Thursday, June 18, 2009

A Supreme Injustice

I cannot see how the Bill of Rights and any concept of justice do not compel a different ruling, but then again I thought that any reasonable interpretation of the 5th Amendment would not allow the Kelo ruling:

“Splitting 5-4, the Supreme Court ruled Thursday that an individual whose criminal conviction has become final does not have a constitutional right to gain access to evidence so that it can be subjected to DNA testing to try to prove innocence.” This is, alas, consistent with prior law, which made evidence of “actual innocence” surprisingly unimportant post-conviction. It’s also something that can — and should — be corrected by legislation. Will Congress act? It should, and so should state legislatures. Anyone who criticizes such legislation as “soft on crime” should be immediately pantsed, as it would, of course, benefit only the innocent.

Yes, legislatures should correct this, just as they should prevent eminent domain abuse as a result of the flawed Kelo ruling.


Anonymous said...

If you read the summary of the case on the SCOTUS blog, it appears the majority opinion has to do with a separation-of-powers view--that is, that this is not properly an issue for the court to decide but rather legislatures.

Fritz J. said...

Sorry Darren, but I still disagree with you on the Kelo decision. The purpose of the Supreme Court is not to rule on guilt or innocence, but rather to rule on whether a law is constitutional, and if so, was it properly applied. In the Kelo decision they determined that the right to eminent domain was constitutional and that the City of New Haven did not violate it. That said, that does not mean that I agree with the City of New Haven using the right of eminent domain in the manner they did. In fact I think there should be some laws passed restricting government use of eminent domain, but we need to be very careful on how they are written because of the law of unintended consequences.

In this case, according to what I've read, the State of Alaska has laws which would allow such testing and Osbourne has not used them. Chief Justice Roberts mentioned this in writing about the decision. This is not the simple case that it first appears. Quoting from Robert's writings, "To the degree there is some uncertainty in the details of Alaska's newly developing procedures for obtaining postconviction access to DNA, we can hardly fault the State for that. Osborne has brought this §1983 action without ever using these procedures in filing a state or federal habeas claim relying on actual innocence. In other words, he has not tried to use the process provided to him by the State or attempted to vindicate the liberty interest that is now the centerpiece of his claim."

It may be that you and others think there should be such provisions in the law, but that requires that you change the law.

I frequently hear people, who claim to be conservative, object to rulings of the Supreme Court because-they say-the court has made law rather than interpret the law. I would argue that had the court ruled differently on this they would have been making law rather than interpreting law, and making law is the job of the legislative branch, not the judicial. Far too often, in my opinion, the court has stepped beyond its duties and made law. I would point to Roe V Wade as an example of such.

William Brennan said...

That's SCotUS wimping out once again.

Darren said...

Fritz, I view the Kelo decision as flawed *not* because it doesn't comport with my own view of right and wrong, but because I think the Founders' intent regarding "public use" was very clear--and misinterpreted by the Supremes, as they've misinterpreted other very clear meanings of the Founders. It took over 200 years, for example, to *finally* rule that the 2nd Amendment is an individual right....

Fritz J. said...

Darren, while I agree that eminent domain has shifted from what our forefathers intended, I also don't think that our forefathers could envision every contingency and had the ruling gone the other way it would have stopped all redevelopment because suddenly there would have been no way to acquire the property of a citizen who did not wish to sell unless the property was going to be used for purposes related only to government, such as roads, government buildings, etc.

The 5th amendment part refers to these words,"nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation." So the case was about the term "Public Use" because the case had been decided by courts up to and including the Connecticut and no one charged that the City of New London, through its proxy, had not offered to pay fair value for the property. As I said earlier, if you hold that property cannot be taken through eminent domain for any purposes other than government uses, you have stopped all redevelopment where one property owner may wish to object. Now if that is your goal, then you are right and it is a poor decision. However, should you believe that there are occasions where the public good would be served by development or redevelopment of an area, the Kelo decision is correct.

To offer an example, let us suppose that someone came up with an idea which would bring money to the City of Sacramento and everyone agreed that it was a good idea. It might be a stadium to be built by a professional football team, an amusement park, a new housing and shopping development, or anything, but everyone agrees that it is a good idea and should be done because it brings in money and provides jobs and/or recreation or better living spaces for the citizens of Sacramento. A suitable area is found, but there are a few owners who don't want to sell. Under your concept those owners would be able to stop the project even if there had been a vote to proceed with the project, and the vote was 99.9 percent in favor of the project.

My thoughts on Kelo are that the Supreme Court got it right based upon the law, and that we need to pass some laws placing some restrictions on eminent domain, but as I said previously, we need to be very careful about how we write those restrictions because of unintended consequences.

Understand that I'm not simply shilling for the Supreme Court because I think they have gotten a number of decisions wrong over the years, such a Roe V Wade and McCain/Fiengold just to name a couple of the more recent ones which come to mind.

As for the Osbourne case which stated this thread, in effect the Supreme Court punted the ball down the road. Had Osbourne and his attorneys exhausted all appeals through Habeas Corpus their decision may well have been different. My reading of that case is that Osbourne is attempting to create a loophole with the hope that the evidence has degraded to the point where he could wiggle through it.

vanyali said...

