O'Connor's legacy
By Robert S. Sargent, Jr.
web posted July 11, 2005
…nor shall private property be taken for public use, without just compensation. -- Fifth Amendment to the United States Constitution.
Were the political branches the sole arbiters of the public-private distinction, the Public Use Clause would amount to little more than hortatory fluff. -- Justice O'Connor
By now, everyone knows the issues on the eminent domain case of Kelo v. City of New London. The Court ruled that the taking of private property, if the neighborhood is improved, qualifies for "public use." To evaluate Sandra Day O'Connor's legacy, now that she is retiring, it may be useful to examine her dissent in Kelo.
O'Connor starts out by identifying what "…categories of takings…comply with the public use requirement." She writes: "First, the sovereign may transfer private property to public ownership-such as for a road, a hospital, or a military base…Second, the sovereign may transfer private property to private parties…who make the property available for the public's use-such as a railroad, a public utility, or a stadium." So far so good. Then she gets into the third category which complies with the public use requirement. Citing an earlier case (Berman v. Parker), "…we upheld takings within a blighted neighborhood of Washington D.C." The neighborhood was so bad that "…it was necessary to ‘eliminate all such injurious conditions by employing all means necessary and appropriate for the purpose,' including eminent domain." If the property taken is injurious to the public, it is okay to take it even if not for "public use."
Another case cited is Hawaii Housing Authority v. Midkiff. In this case, "…we upheld a land condemnation scheme in Hawaii whereby title in real property was taken from lessors and transferred to lessees…The Court's holdings in Berman and Midkiff were true to the principle underlying the Public Use Clause. In both those cases, the extraordinary, precondemnation use of the targeted property inflicted affirmative harm on society." So now "Public Use" has been changed to "public benefit:" "Because each taking directly achieved a public benefit, it did not matter that the property was turned over to private use."
Justice O'Connor then turns to the Court's majority opinion: "In moving away from our decisions sanctioning the condemnation of harmful property use, the Court today significantly expands the meaning of public use. It holds that the sovereign may take private property currently put to ordinary private use, and give it over for new, ordinary private use, so long as the new use is predicted to generate some secondary benefit for the public-such as increased tax revenue, more jobs, maybe even aesthetic pleasure." Obviously offended, she writes: "Nothing is to prevent the State from replacing any Motel 6 with a Ritz-Carlton, any home with a shopping mall, or any farm with a factory." And, "The beneficiaries are likely to be those citizens with disproportionate influence and power in the political process…As for the victims, the government now has license to transfer property from those with fewer resources to those with more."
What do we make of all this? She was on the correct side of the issue. She was offended by all the correct criticisms of the majority. But, as usual, as a Constitutional Conservative, I find her jurisprudence to be inferior, even when she's on the right side of the question.
First, if we believe that judges are to be neutral, then what they are personally offended by is irrelevant. Second, as usual, she is willing to bypass the Constitution as in changing the meaning of "public use," to "public benefit when it's injurious to society." Why should she (or we) be surprised if the Court moves from "public benefit when it's injurious to society", to just plain "public benefit?"
Justice Thomas also wrote a dissent in Kelo. He starts off showing he's an originalist. "…it is imperative that the Court maintain absolute fidelity to the Clause's express limit on the power of the government over the individual…" He then defines what the Public Use Clause meant at the time it was written. Citing dictionaries used at the time, he summarized: "The term ‘public use' means that either the government or its citizens as a whole must actually ‘employ' the taken property…[and] the Takings Clause authorizes the taking of property only if the public has a right to employ it, not if the public realizes any conceivable benefit from the taking."
Where O'Connor accepts the results of "public benefit" in Berman and Midkiff, Thomas wrote: "The weakness of those two lines of cases…fatally undermines the doctrinal foundations of the Court's decision." Thomas realizes once you step away from the original intention, anything's possible. He wrote: "Once one permits takings for public purposes in addition to public uses, no coherent principle limits what could constitute a valid public use…" O'Connor never understood this.
Where the liberal wing of the Court is entirely liberated from the text of the Constitution, and the ideal of the Conservative wing is "originalism," O'Connor, even when she was on the correct side of a case, as in Kelo, leaves no lasting Constitutional jurisprudence. Her philosophy seems to be that it's okay to stray from the text, but not too far. To me, this amounts to little more than hortatory fluff. 
Robert S. Sargent, Jr. is a senior writer for Enter Stage Right and can be reached at
rssjr@citcom.net.
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