Friday, February 3, 2017

Justice Clarence Thomas

CONSTITUTIONAL GIANT IN THE LAND OF LILLIPUT
(from our archives, July 2005)

Can Harry Reid?:

"If they, for example, gave us Clarence Thomas as chief justice, I personally feel that would be wrong. If they give us Antonin Scalia, that's a little different question. I may not agree with some of his opinions, but I agree with the brilliance of his mind." ... "I think that [Thomas] has been an embarrassment to the Supreme Court. I think that his opinions are poorly written. I don't--I just don't think that he's done a good job as a Supreme Court justice."

Justice Thomas weighs in on 'Kelo':

"Long ago, William Blackstone wrote that "the law of the land...postpones even public necessity to the sacred and inviolable rights of private property." The Framers embodied that principle in the Constitution, allowing the government to take property not for "public necessity," but instead for "public use".

Defying this understanding, the Court replaces the Public Use Clause with a 'Public Purpose' Clause (or perhaps the "Diverse and Always Evolving Needs of Society" Clause), a restriction that is satisfied, the Court instructs, so long as the purpose is "legitimate" and the means "not irrational". This deferential shift in phraseology enables the Court to hold, against all common sense, that a costly urban-renewal project whose stated purpose is a vague promise of new jobs and increased tax revenue, but which is also suspiciously agreeable to the Pfizer Corporation, is for a "public use". 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'Conner powerfully argues in dissent. 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.

Though one component of the protection provided by the Takings Clause is that the government can take private property only if it provides 'just compensation" for the taking, the Takings Clause also prohibits the government from taking property except "for public use". Were it otherwise, the Takings Clause would either be meaningless or empty. If the Public Use Clause 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. (James Madison: "It cannot be presumed that any clause in the constitution is intended to be without effect").

Alternatively, the Clause could distinguish those takings that require compensation from those that do not. That interpretation, however, "would permit private property to be taken or appropriated for private use without any compensation whatever". In other words, the Clause would require the government to compensate for takings done "for public use", leaving it free to take property for purely private uses without the payment of compensation. This would contradict a bedrock principle well established by the time of the founding: that all takings required the payment of compensation.

The most natural reading of the Clause is that it allows the government to take property only if the government owns, or the public has a legal right to use the property, as opposed to taking it for any public purpose or necessity whatsoever. At the time of the founding, dictionaries primarily defined the noun "use" as "the act of employing any thing to any purpose." The term "use", moreover, is from the Latin utor, which means to use, make use of, avail one's self of, employ, apply, enjoy, etc. When the government takes property and gives it to a private individual, and the public has no right to use the property, it strains language to say that the public is "employing" the property, regardless of the incidental benefits that might accrue to the public from the private use. The term "public use" then, means that either the government or its citizens as a whole must actually "employ" the taken property. ...

The Public Use Clause, in short, embodied the Framers' understanding that property is a natural, fundamental right, prohibiting the government from "taking property from A and giving it to B."

Our current Public Use Clause jurisprudence, as the Court notes, has rejected this natural reading of the Clause. The Court adopted its modern reading blindly, with little discussion of the Clause's history and original meaning, in two distinct lines of cases: first, in cases adopting the 'public purpose" interpretation of the Clause, and second, in cases deferring to legislatures' judgments regarding what constitutes a valid public purpose.

Those questionable cases converged in the boundlessly broad and deferential conception of 'public use" adopted by this Court ... The weakness of those two lines of cases... fatally undermines the doctrinal foundations of the Court's decision. Today's questionable application of these cases is further proof that the "public purpose" standard is not susceptible of principled application. This Court's reliance by rote on this standard is ill advised and should be reconsidered.

There is no justification, however, for affording almost insurmountable deference to legislative conclusions that a use serves a "public use". To begin with, a court owes no deference to a legislature"s judgment concerning the quintessentially legal question of whether the government owns, or the public has a legal right to use, the taken property. Even under the 'public purpose' interpretation, moreover, it is most implausible that the Framers intended to defer to legislatures as to what satisfies the Public Use Clause, uniquely among all the express provisions of the Bill of Rights.