Fritz -- it sounds like you like Kelo because you don't like holdouts.

Conservatives would say that landowners should be able to control the use and disposition of their own property. They should be able to hold out if they want to.

If some developer doesn't like it, he can build elsewhere, build around them, or give up, but pulling strings with government to force less connected or less popular landowners off of their own property is bullying.

Using the power of the state to bully people is serious business which should be (and, under a strict reading of the Constitution, was) strictly limited to a few, very narrow, circumstances. Kelo changed that, greatly weakening the concept of ownership in this country. If the state can take your land to give to someone else who is more friendly with a certain politician, then what can't they take? And when can't they take it?

Fritz J. said...

vanyali, I never said I liked Kelo, only that I thought it was correctly decided. I even went so far as to say that I thought we should pass some laws restricting eminent domain, but that we needed to be careful of what we passed owing to unintended consequences. Far too often our legislators pass laws where the consequences turn out to be worse than the original problem.

Supreme Court decisions are based not only on the Constitution, but also on laws passed since the Constitution was written, plus precedent set by previous Supreme Court decisions. Had the Court ruled the other way they would have nullified, among other decisions, Berman v. Parker issued in 1954 which would have meant that the government could only condemn if they built upon and operated the property condemned. The result of that would have meant that in order to clean up a blighted area a government entity would have had to build and operate the development and would not have been allowed to partner with private developers. Since I am frequently inclined to think that our various government entities are incapable of running anything--including government--I am willing to accept that partnership that the Berman decision permitted.

Frequently there are more to decisions than meet the eye at first glance. I started out against what the ruling turned out to be, but after quite a bit of research into the various laws I came to the conclusion that the Court acted correctly.

I read a lot about Kelo, both before it was decided and after the decision was announced. While there are consequences I don't like resulting from the Kelo decision, I do think the Court decided correctly under the laws in effect at the time, and that it is up to us to change the law so that it more accurately reflects what we want.

In the actual Kelo case, I think the City of New London was wrong, but that it was legal for them to do what they did. Were I a resident of that city I would have voted against all of those who made the decision in the following election. As has often been said, just because something is legal doesn't make it the right thing to do.

Lastly, from your argument that the individual has all the rights, you are coming very close to advocating anarchy defined as, "a theory that regards the absence of all direct or coercive government as a political ideal and that proposes the cooperative and voluntary association of individuals and groups as the principal mode of organized society." (Definition from While I don't like a lot of things governments do, I'm not willing to go quite as far. In my 66+ years I have observed many things and come to the conclusion that while always inefficient, sometimes governments get some things right. Just to offer some examples, I approve of having doctors licensed, drivers licensed, and so on. I approve of some of the criminal laws passed to protect us, and I could make quite a list of things if I wished to take the time, but the end result is that sometimes those laws will affect a given instance where I think it produces a poor answer, yet overall is good.

In the end, if there are laws that we don't agree with, we have only ourselves to blame because we are the ones who elected the ones who make the laws. If you want Kelo changed, do as I have done and write to your state representatives and senator expressing what you think needs to be done. You should also write your congressional representative and senators doing the same. If you don't like their answers, talk to their opponents at the next election and work for those whom you think will try to change the law to what you wish it to be.

vanyali said...

(1) If Congress has passed laws, or the Supreme Court has earlier published decisions, that are unconstitutional, it is the Court's duty to so rule. Giving deference to such rules when interpreting the Constitution effectively gives Congress and the Court the power to re-write the Constitution without going through the Constitutionally mandated procedures. That's bad.

(2) Just because local governments can't clean up blight without Kelo doesn't make Kelo right. Maybe government doesn't really have that power under the Constitution.

(3) Strong property rights and enforceable contract rights are not only the foundation of our country, but the necessary foundations of any nation's prosperity in the modern world.

What prevents the poor in the developing world -- let's say Mexico -- from starting businesses and lifting themselves (and their countries) out of poverty? It's sure not laziness, ignorance, or any other inherent failing in the people (just look at how hard they work to get to the US!) It's a lack of secure property and contract rights. Why invest capital to build a store-front if someone else can take it away from you at any time? How can you plan a business deal if you know you will never be able to hold anyone to their word?

Enforcing strong property rights and contract rights, along with national defense, are the chief job of government. Building shopping malls is not. Holding the government to its proper jobs is not anarchy.

Fritz J. said...

vanyali: On this we will have to disagree. All I can say is that I read about the case before it was decided, and read both the majority and dissenting opinions when they were announced, and reluctantly came to the conclusion that the decision was properly decided--after looking up and reading a number of decisions referenced in the opinions. In short, I found the reasoning in the majority opinion more convincing than that of the minority opinions.

In many ways I agree with you in the belief that our various government entities are involved in many areas they should not be if one goes strictly by the Constitution alone. That said, it is still my reading that the Court properly ruled in Kelo even though there is much I dislike about the consequences of that decision.