Topic: Law and Civil Liberties

A Million Homes Taken Since Kelo

It has been just over a decade since the Supreme Court decided in Kelo v. New London that local governments can take private property by eminent domain under a very broad reading of “public use”.  Cato held an event earlier this year to examine the legal impact of Kelo, featuring remarks from George Mason Law Professor Ilya Somin based upon his recent book, The Grasping Hand.  Not only has Kelo spawned widespread public backlash, but its also given birth to renewed interest by legal scholars.  As an economist, I am a little more interested in the direct impact on families.

Unfortunately, I have had no luck finding a database of all U.S. takings.  The American Housing Survey (AHS), conducted by the Census Bureau every two years, does, however, offer some estimates.  For survey respondents who moved within the previous year, the AHS asks respondents the “main reason” for leaving their previous unit.  One option offered is “government displacement”. For the survey years since Kelo, the average has been 109,000 households who state that government action displaced them from their previous home.  If that average holds for non-survey years, then a good estimate is that just over a million households have been displaced by government action since Kelo

“John Doe” Investigations

The Wall Street Journal has an editorial today on the prosecutorial abuses surrounding “John Doe” investigations.  By way of background, so-called “John Doe” laws allow prosecutors to bypass the regular search warrant application process and use special subpoenas to demand all sorts of information from various institutions, such as internet service providers.  If the prosecutor demands your email records, you may never know it has even happened.

Excerpt from the editorial:

New evidence shows that John Doe investigators were trawling the files they collected via subpoenas and search warrants for information on national conservatives.

The documents are under seal in a state court case, Eric O’Keefe and Wisconsin Club for Growth v. Wisconsin Government Accountability Board (GAB), but two sources have read them to us. The lawsuit is a complaint against the GAB, the state agency that worked with Milwaukee prosecutors on the John Doe that used campaign-finance laws to trample the First Amendment.

We’ve tried to expose this illegal harassment since the autumn of 2013, when early morning home raids and subpoenas hit conservative groups across the state. From that investigation and a previous John Doe whose documents were transferred into the new investigation, prosecutors and the GAB collected millions of documents, including personal files, emails and bank statements.

Eric O’Keefe recently shared his chilling experiences in Wisconsin in a Cato Daily Podcast.

There is no place for “John Doe” investigations in America.  Period.  “Reforming” John Doe falls short.

Chicago’s Sheriff Crusades against Online Ads

Prior restraints—legal prohibitions on disseminating information before publication—are an odious burden on the freedom of expression and come with a “heavy presumption” against their constitutionality. Indeed, they are so disfavored in the law as to be virtually impossible to obtain outside of wartime.

Informal prior restraints—government pressure without formal sanction—are even more unconstitutional than formal ones, as the Supreme Court noted in Bantam Books v. Sullivan (1963). In that case, the Court forbade the Rhode Island Commission to Encourage Morality in Youth from sending threatening letters to book distributors in an attempt to nudge the distributors into not carrying “obscene” material.

But that strong precedent didn’t stop Cook County (Chicago) Sheriff Thomas Dart and his crusade against Backpage.com, an online commerce site similar to Craigslist. Rather than trying to get a formal prior restraint from a court, Dart used his office, letterhead, and title to send letters threatening investigation to Visa and MasterCard (Backpage’s primary financial transaction processors) to pressure them into dropping Backpage as a customer. Dart justifies his actions by asserting that there have been “years of growth in the online sex trade,” “driving demand even higher and increasing the enslavement of prostituted individuals, including children” due to commercial sites like Backpage.com hosting “adult services” classified ads.

It worked: when Backpage sued to stop Sheriff Dart, the district court denied a preliminary injunction, accepting Dart’s claims and ruling that the public interest weighed against the website. Backpage.com appealed to the U.S. Court of Appeals for the Seventh Circuit.

Further on the Ninth Amendment

In a private response to my post earlier this afternoon, Ed Whelan has brought to my attention two errors in this paragraph:

The addition of the Bill of Rights, in short, did not reduce the number of rights we enjoy, limiting them to those fairly clearly “in” that document. It simply enumerated some of the rights in that vast sea of previously unenumerated rights—all of which, enumerated and unenumerated alike, were later incorporated against the states through the Fourteenth Amendment, properly read.

