Newman on Takings

While–as I will get around to explaining in detail soon–I still strongly disagree with him that Roe v. Wade was counterproductive, I think that Nathan Newman is correct about Kelo v. New London. This isn’t to say that I don’t sympathize with Belle Waring‘s instincts. I certainly don’t think that this use of eminent domain is good public policy in this case, and the Takings Clause argument is plausible (although, since they were compensated, it does require a pretty major doctrinal revision.) Still, I think Newman makes the crucial point. If the question about whether this falls outside of eminent domain relies on whether an area is “blighted,” then basically you’ll have a standard whereby the property rights of the middle class are given a special status, while Robert Moses imitators can continue to condemn the property of poor people for pennies on the dollar. To get the Supreme Court in the business of determining what is an adequate “public interest” is a very, very dangerous game, and one that is likely to have a lot of bad consequences. Just as the Rehnquist Court has developed the idea of a “regulatory taking” in order to make environmental and zoning regulations more expensive, Kelo could result in a significant number of public policy options being taken off the table.

I would like to add that doctrinal innovations often occur in unusual cases, in which changing the doctrine won’t upset many people who would otherwise oppose it. (This was John Marshall’s specialty.) The Rehnquist Court’s federalist jurisprudence is a case in point. Take the revival of the commerce clause as a source of judicial power. Lopez v. U.S., on its own narrow merits, was quite defensible; the Gun-Free School Zones act was a silly, meaningless law that Congress barely even pretended was related to interstate commerce. But, then, of course, bam, a crucial provision of the Violence Against Women Act is struck down. And, the Endangered Species Act, or who knows what else, might be next. Same thing with the awful line of “sovereign immunity” cases. Obviously, nobody in the public really cares about the terms on which state governments negotiate over casino rights with Indian tribes. But once the precedent is established, whammo, you can’t sue under the ADA because the University of Alabama should have the legal status of a 17th century British monarch. And, indeed, they’ve used the strategy in developing their “regulatory takings” jurisprudence. The policy invalidated in Nollan, in all candor, didn’t seem very reasonable; forcing Nollan to build an easement didn’t really seem to solve the problem identified by the commission. But, again, once the policy is established it can be applied to cases in which the regulation is perfectly reasonable, and the effect is to inhibit environmental and zoning regulations passed by democratically accountable bodies on dubious grounds. So don’t be fooled; this case is about far more than any one bad development policy.

So, in a sense, what I want–given that the government is overwhelmingly likely to lose the case–is the opposite of what Atrios does. While I don’t think that O’Connor’s minimalism has much to recommend it as a jurisprudential philosophy, it has had the salutary pragmatic effect of limiting the scope of reactionary doctrines that could otherwise do even more damage. An opinion by O’Connor making it clear that this is a special, egregious case would be vastly preferable to a Scalia opinion that would open the door to countless lawsuits challenging perfectly legitimate policy choices.