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More Thoughts on Kilo

There is much excellent discussion going on out in the blogosphere regarding yesterday's Kilo decision. Some are arguing that conservatives should shut up about Kilo lest they fall prey to base hypocrisy. After all, the SCOUTS here sided with majoritarian rule and stayed close to established precedent in the face of a challenge based upon individual rights. Such deference to legislatures is indeed an underutilized jurisprudential approach for the modern SCOTUS.

However, Kilo reveals the slow decline of our judiciary and is worth examining. The court is there to balance the powers of the government against the liberties of the people. These determinations are often subtle, dependent upon the precise facts of the case at hand. There are few simple equations in law. This is the reason we have human judges trained in the law. There must be a point at which even strong consensus in a legislative body cannot seize private property. This is the kind of boundary that the courts must draw. The court need not, must not, legislate from the bench and define the exact terms under which “takings” are valid. But they must look at the facts of a particular case and rule whether this particular taking goes too far, and why they feel that is so. Here, it seems clear that the seizure is unacceptable because the public good sought is so vague and the outcome so uncertain.

To rule this way would not, as some libertarians have claimed, amount to judicial activism given the long history of federal court rulings dealing with eminent domain. The definition of “public use” has expanded over the years from assumed purposes in times of war and national emergency to debatable purposes such as slum removal in modern times. But this is precisely the issue. That definition is tied to the most basic individual right of property and it has expanded at the expense of liberty. And this damaging expansion has come not from legislatures but from the bench.

Judicial activism can be insidious as well as brazen. We recall that abortion was forced down our throats by an overtly messianic judiciary bent on “liberating” women. Few can be found who will argue that Roe vs. Wade was firmly grounded in the written Constitution or widely accepted in the public square. But Roe was just an obvious example of what inevitably happens when jurisprudence is cleaved from the Constitution. Kilo is an example of this slow judicial activism. A coherent doctrine of eminent domain that does not violate individual liberty has been circling the bowl for many years. The homeowners in Kilo asked the Court to stop the degeneration. This Court, like many previous ones, ought to have looked to the Constitution and evaluated how far away they were from it. Instead, they looked only to their last few relevant decisions, and from that perspective Kilo seems reasonable. But it’s like dieter who decides that having three Twinkies today isn’t out of line since they had two Twinkies yesterday. To argue that Kilo was a solid decision based precedent is to acknowledge and accept that the law is what the judges say it is.

I encourage everyone to read Justice Thomas’ excellent dissent. It is a classic example of originalist jurisprudence. It draws a distinction between a specific “public use” likely envisioned by the Founders and the vague “public purpose” accepted by the majority. Quoth the jurist: “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.” He makes the crucial point, lost on the majority, that “the Takings Clause is a prohibition, not a grant of power.” It should be clear that Stevens and Thomas are not reading the same document.

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This page contains a single entry from the blog posted on June 24, 2005 3:36 PM.

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