He alerts me that in his post last Thursday, to which I responded on Friday, he had written:

These proponents of originalism and judicial restraint aim, in other words, to have judges enforce the rights, and limits on power, that the Constitution, fairly construed, sets forth, and to prevent judges from inventing rights and powers that are not in the Constitution. (emphasis added)

Fair enough. By placing the emphasis on judges limiting power (which they rarely do since the New Deal constitutional revolution), Ed doesn’t have to worry about whether the Constitution “sets forth” unenumerated rights pursuant to the Ninth Amendment, and so I stand corrected—at least in the case of challenges to federal power.

But of course most unenumerated rights questions arise in challenges to state power, which brings me to a misstatement in that passage of mine above. I wrote that all of our rights, “enumerated and unenumerated alike, were later incorporated against the states through the Fourteenth Amendment, properly read,” and that of course is not correct. For just as we give up some of our rights when we constitute ourselves nationally, so too we give up others when we constitute ourselves at the state level. The usual state cases, however, (Griswold, Troxel, etc.) involve rights that we do not give up—all of which, to fully explain, requires a more detailed theory of both state police power and the rights retained pursuant to the Ninth Amendment. I thank Ed for bringing that to my attention.

While I’ve got your attention, however, I might as well take this opportunity to call into question a contention that many conservatives, including Ed, are fond of making, namely, that the Ninth Amendment should be read as a rule of construction. As he writes in this morning’s post, “defenders of the original Constitution argued against a bill of rights on the ground that such a listing might imply that the national government’s powers were far greater than they were.” True, that is one reason they opposed a bill of rights. But he continues:

When the Bill of Rights was added, the Ninth Amendment was crafted to guard against this implication. The text of the Ninth Amendment (“The enumeration in the Constitution of certain rights shall not be construed to deny or disparage others retained by the people”), which sets forth a mere rule of construction (“shall not be construed”), comports perfectly with this purpose.

True again, the Ninth Amendment does guard against that implication. But that does not mean that the amendment “sets forth a mere rule of construction.” For the object of “construed” is “to deny or disparage other[] [rights] retained by the people.” And that brings us to a different rule of construction: expressio unius est exclusio alterius. An additional fear opponents of a bill of rights had was that the enumeration of some rights in such a bill would be construed as excluding other, unenumerated rights from protection, and that too is why, if a bill of rights were to be added, the Ninth Amendment would be needed to ensure that both enumerated and unenumerated rights were protected. True, the question comes up most often in challenges to state laws, but with the demise of the doctrine of enumerated powers it comes up in federal cases as well.

George Will on Criminal Justice Reform

George Will’s latest column draws attention to Judge Alex Kozinski’s critique of the American criminal justice system.  Here is an excerpt:

The Republican Party, like Sisyphus, is again putting its shoulder to a boulder, hoping to make modest but significant changes in the Electoral College arithmetic by winning perhaps 12 percent of the African American vote. To this end, Republicans need to hone a rhetoric of skepticism about, and an agenda for reform of, the criminal justice system. They can draw on the thinking of a federal appellate judge nominated by Ronald Reagan.

In an article that has stirred considerable discussion since it appeared this past summer in the Georgetown Law Journal, Alex Kozinski of the U.S. Court of Appeals for the 9th Circuit provides facts and judgments that should disturb everyone, but especially African Americans, whose encounters with the criminal justice system are dismayingly frequent and frequently dismaying….

Prosecutions are preceded by police investigations. Police, says Kozinski, have “vast discretion” about, among many other things, which leads to pursue and witnesses to interview. They also have opportunities “to manufacture or destroy evidence, influence witnesses, extract confessions” and otherwise “stack the deck against people they think should be convicted.” A woman spent 23 years on death row because of an oral confession she supposedly made during a 20-minute interrogation by a detective who Kozinski says was later shown “to be a serial liar.” The conviction of a man who spent 39 years in prison was based “entirely” on the eyewitness testimony of a 12-year-old who saw the crime from a distance, failed to identify the man in a lineup and was fed information by the police.

Read the whole thing.

