Precedent and wisdom in the Supreme Court

I always like to be able to see both sides of any issue, but it is hard to see anything good in the Supreme Court's famous Kelo vs. New London ruling of last year that gave cities permission to take people's private property because other people wanted it for themselves.

Try as you might to find some logic in it, you keep coming back to the plain language of the Fifth Amendment of the Constitution, and nowadays that language has the haggard look of a man with his hands thrown up in abject surrender. It seems the Supreme Court has tortured the language to the point where it had to submit and do whatever the court wanted.

Here is the famous "takings clause" of the Constitution:

"…nor shall private property be taken for public use, without just compensation."

It is so devilishly simple, yet it consists of words, and words have meanings, and meanings have interpretations, and interpretations have nuances, and nuances have penumbras, and by the time the Supreme Court gets ahold of them, the penumbras have emanations.

Thus, the phrase "public use" is not so simple after all. Indeed, based on the Supreme Court's logic, the next time you see a sign on a bathroom door that says "not for public use," you should just point out to the owner of the establishment that you don't intend a public use for the bathroom, but a private one, and walk right in to do your business.

Now, I can hear my distinguished attorney friends clearing their throats as they prepare to explain to me how I don't understand the intricacies of the law or the fine points of constitutional interpretation.

Turns out that "public use" is many things to many people, and according to the principle of stare decisis, we have to pay homage to the many rulings on public use that have already found their way into the annals of common and uncommon law.

And so we discovered last June that "public use" now means "public purpose" or - more to the point - "private development."

Thanks to a 5-4 majority decision by the Supreme Court, the city of New London, Conn., has permission to force people out of their homes because private developers want to make heaps of money by building a waterfront hotel or a pharmaceutical research facility or fancy condominiums or high-tone stores or all of the above.

We also discovered that this is to be done not in the name of removing "blight" - as sometimes occurs - but simply because the city was "economically distressed" and was looking for a way to make itself seem more inviting to investment.

This presupposes that the city, as a corporate entity, has rights of its own that surpass the constitutional rights of individuals, and that one of those rights is the right to perpetuate itself into the future by pretty much whatever means are necessary. This gives cities a neat advantage over other corporate entities such as businesses - they don't have to worry about market conditions or remaining competitive through wise policies. Heck no. Instead, when they get on a respirator and start to flat-line, they can just bull-doze everything under and call in some rich developer to build fancy condos and office complexes.

Curiously, Justice John Paul Stevens, who wrote the majority decision in Kelo, later announced that he considered the decision "unwise" but necessary. This is akin to a breakfast chef announcing that, because of inventory problems, he found it unwise but necessary to make this morning's scrambled eggs without eggs.

Of course, sometimes - often even - judges are called upon to approve of the carrying out of laws with which they don't personally agree. Thus, a judge who opposes the death penalty might nonetheless approve the execution of someone because the law called for that penalty and because the law had been faithfully and accurately applied.

But in this case, no intervening law can subvert the intent of the Constitution. This was not a matter of interpreting legislative intent or trying to divine whether a particular law had been written correctly to meet constitutional muster. No, there were just two things to consider - the intent of the city of New London and the plain language of the Fifth Amendment.

Judged thus, it would have been an easy thing for Justice Stevens to have made a "wise" decision and say that New London had no "public use" for the property being seized and thus could not take it.

But instead, Stevens and the other four justices who joined him, inserted another principle into the mix - the principle of stare decisis, or respect for judicial precedent - and thus concluded that "public use" is really "public purpose" because the Supreme Court had said so for at least 100 years.

That sounds straightforward enough, but it isn't.

First of all, not all the members of the court agree about what those rulings of the last 100 years say. This is important, because it should diminish the luster of infallibility which sometimes attaches to Supreme Court rulings. We should remember that relatively few rulings are unanimous, and that men and women with brilliant minds often disagree about what is right and wrong even on the Supreme Court.

In this case, four members of the court entirely disagreed with the majority that there is no difference between public use and public purpose. Justice Sandra Day O'Connor in her dissent worried that the majority's decision would "effectively … delete the words Ôfor public use' from the Takings Clause," and she held that no prior precedent from the court had set the stage for granting the right of a government to take property from one private owner for the benefit of another private owner.

As a result of the Kelo decision, she notes, "The spectre of condemnation hangs over all property. 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 Justice Stephens' reliance on precedents does not persuade her. She reads the precedents differently, for one thing, but more importantly she returns to the original document - the Constitution - for her underlying argument.

"When interpreting the Constitution," she writes, "we begin with the unremarkable presumption that every word in the document has independent meaning, Ôthat no word was unnecessarily used, or needlessly added.'"

In other words, she returns to the plain language of the Fifth Amendment and comes up with an entirely different conclusion than the judges who paid deference to earlier rulings and looked for guidance not from our founders but from their fellow judges.

This should raise some concerns about the importance of precedent in constitutional law, in particular. We do not want to risk our constitutional protections being sawed off bit by bit by intervening judicial interpretations. Each ensuing judge should have the temerity to return to the original document - the Constitution of the United States - and wave it in the face of precedent.

Precedent, in other words, is a judicial construct which owes obeisance to the Constitution, not the other way around.

It is perhaps instructive, therefore, that the thin majority of justices who supported the broadening of government powers to take property based on a reading of precedent rather than a reading of the Constitution are known as the liberals on the court.

Considering the importance placed on stare decisis in the recent confirmation hearings of Chief Justice Roberts and Justice Alito, it is perhaps even more instructive that the liberal wing of the court should have banded together in support of precedent in the Kelo case, even though it led to a decision which Justice Stephens acknowledged was "unwise."

The reason it is so interesting is because these days, we usually hear about the importance of precedent or stare decisis in regard to one particular case - Roe vs. Wade, the case which established as a constitutional principle that a woman has the right to have an abortion.

The argument used by pro-choice advocates is that Roe vs. Wade is "settled law" and that the principle of stare decisis should be applied to Roe so that future justices must all accept that abortion is constitutional no matter how "unwise" they think the ruling is based on their own reading of the Constitution.

It might make sense except for one thing - Kelo vs. New London.

That case shows just how silly - and dangerous - precedent can be when it serves to sever the law of the land from the Constitution itself.

Kelo is now the law of the land, and we are stuck with it.

But that doesn't mean we should not be able to do away with it; after all, everyone knows it is "unwise" - even the person who write it. It will take time; it will take patience. Yet sooner or later, one can hope that a new majority will step forward and say that Justice Stephens was just plain wrong.

In the meantime, there doesn't seem to be any reason why Justices Scalia and Thomas (the only two remaining members of the court who participated in the minority opinion) should not continue to vote in favor of the Fifth Amendment if similar issues return to them in the future.

Indeed, it would be logical and appropriate for them to hope that, despite the existing precedent of Kelo, they could persuade other members of the court to agree with their opinion so that an "unwise" ruling could eventually be replaced by a wise one.

No Supreme Court justice should be held hostage to a legal precedent he or she does not agree with - most especially if it appears that the precedent was accomplished by ignoring the Constitution itself.

Instead, judges must have the latitude to rule according to their best understanding of the law and the Constitution in all cases - even controversial ones such as Roe or Kelo. That guarantees that the court will sometimes be wrong, but more importantly that it will always have the chance to correct itself later.