Jus Commune: Kelo Decision, Undiscussed Factors

The following factors seem to be mostly ignored in the discussions in blogdom:

1. By extending legislative deference down to the local level, the "public" in public use is being partitioned into small, conflicting pieces. Suppose a private company wishes to build a nuclear power plant on certain property and offers the owners a tempting price. The local government can decide the public interest would better be served by a wildlife preserve and prevent the sale. Legislative deference prevents courts from nullifying this legislative determination, and only higher legislative authority can intervene effectively. Only the paramount power of a higher government entity can be used to effect the original private transaction, so the net effect is to push the private sector into the hands of the government.

2. Kennedy's concurrence raises the issue of rational-basis.

'This Court has declared that a taking should be upheld as consistent with the Public Use Clause, U.S. Const., Amdt. 5., as long as it is “rationally related to a conceivable public purpose.” Hawaii Housing Authority v. Midkiff, 467 U.S. 229, 241 (1984); see also Berman v. Parker, 348 U.S. 26 (1954). This deferential standard of review echoes the rational-basis test used to review economic regulation under the Due Process and Equal Protection Clauses, see, e.g., FCC v. Beach Communications, Inc., 508 U.S. 307, 313—314 (1993); Williamson v. Lee Optical of Okla., Inc., 348 U.S. 483 (1955). The determination that a rational-basis standard of review is appropriate does not, however, alter the fact that transfers intended to confer benefits on particular, favored private entities, and with only incidental or pretextual public benefits, are forbidden by the Public Use Clause.'

Now we should not necessarily be upset that the Supreme court has decided to be "hands off" with the states (though in Hawaii Housing Authority v. Midkiff, an agrarian reform scheme that was affirmed mostly because the legislature wanted it, suggests some inconsistency here). More precisely, there is a tendency to defer to politically potent ends or "interesting use" (development, land reform) at the expense of mere boring private use. This would seem to be a principle of "most political excitement".

In any event, the court has backed itself into a corner: what exactly are the "rational-use" limits that might be placed on legislatures, deference aside. In other words, what laws *can't* the majority (or the potent oligarchy) enact?

Alas, FCC v. Beach Communications, Inc. tells us: "In areas of social and economic policy, a statutory classification that neither proceeds along suspect lines nor infringes fundamental constitutional rights must be upheld against equal protection challenge if any reasonably conceivable state of facts could provide a rational basis for the classification." I'm not sure what "suspect lines" may yield--if Property transfers are not suspect I'm not hopeful-- but "fundamental constitutional rights" though precious, are much less than Common Law or Civil Law--they do not include all my Civil rights, even.

This rational basis is what is extended (in the concurrence) to Public Use. But those are very thin restraints. One might *think* that Rationality would propose that transfering property from A to B cannot be rationally willed by a just legislature. Certainly, the language quoted in the dissents (who quote Justice Chase and Commentators Blackstone, and Kent) and above in our discussion from Blackstone, suggest that the Common Law aims at Rationality and must be presumed Rational by judges.

Our main issue here seems to be the futility of "rational-basis". If the judges think the Divine Law is not concurrent with and superior to rationality, and if they construe "rational" to include manifestly unjust acts, then "rational-basis" is meaningless. Whatever the legislature wants is rational because the legislature wants it. "Rights" are no longer secured by rational reasoning, but by paper guarantees, long since undermined. They are limited, in fact, to what the Cable TV ruling says: "fundamental constitutional rights" (as enumerated)

Net score: your rights are enumerated, and Divine Law and Rational Common Law are not among them, if the local or state legislature chooses. Your recourse is to petition paramount sovereign government for legislative relief.