Quote of the Day

July 14, 2009

The funniest thing I’ve heard in a while, during today’s Senate Judiciary Committee confirmation hearing of Sonia Sotomayor.  After noting that Justice Scalia had consulted five dictionaries to determine the definition of the word “modified,” Senator Chuck Schumer asked, “Do you believe dictionaries are binding law in the United States?”


Many thanks to Caffeinated Thoughts author Shane Vander Hart for calling my attention to an interesting piece by Randy E. Barnett on the recent Senate Judiciary Committee’s confirmation hearing for Sonia Sotomayor.  I was dismayed to see an article in such a publication as the Wall Street Journal miss the mark so often with respect to some very basic issues Constitutional Law, so I wrote a response to some of the questions Mr. Barnett raised.

Mr. Barnett feels some of the following questions ought to be asked of the prospective Supreme Court Justice:

Does the Second Amendment protect an individual right to arms? What was the original meaning of the Privileges or Immunities Clause of the 14th Amendment? (Hint: It included an individual right to arms.)

I’m afraid Mr. Barnett is mistaken here. Nowhere in the text of the Constitution is there a mention of “an individual right to arms,” rather the Second Amendment protects a collective right to keep and bear arms, to wit: “the right of the people to keep and bear Arms shall not be infringed.”  Moreover, the recent precedent set by certain activists justices in D.C. v. Heller appears to have broadened this right significantly.

Does the 14th Amendment “incorporate” the Bill of Rights and, if so, how and why?

I certainly hope the Senate Judiciary Committee does not waste Mrs. Sotomayor’s valuable time in asking this question.  Simply put, yes the Fourteenth Amendment incorporates the Bill of Rights.

Does the Ninth Amendment protect judicially enforceable unenumerated rights?

As to the function of the Ninth Amendment, this can be a confusing subject, however upon some research I found a quote from Prof. Lawrence Tribe that sums up Mr. Barnett’s mistake quite nicely: “It is a common error, but an error nonetheless, to talk of ‘ninth amendment rights.’ The ninth amendment is not a source of rights as such; it is simply a rule about how to read the Constitution.”  So to ask whether the Ninth Amendment protects anything is really a logically incoherent question.

Does the Necessary and Proper Clause delegate unlimited discretion to Congress?

The “Necessary and Proper Clause,” Art. I Sec 8 Clause 18, does indeed delegate sweeping authority to the Congress, but it is by no means “unlimited,” if for no other reason than that the Bills of Rights and the Constitution itself serve to limit that power.

Where in the text of the Constitution is the so-called Spending Power (by which Congress claims the power to spend tax revenue on anything it wants) and does it have any enforceable limits?

The “so-called Spending Power” (and it is indeed called so by lawyers and judges) is found in Art. I Sec. 8 Clause 1 of the Constitution, though much like the Dormant Commerce Clause that permits regulation of interstate commerce, it not stated explicitly, rather it is implied by the power to collect taxes. It is essentially the other side of the coin, if Congress can lay taxes, they must implicitly have the power to spend the revenues so collected. And indeed there are severe limitations, see: Article I, Section 9, Clause 7. This is particularly curious of Mr. Barnett’s concerns, since the questions that are usually associated with the Spending Power is not whether it exists but whether the Congress may place conditions on its spending to effectively bribe states into adopting legislation, as was done during the Reagan administration, withholding federal highway funds from states that did not raise the drinking age to 21.

Even asking whether “We the People” in the U.S. Constitution originally included blacks and slaves — as abolitionists like Lysander Spooner and Frederick Douglass contended, or not as Chief Justice Roger Taney claimed in Dred Scott v. Sandford — will tell us much about a nominee’s approach to constitutional interpretation. Given that this is hardly a case that will come before them, on what grounds could nominees refuse to answer such questions?

As to the Dred Scott case, there is really only one acceptable opinion from a Supreme Court nominee with respect to this decision: that that case was wrongly decided.

