The Safeguard of Liberty and Property by Burnett Guy F.;

Author:Burnett, Guy F.;
Language: eng
Format: epub
Tags: undefined
Publisher: Lexington Books
Published: 2012-08-15T00:00:00+00:00

The Wrath of O’Connor

The majority opinion represented the most progressive of notions on the public use interpretation. Kennedy’s concurring opinion took the argument and tried to add a subtle, if not foreboding, air to the optimism and limitless character of what Kennedy saw in Steven’s reasoning. Kennedy ultimately stopped short of a complete vision of the new takings doctrine, and O’Connor’s dissenting opinion roundly criticized Kennedy for it. It also rejected the entire premise of the majority opinion in a very direct style and left little doubt that the dissenting justices foresaw calamities of a tyrannical proportion after the decision in Kelo.

O’Connor, who was joined by Chief Justice William Rehnquist, and Justice Antonin Scalia, called for a halt to the evolving public use interpretation. The opinion also called for a return to the original intent. O’Connor stated in the opinion, “When interpreting the Constitution, we begin with the unremarkable presumption that every word in the document has independent meaning, ‘that no word was unnecessarily used, or needlessly added.’”[14] The dissent included appeals to both precedent as well as the text of the Constitution. Justice Clarence Thomas’s dissent, filed separately, was much more focused on exploring the original intent of the Fifth Amendment, and much more consideration was given to the philosophical and historical underpinnings of property rights in general. That being said, O’Connor did have an eye for originalism in her opinion, but she focused on a critique the evolution of public use after her own opinion in Midkiff.

The opinion focused on several issues. The public use interpretation was the regnant concern in the opinion, which she addressed accordingly. Stemming from this was her discussion of the proper role of police powers, where she pointed out that the states are not allowed to simply define constitutional terms on their own. If this was allowed, she argued, anything expressed in the Constitution is mere “hortatory fluff.”[15] Her third problem was that of the NLDC’s delegated authority. She found it troubling that a private entity, which was isolated from the political process, was able to enact condemnations on its own. Such a problem bypassed the political (and therefore democratic) process and created a regime where property existed only at the whim of insulated administrative bodies.

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