We would not defer to a legislature's determination of the various circumstances that establish, for example, when a search of a home would be reasonable...The Court has elsewhere recognized 'the overriding respect for the sanctity of the home that has been embedded in our traditions since the origins of the Republic' when the issue is only whether the government may search a home. Yet today the Court tells us that we are not to 'second-guess the City's considered judgments" when the issue is, instead, whether the government may take the infinitely more intrusive step of tearing down petitioners homes. Something has gone seriously awry with this Court"s interpretation of the Constitution. Though citizens are safe from the government in their homes, the homes themselves are not.

Once one accepts, as the Court at least nominally does that the Public Use Clause is a limit on the eminent domain power of the Federal Government and the States, there is no justification for the almost complete deference it grants to legislatures as to what satisfies it. These two misguided lines of precedent converged in Berman v. Parker, and Hawaii Housing Authority v. Midkiff. Relying on those lines of cases, the Court in Berman and Midkiff upheld condemnations for the purposes of slum clearance and land redistribution, respectively. "Subject to specific constitutional limitations", Berman proclaimed, "when the legislature has spoken, the public interest has been declared in terms well-nigh conclusive. In such cases the legislature, not the judiciary, is the main guardian of the public needs to be served by social legislation."

I share the Court's skepticism about a public use standard that requires courts to second-guess the policy wisdom of public works projects. The "public purpose" standard this Court has adopted, however, demands the use of such judgment, for the Court concedes that the Public Use Clause would forbid a purely private taking. It is difficult to imagine how a court could find that a taking was purely private except by determining that the taking did not, in fact, rationally advance the public interest.... It is far easier to analyze whether the government owns or the public has a legal right to use the taken property than to ask whether the taking has a "purely private purpose" unless the Court means to eliminate public use scrutiny of takings entirely. Obliterating a provision of the Constitution, of course, guarantees that it will not be misapplied. For all these reasons, I would revisit our Public Use Clause cases and consider returning to the original meaning of the Public Use Clause: that the government may take property only if it actually uses or gives the public a legal right to use the property.

The consequences of today's decision are not difficult to predict, and promise to be harmful. So-called "urban renewal" programs provide some compensation for the properties they take, but no compensation is possible for the subjective value of these lands to the individuals displaced and the indignity inflicted by uprooting them from their homes. Allowing the government to take property solely for public purposes is bad enough, but extending the concept of public purpose to encompass any economically beneficial goal guarantees that these losses will fall disproportionately on poor communities.

Those communities are not only systematically less likely to put their lands to the highest and best social use, but are also the least politically powerful. If ever there were justification for intrusive judicial review of constitutional provisions that protect "discrete and insular minorities," surely that principle would apply with great force to the powerless groups and individuals the Public Use Clause protects. The deferential standard this Court has adopted for the Public Use Clause is therefore deeply perverse. It encourages "those citizens with disproportionate influence and power in the political process, including large corporations and development firms" to victimize the weak.

The Court relies almost exclusively on this Court's prior cases to derive today's far-reaching, and dangerous, result. But the principles this Court should employ to dispose of this case are found in the Public Use Clause itself, not in Justice Peckham's high opinion of reclamation laws. When faced with a clash of constitutional principle and a line of unreasoned cases wholly divorced from the text, history, and structure of our founding document, we should not hesitate to resolve the tension in favor of the Constitution's original meaning. For the reasons I have given, and for the reasons given in Justice O'Connor's dissent, the conflict of principle raised by this boundless use of the eminent domain power should be resolved in petitioners' favor. I would reverse the judgment of the Connecticut Supreme Court."--
excerpts from Justice Thomas' 'Kelo' dissent.
.......


That's funny; "Plantation" Harry Reid claimed Thomas can't put two words together. Did you find that "embarrassing"? I found it well-argued and at times, eloquent.

"Big House" Harry is merely trying to discredit Thomas--not because Justice Thomas is conservative, nor because he's black...but because he's Conservative While Black.

One can almost understand Reid's frustration. By the traditional political calculus, Thomas should have been a liberal Democrat. But Thomas was exposed to the great founding ideas and ideals of our civilization and they resonated with him. His character, intelligence & integrity forbade him from turning his back on those precepts.

Sorry, Sen. Man-stealer; you're not getting your runaway slave back. They don't all look alike and they damn sure don't all think alike, any more than white people do.

Liberal Neo-Racism is not classic racism...but it's racist nonetheless. And that's what should embarrass you, Mr. Reid.

The man who is arguably the best judge in America was poor black kid who grew up running through the piney woods of Georgia. I've done that, too. I love that about my country.

Without embarrassment.

Honor

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