Saturday, November 10, 2007

The Bill of Rights and Kelo v. City of New London

REVISED, 11/11/07

I hereby recant my earlier argument that the Bill of Rights was meant, originally, to apply to the States. It is now clear to me that it was meant to apply only to the central government, even though Madison had hoped that the passage of a federal Bill of Rights would cause the States to more jealously safeguard the liberties of their citizens. (On the latter point, see Irving Brant's The Bill of Rights: Its Origin and Meaning, 1965 edition, pp. 49-50. For more about the history of the Bill of Rights, go here.)

Having recanted, I must now ask whether the Fourteenth Amendment really "incorporates" any of the rights enumerated in the Bill of Rights; that is, whether any article of the Bill of Rights properly applies to the States. I am now persuaded that the first eight articles of the Bill of Rights (the First through Eighth Amendments) were meant to apply to the States by the framers of the Fourteenth Amendment.

First, there is Justice Hugo L. Black's dissent in Adamson v. California; for example:

My study of the historical events that culminated in the Fourteenth Amendment, and the expressions of those who sponsored and favored, as well as those who opposed, its submission and passage persuades me that one of the chief objects that the provisions of the Amendment's first section, separately and as a whole, were intended to accomplish was to make the Bill of Rights, applicable to the states. [n5] With full knowledge of the import of the Barron decision, the framers and backers of the Fourteenth Amendment proclaimed its purpose to be to overturn the constitutional rule that case had announced. This historical purpose has never received full consideration or exposition in any opinion of this Court interpreting the Amendment.

In construing other constitutional provisions, this Court has almost uniformly followed the precept of Ex parte Bain, 121 U.S. 1, 12, that

It is never to be forgotten that, in the construction of the language of the Constitution . . . , as indeed in all other instances where construction becomes necessary, we are to place ourselves as nearly as possible in the condition of the men who framed that instrument.

See also Everson v. Board of Education, 330 U.S. 1, 8, 28, 33; Thornhill v. Alabama, 310 U.S. 88, 95, 102; Knowlton v. Moore, 178 U.S. 41, 89, 106; Reynolds v. United States, 98 U.S. 145, 162; Barron v. Baltimore, supra, at 250-251; Cohens v. Virginia, 6 Wheat. 264, 416-420.

Second, there is Richard L. Aynes's article, "On Misreading John Bingham and the Fourteenth Amendment" (Yale Law Journal, October 1993); for example:
Shortly after the Fourteenth Amendment had been proposed, John Norton Pomeroy authored a treatise entitled An Introduction to the Constitutional Law of the United States. At the time, Pomeroy was Dean of the Law School and Griswold Professor of Political Science at the University of New York. [203]

In this treatise, Pomeroy described the provisions of the first eight amendments as "the immunities and privileges guarded by the Bill of Rights." [204] He suggested that the generality of the language used in the first eight amendments could be read to indicate the amendments applied to the states as well as to the national government. [205] Pomeroy recognized that Barron v. Baltimore [206] and state cases following it held the first eight amendments applied only to the federal government. [207] He declared this result "an unfortunate one" [208] which called for a remedy. [209] According to Pomeroy "[s]uch a remedy is easy, and the question of its adoption is now pending before the people." [210] Citing the portion of the Fourteenth Amendment drafted by Bingham--all of Section One but the Citizenship Clause--Pomeroy considered this provision "by far more important" than any other amendment except the Thirteenth Amendment. [211] Echoing Bingham's views that the Amendment infringed on no right of the states, Pomeroy wrote: [Page 90]
[The Fourteenth Amendment] would give the nation complete power to protect its citizens against local injustice and oppression; a power which it does not now adequately possess, but which, beyond all doubt, should be conferred upon it. Nor would this amendment interfere with any of the rights, privileges, and functions which properly belong to the individual states. [212]
Pomeroy's publications, like those of Farrar and Paschal, were known nationally. [213] Secretary of State Elihu Root, a student of Pomeroy's, remembered him as possessing "broad and accurate learning and a powerful and discriminating mind, capable of the most accurate analysis, and a strong sense of proportion." [214] Pomeroy was an important Republican theoretician who, like Paschal, has been described as a "state-rights nationalist." [215] Illinois Senator Lyman Trumbull relied on Pomeroy on the issue of voting qualifications in congressional elections. [216] Furthermore, West Point and various other colleges used his treatise as a textbook. [217]

In a contemporary review of Pomeroy's volume, the Nation praised it as a "statesmanlike" investigation of the Constitution and labelled the author "so impartial a writer." [218] The Nation endorsed Pomeroy's view that the Bill of Rights was not as yet enforceable against the states and, consequently, argued that the pending Fourteenth Amendment should be adopted. [219]...

[Representative John Armor] Bingham [principal author of the Fourteenth Amendment] was a respected lawyer and congressman; his reasoning was cogent and consistent; and his view that the Fourteenth Amendment applied the Bill of Rights to the states was widely shared by contemporary politicians and legal scholars. An analysis of the initial judicial interpretations concerning the Fourteenth Amendment reveals that several judges also believed that the Fourteenth Amendment applied the Bill of Rights against the states....

In United States v. Cruikshank, [270] the Court, in an opinion by Justice Waite, held that the Fourteenth Amendment did not apply the Bill of Rights to the states. [271] This was a repudiation of original intent rather than an attempt to apply it.

