Court ought to instead focus on whether market value = just compensation. Often it plainly does not. For example, studies have shown that elderly people evicted from their homes by eminent domain have reduced life spans. Emotional attachment to one’s home should be a factor in determining what is “just compensation” under the Fifth Amendment. Convincing evidence should be required as to why a reasonable price demanded by a homeowner is not “just compensation.” Fair market value is clearly not “just compensation” when there is a negligible public purpose.

    And, like I said, there’s also the Involuntary Servitude Clause of the Thirteenth Amendment to consider.

    Andrew (8e1925)

  14. Just a thought to inject.

    The original founders/writers intent is not nearly so important as the plain language of the document as understood by us today and by those who ratified the Constitution. After all, we are a nation of the people and this document means nothing if not adopted by the people.

    Paul Deignan (97b2e3)

  15. It’s a safe bet that the states that ratified the Bill of Rights read it as James Madison did. I don’t think a contrary reading by legal elites today should be allowed to contradict the original meaning, especially if the original meanign is totally consistent with the plain language.

    The plain language of the Takings Clause does not require that, when private property is taken, it must be put to use by the general public.

    Andrew (2977e4)

  16. The safe bet is that the people of the various states that read the Constitution, read it for themselves. As we continue to be a nation of the poeple, our written laws must mean what we commonly read them to mean. Our future conduct is guided by these laws, so I think you can see that the virtue of the Constitution is that it is simple in its language and construction.

    There is a general prohibition against the governmental taking of private property (and life and liberty) without due process. This means that any taking is an exception to this general prohibition, but also that an exception can be made if it is consistent with the Constitution. Thus, the source of the exception must start with an allowance in the Constitution.

    It was obvious that there would be a need for an exception for the central government to provide for the common good–to build forts, roads, etc. So the origin of the exception immediately follows in the text of the 5th Amendment. It specifies that the use of the land required by the government must be public. In other words, there must be a valid public use for the taking. Public is not private and use is not purpose. The language is such that this exception was meant to be strictly bounded (otherwise it is no exception at all and the prohibition is meaningless).

    Common people could understand this meaning. They could read a copy of the Constitution and debate its ratification in the pubs and townhalls nowing that they were engaged in a meaningful debate. Today, we require that the Constitution continues to be cmprehensible to ourselves for the written law to serve any purpose.

    There is no provision in the Constitution for the taking of private property for private purposes. This was exactly the type of taking that we understand should be prohibited. The courts decision should be rendered null and void by the impeachement of those justices involved in this violation of the plain language of the Constitution. The Constitution allows that they may interpret the law, not abrogate it for their own preferences. The logic that we rely on for intelligent debate must prevail if we are to remain a nation of the people.

    P.S. The link at my name should be to If you come up with anything else (such as a paternity testing site, please know that this is most likely due to a problem with the server — most likely some form of spyware).

    Paul Deignan (c3d79d)

  17. Patterico,

    Here is a link to microsoft’s anti-spyware program:

    It is in beta, so its a free download. Since the OS is written by MS using proprietary code, you might as well give this a try.

    Tell me if you find something. I suppose the link problem could have been worse. It might have pointed to something worse than an inference that my parentage is in question.

    Paul Deignan (c3d79d)

  18. Hi Paul. You said:

    There is a general prohibition against the governmental taking of private property (and life and liberty) without due process. This means that any taking is an exception to this general prohibition, but also that an exception can be made if it is consistent with the Constitution.

    I disagree. You seem to be saying that the Due Process Clause is a substantive prohibition against deprivations of life, liberty, and property. So, you argue, the only reason that takings are allowed at all is because the Takings Clause makes an exception to the Due Process Clause. But if that were correct, then where is the exception in the Constitution that allows the government to deprive people of liberty, e.g. by drafting them into the military or making them go to school? In fact, the Due Process Clause was well understood in 1789 as a requirement that, when a person is deprived of life, liberty, or property by the government, the person must receive all of the judicial proceedings that are owed to that person according to the law of the land. So, like I said, I disagree that the Tkings Clause creates an exception to the Due Process Clause. One of the great tragedies of our time is that the Due Process Clause has been inflated beyond its original meaning.

    Andrew (2977e4)

  19. What I am saying is that the this clause:

    nor be deprived of life, liberty, or property, without due process of law

    provides for a condition on exceptions to a general prohibition.

    For example, there are exceptions to the life and liberty guarantee:

    Article I Section 8 includes the authority

    To raise and support armies, but no appropriation of money to that use shall be for a longer term than two years;

    To provide and maintain a navy;

    To make rules for the government and regulation of the land and naval forces;

    To provide for calling forth the militia to execute the laws of the union, suppress insurrections and repel invasions;

    To provide for organizing, arming, and disciplining, the militia, and for governing such part of them as may be employed in the service of the United States, reserving to the states respectively, the appointment of the officers, and the authority of training the militia according to the discipline prescribed by Congress;

    It is understood that an conscription in an army involves military discipline and the lack of some civil rights (even the preceding portion of the 5th Amendment makes exceptions for military law)

    No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a grand jury, except in cases arising in the land or naval forces, or in the militia, when in actual service in time of war or public danger

    On the matter of school attendence, there is home schooling. As far as I am concerned, there is no Constitutional requirement to attend school.

    You cannot read the due process clause to mean “whatever any municipality decides” and be consistent with the Constitution. A prohibition is a prohibition. Otherwise, there is no sense in having a prohibition at all.

    Paul Deignan (c3d79d)

  20. Paul, the Due Process Clause derives from Magna Carta. Magna Carta said that the King could not harm anyone “but by the law of the land.” You could certainly argue that the barons at Runnymede did not really get anything out of this part of the deal, but I think most historians agree that they did, and that this clause in Magna Carta has become the cornerstone of every free government in England and the United States. The government must follow the law. This is not an empty prohibition.