Perhaps the Wall Street Journal ought to do some better fact-checking in the future, and I certainly hope that none of the Senators on the Judiciary Committee are silly enough to take Mr. Barnett’s advice and waste time with these questions.

A recent discussion at the blogcatalog involved an interesting news article.  This reminded me of an equal unlikely lawsuit that happened right here is the United States, in the Western District of Pennsylvania to be precise.  In this case, Gerald Mayo, a rather unfortunate soul who prayed the court to proceed in forma pauperis, that is to say as an indigent with all litigation fees waived by the court, against the party who, as Mayo alleged in his complaint, had violated his civil rights and was “the cause of [his] downfall.”  The opposing party that Mayo named?  “Satan, and his Staff.”

The almost appropriately named District Judge Weber issued a tongue-in-cheek opinion, citing concerns as to whether the court could exercise personal jurisdiction over the defendant, and noting that if Mayo’s suit against the Dark One did proceed, a class action certification under FRCP would be almost certain as joinder of all interested parties would surely be impracticable.

As with most dealings with the Devil, this case did not end happily for Mr. Mayo: “Prayer denied.

I came across this quotation from a leading legal positivist, and I can’t help but find it deeply unsettling:

“Justice is an irrational idea. … [T]hat only one of two orders is ‘just’ cannot be established by rational cognition.  Such cognition can grasp only a positive order … . This order is positive law… .It presents the law as it is, without defending it by calling is just, or condemning it to call it unjust.” Kelsen, General Theory of Law and State 13 (1961).

The trouble is, however, is that is is very close to the mark.  If you want to view justice as rational, then you must have a rational accounting of it.  But are there not as many accounts of justice as there are people on the earth?  What makes one account better than the other?  And if none can be said to be objectively better than the other, does this not merely bring us back the cynical positivism?  Karl Llewellyn has some interesting thoughts on the matter, on his view:

Justice [is] not attainable or even describable substance, but a quest, as being an idea conditioned in the first instance by each quester’s view of the Universe, and conditioned secondly (as Law-Government must always be) by the fact of scarcity.  Whether within an organized group with firm legal-government traditions or within an emerging, half-chaotic world, the justified desires and demands have always exceeded the wherewithal to fulfill them, and they always will.

Karl Llewellyn

I’d like to hear your thoughts on the subject.  All comments and perspectives are welcomed!

Both the Fifth Amendment to the U.S. Constitution and Article I, Section 6 of the New York State Constitution provide that “[n]o person shall be deprived of life, liberty or property without due process of law.” In Kelo v. New London the Supreme Court held that the “public use” requirement is met by mere economic development, a threshold that has been denounced by many as too low. Considering the reaction provoked by the Kelo decision, it may not have the far-reaching consequences that some have feared, as state legislations respond to public outcry with statutory eminent domain schemes that limit state eminent domain power more strictly than the maximum constitutionally allowable. New York’s Eminent Domain Procedure Law Section 302 requires that “at all stages prior to or subsequent to an acquisition by eminent domain of real property necessary for a proposed public project shall make every reasonable and expeditious effort to justly compensate persons for such real property by negotiation and agreement.” This is the maximum to which the eminent domain power may be implemented by government, since the Takings Clause of the Fifth Amendment requires any takings of property to be for public use. However, there may be something to be said about statutory schemes such as New York, which still permit eminent domain powers that may seem draconian at first blush. As Nasim Farjad noted in an article published in the Fordham Law Review in 2007:

Proponents of New York’s current EDPL note that although New Yorkers have benefited greatly from revitalization projects throughout the state, especially in New York City, many are unaware or have forgotten that without the use of eminent domain, key areas of New York City may not have thrived to allow citizens to enjoy the fruits of such projects. Supporters of New York’s eminent domain practices, such as developers, whose development projects could face many obstacles if new laws are passed, may take comfort in using the many successful revitalized areas around New York, most notably within New York City, to demonstrate why New York’s public use requirement should not be redefined to prohibit economic development takings.