Indeed, many contemporary observers of the Court's decisions agreed with this assessment. [272] In 1876, Senator Oliver Morton suggested that the Supreme Court had distorted the intent of the Fourteenth Amendment: "The fourteenth and fifteenth amendments which we supposed broad, ample, and specific, have, I fear, been very much impaired by construction, and one of [Page 100] them in some respects almost destroyed by construction." [273] Similarly, in 1886 former Congressman and U.S. Senator James Blaine lamented that as a result of Supreme Court decisions:
[T]he Fourteenth Amendment has been deprived in part of the power which Congress no doubt intended to impart to it....

Undoubtedly a large proportion of the members of the Congress, while following the lead of those who constructed the Fourteenth Amendment, sincerely believed that it possessed a far greater scope than judicial inquiry and decision have left to it. [274]...
Although Bingham had his critics, his colleagues in the House of Representatives and the leaders of his party respected him and frequently commended his reasoning ability. Moreover, Bingham's view that the Privileges or Immunities Clause of the Fourteenth Amendment applied the Bill of Rights to the states was not "singular." Many of his contemporaries shared this view, including three highly-regarded legal treatise writers. The first federal courts to apply the Fourteenth Amendment decided cases consistently with Bingham's position. In fact, as Michael Kent Curtis found, no contemporary source explicitly denied the contention of Bingham and his allies that the Fourteenth Amendment would enforce the Bill of Rights against the states. [296] Immediately after Senator Howard's speech in the Senate stating that the Bill of Rights constituted a major portion of Fourteenth Amendment privileges and immunities, the Chicago Tribune reported that the caucus of Union Republican Senators agreed to limit debate on the Fourteenth Amendment. This action was taken because the Amendment had "already [been] thoroughly discussed and understood." [297] Likewise, Governor Reuben E. Fenton of New York urged speedy ratification of the Amendment insisting that its provisions "are understood, appreciated and approved." [298]
In sum, the first eight amendments to the Constitution, in their entirety, apply to the States. And they do so without resort to the kind of piecemeal "incorporation" that has failed to apply some of the amendments (or portions thereof).

With regard to the Fifth Amendment's Takings (or Public Use) Clause, the application of which was at issue in Kelo v. City of New London (2005), many libertarians (myself included) were outraged by the Court's decision to allow the seizure of private property for the benefit of private parties. My view, at the time, was that the Fifth Amendment (in toto) applies to the States because it was meant to at the time of its adoption (along with the rest of the Bill of Rights). That the Fifth Amendment actually applies because of the intent of the framers of the Fourteenth Amendment (as discussed above), does nothing to alleviate my outrage at the Kelo Court's action. The Court's 5-4 majority found for the city and against the persons (Susette Kelo et al.) whose property had been seized. In doing so, the pro-government majority (led by Justice John Paul Stevens) applied dubious precedent:
This Court's authority...extends only to determining whether the City's proposed condemnations are for a "public use" within the meaning of the Fifth Amendment to the Federal Constitution. Because over a century of our case law interpreting that provision dictates an affirmative answer to that question, we may not grant petitioners the relief that they seek.
The majority opinion is a transparently statist and unconstitutional screed. As Justice Clarence Thomas wrote in dissent,
[t]he disagreement among state courts, and state legislatures' attempts to circumvent public use limits on their eminent domain power, cannot obscure that the Public Use Clause is most naturally read to authorize takings for public use only if the government or the public actually uses the taken property.

Our current Public Use Clause jurisprudence, as the Court notes, has rejected this natural reading of the Clause. Ante, at 8-10. 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 in Berman v. Parker, 348 U. S. 26 (1954), and Hawaii Housing Authority v. Midkiff, 467 U. S. 229 (1984), cases that take center stage in the Court's opinion. See ante, 10-12. The weakness of those two lines of cases, and consequently Berman and Midkiff, 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...

The "public purpose" test applied by Berman and Midkiff also cannot be applied in principled manner. "When we depart from the natural import of the term 'public use,' and substitute for the simple idea of a public possession and occupation, that of public utility, public interest, common benefit, general advantage or convenience ... we are afloat without any certain principle to guide us." Bloodgood v. Mohawk & Hudson R. Co., 18 Wend. 9, 60-61 (NY 1837) (opinion of Tracy, Sen.). Once one permits takings for public purposes in addition to public uses, no coherent principle limits what could constitute a valid public use-at least, none beyond Justice O'Connor's (entirely proper) appeal to the text of the Constitution itself. See ante, at 1-2, 8-13 (dissenting opinion). I share the Court's skepticism about a public use standard that requires courts to second-guess the policy wisdom of public works projects. Ante, at 16-19. 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. Ante, at 7-8. 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. Cf. ante, at 9-10 (O'Connor, J., dissenting) (noting the complicated inquiry the Court's test requires). The Court is therefore wrong to criticize the "actual use" test as "difficult to administer." Ante, at 8. 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. Ante, at 7-8, 16-17. 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.

  • I was right about the applicability of the Bill of Rights to the States, even though I was wrong about the circumstances under which the Bill of Rights became applicable to them.
  • I was right about Kelo v. City of New London for the right reasons, namely, that (contra some States' rights absolutists) it was a proper issue for the U.S. Supreme Court to decide, and the Court decided it wrongly.