Hoystory

When you say someone has a “mixed record,” what exactly do you mean? They’ve done some bad, some good? They’ve had some failures, some successes? Either of those definitions, I can understand, but Sunday’s Los Angeles Times, in the liberal spirit of kicking someone when they’re down and dying, runs an editorial in Sunday’s paper on Chief Justice William Rehnquist’s “mixed legacy.”

The term was plucked from the body of the editorial, but it appears the use of that term is a courtesy; by the Times estimation, Rhenquist’s record is only mixed in the sense that Rehnquist is a bad, bad man and he hasn’t always gotten his way.

There was one criticism of Rehnquist that I thought was odd, to say the least.

The stopwatch efficiency that has earned Rehnquist high marks as the court’s manager is also evident in his often-sparse opinions. Here it has not served him or the court as well. Instead of articulating principles that can guide judges and lawmakers, Rehnquist has often focused on the facts at hand. Your guess is as good as a constitutional scholar’s about how the court will rule on any given affirmative-action program.

The Court’s most recent affirmative-action decision was on a pair of cases out of Michigan. The Court upheld one affirmative-action program, and struck down another. This is somehow Rhenquist’s fault? Rhenquist voted to strike both of them down, as did Scalia and Thomas. If constitutional scholars can’t figure out how the Court is going to rule on any given decision, maybe it’s because the Court majority — of which Rhenquist is not a part — is continually pulling rights out of thin air, European Union law or their rear ends.

A case in point: the Supreme Court last week heard arguments in an eminent domain case out of Connecticut. New London wants to condemn a half-dozen houses that it couldn’t persuade the owners to sell in a run-down area of the city in order to give it to a private developer who would build something (no one knows exactly what) that would help the city get more tax revenue. What’s at issue is something known as the “takings clause.” (“Nor shall private property be taken for public use, without just compensation.”) Over at the Volokh Conspiracy, Orin Kerr looked at the clause and came up with the following, scary, analysis:

The text of the clause says that if private property is taken for public use, then just compensation must be paid. The Constitutional text doesn’t address takings for private use at all. Not only would such a taking seem to be allowed by default, but the Constitutional text doesn’t even seem to require the government to pay just compensation for it. The text doesn’t say, “Private property shall not be taken for private use, nor shall private property be taken for public use without just compensation.” It only says “Nor shall private property be taken for public use, without just compensation.” Obviously there are good policy reasons why we might not want the Court to read the text this way, and there are also reasons why someone might or might not be a textualist. Still, if you’re a textualist it seems that you’re kinda stuck with that reading.

What’s really scary, as a non-lawyer commenter (Stephen Rider) pointed out, is that Kerr seems to have forgotten all about the Tenth Amendment.

We also need to widen that quote from the 5th amendment… Here is (with edit) a more complete sentence: “No person shall… be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use without just compensation.”

Taken in tandem with the statement (Amendment 10) that powers not enumerated in the Constitution are not available to the government, (in theory, anyway…), this sentence is actually not a prohibition, but a specific enumeration of such a power — a statement that the government CAN, with “just compensation” take private property for public use. The silence with regard to taking for private use leaves that a non-enumerated power, and thus prohibited.

I’m not a lawyer; I can, however, read.

Exactly. The court got into trouble when it started finding “rights” in the penumbras of the Constitution instead of the text. The court started making laws, instead of the legislature, and the legislature was just fine with them doing it (yes, they squawk a lot, but they don’t do anything about it).

The Times pins this confusion on Rehnquist, when he is probably among the least responsible for it.

The editiorial also contains an error, one common on the pro-abortion left, but an error nonetheless.

Both sides believe that important precedents, Roe among them, now hang on one vote.

Only three justices have indicated that they would be willing to overturn Roe v. Wade — Antonin Scalia, Clarence Thomas and Rehnquist — for the math-challenged, that means that it would require two new votes (three if Rehnquist retires) to overturn Roe. I’d take it up with the Times ombudsman, but I got no response from the Times opinion department the last time I sent one off, why would this be any different?