The eminent domain takings that transformed Times Square provide an example of the power of eminent domain to revitalize key areas of New York City. The projects, which were designed to rid the area of rampant crime, social problems, and physical blight, did just that – they successfully revitalized thirteen acres of land in Times Square. In its brief in support of the respondents in the Kelo case, the City of New York wrote about the success of using eminent domain in Times Square, which resulted in the land “in and around Times Square [being] reborn as a tourist-friendly destination that, in the 2003-2004 season, drew an estimated 11.6 million people to the Broadway shows in that neighborhood, while the area west of Times Square has since become a new residential neighborhood.” However, the Times Square redevelopment project has done more than attract tourists to the area. According to a 2007 economic impact report released by the Times Square Alliance, the Times Square revitalization has resulted in the area generating outstanding increases in tax revenues – $ 1.1 billion in annual tax revenues for New York City and $ 1.3 billion in annual tax revenues for New York State. The Times Square revitalization’s impact on jobs in the area is even more impressive. According to the Times Square Alliance report, “While Times Square represents only 0.1% of the City’s land area, 5% of the City’s jobs are located in Times Square.” 76 Fordham L. Rev. 1121, 1159-1160

The Takings Clause of the Fifth Amendment to the United States Constitution restricts the government use of the power of eminent domain by requiring just compensation for the taking of private property for public use.

[T]he Takings Clause places conditions on the government if it wishes to exercise its eminent domain power. The first requires the taking be for a “public use.” What constitutes a public use, however, has undergone numerous modifications. These changes have made it difficult to grasp takings jurisprudence. It is agreed that a government may not take property from A and give it to B for a purely private purpose. However, agreement among scholars and courts seems to stop at this point. The continuing debate focuses on when a state should be allowed to take property through eminent domain for a private party by deeming that private party’s use a public use. 40 Conn. L. Rev. 1623, 1631

The recent Supreme Court case of Kelo v. New London dealt directly with this issue, and has been famously criticized by many in the media. However, the aftermath of Kelo has not seen the particularly devastating consequences that have been imagined.

One important lesson of Kelo and the firestorm of public outrage that it sparked is that constitutional protection is by no means the only protection that private property owners have against unbridled and/or overreaching legislative takings. The political process has a large and important role to play in determining whether takings go forward. For instance, in the aftermath of Kelo, where the public outcry was immediate and vocal, the response of the state legislatures in introducing (and even enacting) legislation that would limit the impact of Kelo in state condemnation actions was swift and severe. 35 B.C. Envtl. Aff. L. Rev. 45

Indeed, some state courts have been openly hostile to Kelo:

In reviewing an appropriation similar to that at issue here, a sharply divided United States Supreme Court recently upheld the taking over a federal Fifth Amendment challenge mounted by individual property owners. Although it determined that the federal constitution did not prohibit the takings, the court acknowledged that property owners might find redress in the states’ courts and legislatures, which remain free to restrict such takings pursuant to state laws and constitutions. In response to that invitation in Kelo, Ohio’s General Assembly unanimously enacted 2005 Am.Sub. S.B. No. 167.

The legislature expressly noted in the Act its belief that as a result of Kelo, “the interpretation and use of the state’s eminent domain law could be expanded to allow the taking of private property that is not within a blighted area, ultimately resulting in ownership of that property being vested in another private person in violation of Sections 1 and 19 of Article I, Ohio Constitution.” Section 4(A), 2005 Am.Sub.S.B. No. 167. The Act created a task force to study the use and application of eminent domain in Ohio, and imposes “a moratorium on any takings of this nature by any public body until further legislative remedies may be considered.” City of Norwood v. Horney, 110 Ohio St. 3d 353, 355

Interesting subject.  Tomorrow I will dedicate a post to a discussion of eminent domain law in New York. Happy Fourth of July, everyone!