No sooner are we back on the job than Professor Schaff and I are crossing swords. I note that we do not disagree on the merits (or lack thereof) of the New London development program, and I think that Congress is right to take some steps to safeguard property rights in the wake of this decision.
We do disagree on the proper use of the word "overturn." He thinks it right to say that Congress has overturned a Court decision if an act of Congress has rendered the decision moot. I dissent. The Court has ruled that the Constitution does not provide certain protections for property rights. Congress can provide them on its own of course, but it can just as easily take them away at later date. And that's precisely why its safer to let Congress experiment.
Similarly with Professor Schaff's other example, Religious Freedom Restoration Act. This was a response to the Court's decision in Oregon v. Smith. The Court ruled, correctly in my opinion, that a person who wishes to ingest peyote for religious reasons has no more protection from controlled substance laws than someone who wishes to do the same in order to get real high man. Congress decided to try and create some special protections for religious exercise on its own. That's what legislatures are for.
Richard Epstein's argument against Kelo is very useful, but overwrought. Maybe Kelo was a bad decision, but was it really "shameful"? Epstein, like most conservative critics, think the Court has allowed the concept of public use to extend beyond all bounds. But does that mean that Epstein endorses some simple reading of the Constitution, such as ""public use" means something that is owned and/or operated by the public." Epstein shows why such a formulation won't do.
There are . . . good reasons why the public use language has long been extended to cover some cases of takings for private purposes with indirect public benefits. One recurrent problem of social coordination arises when one party is in a position to blockade the productive ventures of another. To take a real historical example, assume that the owner of a mine (who has no choice on where to dig) can get his ore to market only by ferrying it over scrub lands owned by another individual. That second landowner can demand a huge chunk of the mining profits for his trivial contribution to the overall venture. For over 100 years, the Supreme Court has allowed the state to condemn the obstructing property for the mine owner upon payment of just compensation, here measured by the trivial losses sustained by the obstructing landowner. The net gains from blocking the holdout are huge.
In other words, "public use" sometimes means "private use." The consequences of reading the concept in a narrower fashion would be devastating for the economy. The question then is whether you want the Court to legislate its own exceptions, depending on its current understanding of economics, social science, astrology, etc., or Congress. I say legislation is for legislatures, whenever possible.
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