Justice Stevens on Kelo

I just received in the mail the latest issue of the Fordham Law Review containing the papers delivered at a symposium on the jurisprudence of Justice Stevens.  At nearly 1,000 pages long, it would make a good doorstop or blunt instrument for a murder mystery.

I just read Justice Stevens's remarks delivered at the symposium, Learning on the Job, 74 Fordham L. Rev. 1561 (2006).  The Justice's remarks contain an interesting discussion of the evolution of his views on several constitutional issues during the course of his time on the Court.  His remarks on Kelo might be of particular interest to readers of this blog.  After discussing Lingle v. Chevron, Justice Stevens remarked:

Whereas Lingle corrected a past misunderstanding, the second case, Kelo v. City of New London, which upheld an integrated development plan designed to revitalize a city's economy, adhered to precedent while noting that different plans may well pose questions for the future.

Though much criticized, the Kelo opinion was surely not an example of "judicial activism" because it rejected arguments that federal judges should review the feasibility of redevelopment plans, that they should evaluate the justification for the taking of each individual parcel rather than the entire plan, and that they should craft a constitutional distinction between blighted areas and depressed areas targeted for redevelopment.  Indeed, the dissent criticized the opinion for being unduly deferential to the decisions of state legislative and administrative bodies.

A second criticism, however, brings me back to the thought that I expressed at the outset of these remarks.  It is the criticism that the opinion was not faithful to--indeed, that it was "wholly divorced from"--the text of the Constitution.  The relevant constitutional text provides that private property shall not "be taken for public use, without just compensation."  As Justice O'Connor explained in her Lingle opinion, that text does not prohibit any taking of private property, but instead merely places a condition on the exercise of the takings power.  Thus, just as a purely literal reading of the text of the Due Process Clause would confine its coverage to procedural safeguards and entirely eliminate its substantive protections, including those that have made provisions of the first ten Amendments applicable to the states, a purely literal reading of the Takings Clause would limit its coverage to a guarantee of just compensation.

We have nevertheless assumed that the reference to "public use" does describe an implicit limit on the power to condemn private property, but over the years we have frequently and consistently read those words broadly to refer to a "public purpose."  Because one of the opinions rejecting "use by the public" as the proper interpretation of those words was authored by Justice Holmes, and because the debate between Holmes and Brandeis in the Pennsylvania Coal case demonstrates that Brandeis's views with respect to takings were even more deferential than Holmes's, I am confident that both of them would have endorsed our holding in Kelo, just as both of them ultimately endorsed the doctrine of substantive due process.

To me, the most striking part of these remarks is the bold textual claim that the words "public use" in the Just Compensation Clause are an implicit, but not an explicit, limit on government power.  I'm not exactly sure what that means or why it would be significant.  Perhaps Justice Stevens is suggesting that any limiting impact of "public use" has been created by the Court, not the constitutional text, therefore justifying a broader reading of those words.  It is plausible to read "public use" as not being limiting at all, though that to say the least is a controversial position.  But I have particular difficulty with this intermediate concept of implicit limitation, and the suggestion that the application of such limitations is a matter of choice for the Court.

UPDATE:  A version of Justice Stevens's remarks is available here.  The text above has been slightly modified from my original post.

Ben Barros

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