    If you want to propose that the Due Process Clause should impose some restraint upon not just the judicial and executive branches, but also upon the legislative branch, then that’s a more subtle proposition. Certainly, other parts of the Bill of Rights impose no restraint on the legislative branch. For example, during wartime, the Third Amendment imposes absolutely no limitations on Congress whatsover. So, it would not be outlandish to suppose that the Due Process Clause imposes no restraint on Congress. Actually, however, the Due Process Clause (unlike the Third Amendment) was intended to impose a modest restraint on Congress: for example, Congress cannot remedy erroneous deprivations of Sixth Amendment rights by cutting prison sentences in half — instead, the Due Process Clause requires that prisoners get their liberty if they have been denied their Sixth Amendment rights.

    Anyway, Paul, if you believe that the Due Process Clause of the 14th Amendment prohibits the states from depriving people of liberty, except to the extent that other parts of the Constitution allow such deprivations, then I don’t see how a state could constitutionally throw people in jail for committing various crimes. Nothing in the Constitution specifically authorizes the states to criminalize burglary, murder, arson, or trespass. If you point to the Tenth Amendment, I could just as easily say that the Tenth Amendment authorizes the states to execute takings that are not barred by the Takings Clause.

    Moreover, I think the framers of the Bill of Rights understood that they were carving out exceptions to the powers granted in the Constitution, rather than the other way around. Yet, you seem to be saying that the war powers of Congress form an exception to the Due Process Clause.

    Finally, I’d like to emphasize, regarding Kelo, that the Supreme Court could have accomplished pretty much the results you want by simply increasing the amount of “just compensation” above fair market value. I do agree that people deserve far more than fair market value if they are to be yanked out of their homes and told to move elsewhere. Also, the State of Connecticut can pass new laws (or constitutional amendments) that bar takings if the property is not going to be used by the general public.

    Andrew (2977e4)

  21. The clause as stated applies to the entire government and its people. So, for example, it also restricts private individuals from stealing from other private individuals.

    Note that I make no reference to the 14th Amendment which was not written at the time of the 5th Amendment. Therefore, the 5th Amendment can be understood as a logical whole together with the preceding amendments and the body of the Constitution itself.

    The due process that I am referring to is in the text of the 5th Amendment. It follows that the Constitution (or Amendments) must be the source of any exception for a taking to be in accordance with due process (as required by the 5th Amendment).

    Finally, note that, “no person shall be denied …. without …”

    is different than

    “everyone shall have … provided …”.

    The set inequalities are reversed. One is a bounded limitation, the other is an unbounded provision as a function of government action derivative to the source of the authority (Constitution). For the people to make an incomplete grant sovereignty to the government, we need the former. This is different from an extraction of sovereignty from the king.

    Paul Deignan (c3d79d)

  22. Paul, if — as you say — the Fifth Amendment’s Due Process Clause (passed in 1792) has always restrained the state governments, then the 14th Amendment’s Due Process Clause (passed in 1868) would be of no use.

    In 1833 I think it was, Chief Justice John Marshall wrote in Baron v. Baltimore that the Bill of Rights did not restrain the state governments. Are you saying that Baron was wrongly decided? The Supreme Court continues today to say that both of the two Due Process Clauses apply only to governmental action, and not to action by private individuals — I think the Supreme Court is correct about that. For example, parents deprive their children of liberty all the time, but that doesn’t mean that a child can go to court and put a stop to it. Yikes, that would make parenting more difficult than it is now.

    Andrew (2977e4)

  23. Andrew,

    The use of the due process clause in the 14th Amendment

    nor shall any state deprive any person of life, liberty, or property, without due process of law

    was to spell out in no uncertain terms to the SCOTUS what a civil war was just fought to achieve.

    There were a number of abhorrent and erroneous decisions by the SCOTUS that moved us towards a Civil War and continued civic strife. One was Dred Scott and not too long after was Plessy.

    So we attempted to correct the Supreme Court by Amendment. But note that Plessy came after the 14th Amendment. So even with the 14th in place, we found that an arrogant and unconstitutional court would only be deterred by a change in personnel. The Constitution provides for just this mechanism, i.e. that judges serve during good behavior.

    Yes, the due process clause in the 14th is redundant and in the end only served as a second warning to an intransigent court much in the way the Terri’s law was passed just to be mocked by today’s court.

    It is our civic responsibility to impeach and remove judges from the bench who will not be bound by the plain language of the Constitution. We can do it now or risk the possibility of sufferring terrible consequences from their continued corruption (and ours). Already, millions have been killed needlessly due to a preversion of the sovereign right to life guaranteed by the Constitution in recognition of the fact that the people are the source of governmental sovereignty. When will we ever outlive that?

    Probably about 100 years after the time that we outlive the stain of slavery (a violation of the Declaration and an intrinsic defect in the original Constitution that had to eventually be eradicated for the survival of the nation).

    Paul Deignan (c3d79d)

  24. Well, I agree with a whole lot of what you said. Paul. Yet, I do think that the case of Barron v. Baltimore was correctly decided.

    Anyway, it’s been an interesting conversation. Thanks.

    Andrew (2977e4)

  25. OK, thanks for the mental work out and the opportunity to put these ideas to the test.

    Paul Deignan (c3d79d)

  26. BTW, I’ve taken a look at the reasoning of Barron and it appears that a case may be made that the reasoning was flawed.

    Perhaps a topic for another time–but it is interesting. I am glad you took the time to link it.

    Paul Deignan (a6d451)

  27. Still Chillin’

    Despite cranky complaints from Patterico and others, I’m sticking with my support of the filibuster deal. Why? the latest evidence I was right comes from this freaking out liberal. (af7df9)

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