Thursday, June 30, 2005

Supreme Court Denies Cert in Prayer Case

From The Herald:

The [South Carolina] town of Great Falls lost its four-year legal battle to keep the name "Jesus Christ" in its council meeting prayers Tuesday.

The U.S. Supreme Court declined to hear the Chester County town's appeal of a [Fourth Circuit] decision that it improperly favored one faith with its prayers.

Tuesday, June 28, 2005

Final Thoughts on Kelo

Please see my op-ed at the Independent Institute for my final thoughts on the Kelo decision.

Monday, June 27, 2005

Supremes Issue Opinion on Ten Commandments

According to CNN:

Sending dual signals in ruling on this issue for the first time in a quarter-century, the high court said that displays of the Ten Commandments -- like in their own courtroom frieze -- are not inherently unconstitutional. But each exhibit demands scrutiny to determine whether it goes too far in amounting to a governmental promotion of religion, the court said in a case involving Kentucky courthouse exhibits.

In effect, the court said it was taking the position that issues of Ten Commandments displays in courthouses should be resolved on a case-by-case basis.

In that 5-4 ruling and another decision involving the positioning of a 6-foot granite monument of the Ten Commandments on the grounds of the Texas Capitol, Justice Sandra Day O'Connor was the swing vote. The second ruling, likewise, was by a 5-4 margin.

The Kentucky Opinion can be found here. (Display Unconstitutional)

The Texas Opinion can be found here. (Display Constitutional)

Thoughts on Kelo

Sorry for the late post on this case, but I was out of town in depositions when Kelo was released. I was not surprised reading the opinion and most of us have come to expect such rulings from the High Court. There was a time, of course, that property rights were accorded more respect.

In the years after ratification of the Bill of Rights, Supreme Court justices viewed the preservation of property as a primary object of American law. Justice William Paterson in Vanhorne's Lessee v. Dorrance (1795), averred that "the right of acquiring and possessing private property, and having it protected, is one of the natural, inherent and inalienable rights of man." Justice Samuel Chase declared in Calder v. Bull (1798) that an act taking property from A and giving it to B "is against all reason and justice" and is thus prohibited by the Constitution.

State judges agreed with their federal colleagues. For example, in Bowman v. Middleton (1792), the South Carolina supreme court held that legislative acts transferring property from one person to another are "void" because they violate common right and Magna Charta.

But now, if an owner does not make maximum productive use of his property, government is empowered to transfer the property to another person. Supposedly this is a public purpose. Of course, the phrase "public purpose" does not appear in the Fifth Amendment but the words "public use" do. As Justice Clarence Thomas noted in dissent, the text of the Amendment permits the taking of property "only if the public has a right to employ it" (e.g., public roads, public parks, etcetera). Taking Ms. Dery's home so private parties can erect an office building or hotel is not a public use.

Aside from violating the fundamental law of the Constitution, Kelo subverts the free market's system of voluntary exchange. Prior to Kelo, if Corporation X, for example, desired to purchase a parcel of land to build a hotel, it had to make a satisfactory offer to the owner. If the parties agreed on a price, a voluntary transaction resulted in which both parties felt they benefited. Under Kelo, if the property owner does not agree to Corporation X's terms, then Corporation X has the option of persuading the government to exercise the power of eminent domain. Corporation X need only allege that its proposed hotel will be a more productive use of the property.

Some of you will accuse me of being a "fair weather federalist." Shouldn't state governments have broad authority in these issues? As an academic matter, I believe that incorporation of the Bill of Rights is judicial hocus pocus. As Justice Marshall noted in Barron v. Baltimore, the Bill of Rights does not apply to the states. Thus, in my preferred world of constitutional analysis, Kelo would be a state law matter settled in state courts or state legislatures.

As a matter of reality, the Fifth Amendment applies to both the national and state governments. The Supreme Court's deletion of "public use" from the Amendment empowers both sets of sovereigns. Most agree that the national government may excrcise the power of eminent domain via the Necessary and Proper Clause if it is incidental to an enumerated power. For example, incident to its power to raise armies, Congress may exercise the power of eminent domain so the soldiers will have land for a base. Hence, the Court's Kelo decision increases the powers of both the state and federal governments--it is not limited to state takings. All good federalists should oppose this judicial augmentation of Congress's powers.

Friday, June 24, 2005

Kelo decision holds that property may be taken from A and given to B as a "public use"

The Supreme Court yesterday decided Kelo v. New London. In a 5-4 ruling, the court found against Susette Kelo and other New London, Conn., homeowners who had protested their city government's attempt to take their homes and turn their property over to private commercial developers. At base, the Supreme Court majority endorsed the government's position that public officials can justify takings of private property for the purpose of increasing government tax revenues.

There is goodiscussionon of Kelo over at SCOTUS Blog.

Wednesday, June 15, 2005

Order finding improper service is immediately appealable

In a case (Wetzel v. Woodside) decided on June 6, the State Supreme Court held as follows:

Here, however, the effect of granting the motion and holding that Steele has not been properly served is equivalent to granting a motion to dismiss under Rule 12(b)(5), SCRCP, since it ends the action as to Steele. Therefore, it is immediately appealable.

In other words, findings of improper service are immediately appealable so long as the finding ends the action as to the party in question.