Cato will be hosting a debate between Judge Kozinski and Judge J. Harvey Wilkinson next month.  Related post here.

The Unconfusing Ninth Amendment

Over at his “Bench Memos” blog at NRO, Ed Whelan has taken exception to my Cato@Liberty post of Friday last wherein I called into question his critique of George Will’s column of Thursday last, which had defended Randy Barnett’s recent speech at Berkeley, drawn from his 2008 B. Kenneth Simon Lecture at Cato, arguing that the Constitution is libertarian and that judges should actively enforce its protection not only of enumerated but of unenumerated rights as well, pursuant to the Ninth Amendment. Got that? Now let’s get to the substance of the matter.

Whelan’s latest, entitled “More Ninth Amendment Confusion,” is mercifully brief. I had argued, among other things, that conservatives’ long-standing (and often understandable) fear of what they see as “judicial activism” has led them to read the Ninth Amendment (“The enumeration in the Constitution of certain rights shall not be construed to deny or disparage others retained by the people.”) as a mere rule of construction, not as an affirmation of unenumerated rights. Thus they are wary of judges finding rights that are not fairly clearly “in” the Constitution. (There is some wiggle room there: thus, for example, most would allow freedom of speech to entail the right to burn the flag.)

But a core problem with that view, I wrote, is that it implies that “prior to the ratification of the Bill of Rights, two years after the ratification of the Constitution, we enjoyed almost no rights against congressional majorities—save for those few mentioned in the original document.” Whelan responds:

The “rights against congressional majorities” that existed before the Bill of Rights was ratified arose from the Constitution’s limitations on Congress’s powers. In Madison’s words: “If a line can be drawn between the powers granted and the rights retained, it would seem to be the same thing, whether the latter be secured by declaring that they shall not be abridged, or that the former shall not be extended.”

Just so! Where there is no power—by virtue of the doctrine of enumerated powers—there is a right. In other words, prior to the ratification of the Bill of Rights we had a vast sea of rights within which there were islands of federal power. But as I noted in an exchange with Randy over the weekend, way back in 1991 I had written:

Indeed, if the Framers intended unenumerated rights to be protected without a bill of rights, how can we imagine that those rights were meant to be any less secure with a bill of rights.

The addition of the Bill of Rights, in short, did not reduce the number of rights we enjoy, limiting them to those fairly clearly “in” that document. It simply enumerated some of the rights in that vast sea of previously unenumerated rights—all of which, enumerated and unenumerated alike, were later incorporated against the states through the Fourteenth Amendment, properly read.

Whether judges discover those unenumerated rights expressly—as when they discover a right to sell and use contraceptives (Griswold v. Connecticut) or a right of fit parents to control access to their children (Troxel v. Granville) or many other such rights—or do so only implicitly by finding no power is not the issue since either method comes to the same thing—as Madison said. The Ninth Amendment simply affirms that we “retain” all the unenumerated rights we held prior to the ratification of the Bill of Rights. In expressly stating that, it can be said to be a font of rights, even though the actual font is the theory of natural rights, which rights we retained when we reconstituted ourselves in 1787.

ADDENDUM: Ed Whelan has kindly brought to my attention a couple of mistakes in this post, which I correct, plus more, in this new post.

What Should Presidential Candidates Say about Judges?

As predictable as the sun’s rising in the East is NRO’s Ed Whelan’s rush to the barricades when George Will (or many others, for that matter) is found defending a judiciary “actively” engaged in defending a right not expressly found in the Constitution.

The occasion this time was Will’s piece in yesterday’s Washington Post, “The false promise of ‘judicial restraint’ in America.” In it, Will notes that, given the advanced age of several Supreme Court justices, a supremely important presidential issue is being generally neglected in the presidential debates, namely, the criteria by which a candidate would select judicial nominees. And that is “because Democrats have nothing interesting to say about it and Republicans differ among themselves about it.” Drawing on a speech that Randy Barnett recently gave at UC Berkeley, Will defends what we at Cato have long defended, namely, a judiciary actively engaged in reading and applying the Constitution as written. And that includes accurately reading the Ninth Amendment: “The enumeration in the Constitution of certain rights shall not be construed to deny or disparage others retained by the people”