The Supreme Court, Kelo, and Cronyism

by Cliopatria

Sorry for the long silence. I had a major grant writing deadline that absorbed the first two weeks of June followed by a two week trip to Oklahoma and Texas to visit relatives. Those of you who view the “Red States” with fear and loathing may be pleased to know that our Kerry/Edwards sticker did not attract any hostility. (Of course, some people may not have remembered who Kerry and Edwards were.)

The Supreme Court made some interesting decisions while my wife and I were traveling. Slate has a fascinating and extremely informative conversation on these decisions. (The link goes to the first page in the dialogue.) I recommend it highly.

The Kelo decision on eminent domain has attracted comment on this Blog and elsewhere. I really do believe that many people who oppose it are confusing bad policy with unconstitutional action. In particular, many think that the danger of “insider influence” or cronyism requires, in eminent domain cases, a constitutional limitation on the ability of government to define public good or public purpose in these cases. That may or may not be a good idea, but I don’t think the Supreme Court was in a good position to accomplish this.

The dangers of cronyism are real. They have been demonstrated many times in our history, but in and of itself, cronyism is not unconstitutional. In fact, those souls who dislike the Kelo decision but who do like the idea of original intent would find no comfort in the latter. The majority of men at the Philadelphia convention had a vision of public/private relations that many today would quickly label cronyism.

That does not mean they had no sense of limits. The word “corruption” is often used to indicate those private relations that damage the balance of government. As property owners themselves, they did not want legislatures taking their property. Yet in the original constitution there is no protection against federal takings at all. When a protection was inserted as part of the Bill of Rights, the Congress followed the model of the state bills of rights—drafted primarily by elite men like themselves--that balanced the right of the state to take property not with a definition of public good but with the right to compensation.

Further limitations began to emerge in the Jacksonian era as a reaction to the Transportation Revolution, but even then, I believe, most amendments focused on improving compensation or on limiting the right of the state to hand the power of eminent domain to a corporation. I am not sure when some states began to define the public good in these situations, but apparently, the Connecticut state constitution had no such provision, or at least none that was useful to the plaintiffs.

I may comment on some of the other cases in the next few days. In the meantime, go to the Slate dialogue mentioned above. It really is good

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Jason Kuznicki - 7/3/2005

I should own up that original public meaning isn't my idea. It's actually pretty common in libertarian circles, and yes, many scholars have discussed the difficulties of determining original public meaning when the original public would arguably have split on that meaning.

Oscar Chamberlain - 6/30/2005

Jason, first of all, I like your distinction between original intent and original public meaning. It avoids the trap of relying simply on the meaning as understood by a few people.
I would simply add that for any term of importance that is also used commonly, there are almost always multiple meanings. That does not make your suggestion wrong, simply more difficult.

Concerning the term "cronyism:" As I used it, and understood it, it covers a host of "backstage" behaviors, only some of which are illegal. If there had been clear evidence that illegal behaviors had led to the use of eminent domain in Kelo, I would have supported barring it on the grounds that due process had been denied.

But there is legal influence that functions behind the scenes. As someone who has a small role in his local government, I have glimpsed this from time to time. It is damned irritating at best and on some occasions has angered me greatly. Unfortunately these cases were--to my knowledge--examples of city officials listening to some people more than others because of personal connections or like-mindedness. In and of themselves these influences violated no laws. That seems to be what happened in the circumstances leading up to Kelo, and I don't think there's an easy way to stop it.

To return to your idea of looking for original public meaning: In the Early National period, many people in government--and many of their constitutents--would have assumed that listening to the successful and the moneyed with greater care made good sense. Many people disagreed, too, and would have considered such selectiveness deeply wrong. The latter opinion was particularly strong in the upcountry of the seaboard states and over the mountains in general. (I suspect, but do not know with certainty, that a map of regions that supported or opposed ratification of the Constitution would provide a very rough guide to where one vision of government or the other dominated.)

Now fifty years later I think a clear majority would have considered such cronyism as wrong and, in an ideal constitution, banned. That's one reason you begin seeing more restrictions on state governments in the Jacksonian Era.

But it's the federal constitution that is at the center of Kelo, and to my eyes, neither the original intent as understood by the public nor later precedents provide strong support for overturning a government's interpretation of the public good in such cases, if no other act of wrongdoing can be shown.

Jason Kuznicki - 6/30/2005

"in and of itself, cronyism is not unconstitutional."

Perhaps not by the letter--but how would we ever accomplish that?

Meanwhile, cronyism negates the idea of equal protection before the law, negates the idea that the government is an agent of the people--and negates the principle that we are a nation of laws, not men. Is it unconstitutional? Absolutely, because cronyism imposes an unwritten super-constitution among those who practice it, and against the interests of everyone else.

Perhaps the founders were not immune to elitism, and yes, we'd call that a bit of croyism. But that doesn't make it Constitutional.

I consider myself an originalist on most matters of constitutional interpretation, but I would not argue for using the original intent of the founders as our guide. Instead, I advocate using the original public meaning of the words they employed. These, I think, make it clear that cronyism is not permitted.

Jeremy Dupertuis Bangs - 6/30/2005

I guess I'll have to trot over to the Texas Capitol grounds to see if it really does say "Thou mayest covet and steal."

John H. Lederer - 6/29/2005

Just because it is bad policy doesn't mean it is constitutional.

Greg James Robinson - 6/29/2005

Very nicely stated, Oscar. I agree entirely about the distinction between unconstitutionality and bad policy.