Tuesday, June 14, 2005

Raich and the Commerce Clause

Yes, I know I am behind the curve here. But those nice vacations cause us to miss all sorts of interesting debates in the legal world. But, though late, I wanted to give my two cents on why the activities of Raich and Monson are not interstate commerce and cannot be regulated by Congress. The Court's opinion is not worth the paper its written on.

The Commerce Clause, in pertinent part, provides that Congress has the authority "[t]o regulate commerce with foreign nations, and among the several States, and with the Indian Tribes." At the time of the Framing, commerce was understood as "[i]ntercourse, exchange of one thing for another, interchange of anything; trade; traffick." (See Samuel Johnson's Dictionary of the English Language (3d ed. 1765)). It was not a synonym for "economic activity" or agriculture.

With inclusion of the commerce power in the Constitution, the Framers did not contemplate restrictions on cannabis or any other home-grown crop. Rather, the purpose behind the regulation of interstate commerce was creation of a free-trade zone within the United States. Alexander Hamilton predicted in Federalist No. 11 that an "unrestrained intercourse between the States themselves will advance the trade of each[] by an interchange of their respective productions." Picking up on the theme in Federalist No. 42, James Madison noted that the main purpose of the Commerce Clause "was the relief of the States which import and export through other States, from improper contributions levied on them by the latter." A union without internal trade barriers, the Framers reasoned, would permit the states to take advantage of division of labor and relieve tensions .

In response to Anti-Federalist fears that the Commerce Clause would permit the federal government to interfere with local, intrastate matters, Hamilton specifically noted in Federalist No. 17 that the Clause would have no effect on "the administration of private justice . . . , the supervision of agriculture and of other concerns of a similar nature." The cultivation of six cannabis plants for personal medicinal use would thus seem to be beyond the reach of Congress.

Leaving the world of original intent, a pure textualist approach yields the same result. As a textual matter, "agriculture" or "economic activity" cannot be read into "commerce." As Richard Epstein has observed, logic dictates that "commerce" means the same thing in relation to the several states, foreign nations, and Indians. The Clause would make no sense if we substituted the word "agriculture" for "commerce": Congress shall have the power "[t]o regulate agriculture with foreign nations, and among the several States, and with the Indian Tribes." Obviously, Congress cannot regulate the crops grown in foreign countries or in Indian territory. It naturally follows that Congress cannot regulate the agriculture in the several states either. But Congress can regulate the interstate traffic in agricultural commodities or the importation of such commodities from foreign countries. This would be consistent with the Dr. Johnson's definition of commerce as intercourse and Madison's and Hamilton's emphasis on goods crossing state borders.

The understanding of commerce as trade is also evident by another mention of commerce in Article I. Under Section Nine, "[n]o Preference shall be given by any Regulation of Commerce or Revenue to Ports of one State over those of another." This provision prohibits Congress from favoring, for example, the port of Boston over the port of Charleston. Regulations may not make one port more attractive than another. The mention of "commerce" in connection with ports indicates that the Framers had in mind traffic of goods. It would make no sense to substitute agriculture for commerce: "No Preference shall be given by any Regulation of Agriculture or Revenue to the Ports of one State over those of another."

Early Supreme Court precedent supported such a limited definition of commerce. For example, in Gibbons v. Ogden (the famous steamboat case), Chief Justice John Marshall denied that Congress could regulate "that commerce . . . which is completely internal" to a state. Using state inspection laws as an example, Marshall observed that the object of such laws "is to improve the quality of articles produced by the labour of a country; to fit them for exportation or, may be, for domestic use. They act upon a subject before it becomes an article of foreign commerce, or of commerce among the States, and prepare it for that purpose." To Marshall, events occurring before goods were shipped across state lines were not commerce subject to congressional regulation. (Even the nationalist Marshall could not conceive of Wickard and the far reaching powers given to Congress).

Because the cannabis at issue is grown using only soil, water, nutrients, tools, and supplies made or originating in a single state, never crosses state lines, and never is sold in the stream of commerce--it is not a subject of commerce that may be regulated. It is local agriculture, which Hamilton promised us is not subject to congressional regulation.

But what about the NP Clause?

During the ratification debates, the Anti-Federalists were much afraid of the NP Clause. Centinel No. 5 put the matter thusly: "By virtue of this clause, they may controul and abrogate any and every of the laws of the state governments, on the allegations that they interfere with the execution of any of their powers." Friends of the Constitution responded that these fears were unfounded. According to Hamilton, the NP clause was not even necessary: "that the constitutional operation of the intended government would be precisely the same even if these clauses were entirely obliterated." (Federalist No. 33). If there is any danger, Hamilton continued, "it must be sought for in the specific powers, upon which the general declaration is predicated." Logically, if an end is not connected with a specific power, the government's power cannot be enlarged by the NP Clause.

Madison provides even better guidance: "Whatever meaning this clause may have, none can be admitted that would give an unlimited discretion to Congress. Its meaning must, according to the natural and obvious force of the terms, and the context, be limited to the means necessary to the end, and incident to the nature of the specified power." (emphasis added).

What is the nature of the enumerated power at issue: the regulation of commerce. What are the actions of Raich and Monson: agricultural and purely intrastate. Hence, the commerce power through the NP clause cannot extend to the medicinal use of pot at issue. Otherwise, we adopt the Anti-Federalist interpretation of the clause that our Friends of the Constitution assured us could not be correct.