Topic: Private Property and Property Rights.
Senator: Brownback
Date: SEPTEMBER 14, 2005
Contents
SPECTER: We now proceed with the final two senators on the opening 30- minute round. And I recognize Senator Brownback.
BROWNBACK: Thank you very much, Mr. Chairman.
And I welcome you. Good morning, Judge Roberts and Mrs. Roberts. Glad to see you here this morning.
You're only two away from the end of this round, and we'll see how much further it goes.
BROWNBACK: I hope you had a good night's sleep.
And I thought you had a great presentation yesterday.
I want to compliment you on the number of areas that you answered. My colleague from Texas went through the number of areas and commented about that yesterday and I was very impressed with the breadth, obviously, of your knowledge and your forthcomingness; how many of these areas you answered where prior nominees had not put answers forth.
And so I think you've revealed a great deal and yet not gone into those areas of active judicial action where there could be a lot of things coming forward.
I also want to compliment the chairman, Chairman Specter, who originates from my home state, and his stamina. He's been going through a lot lately, the chairman has, and yet you've pressed this committee so that many of us have difficulty keeping up with you.
And I want to compliment you on that stamina and the ability that you show. You always set a fast pace.
SPECTER: Well, Senator Brownback, being a Kansan yourself, you know where that stamina came from, because I'm a Kansan myself.
BROWNBACK: It's standing in the wind all day long; you just have to lean into it.
(LAUGHTER)
It makes you -- strengthens you quite a bit.
I want to go to a few areas that you haven't answered questions on yet; maybe surprise to some watching if there are any areas left but, actually, there are quite a few. And with your service on the court, you know on the bench you're going to get such a range of issues and topics that are going to come up.
It is noteworthy to me that a supermajority of committee members have asked you about privacy and leading up to questions on Roe, which I think only makes the point that this is an issue that should be left into the political system and not into the judicial system, where it is today.
That's something you'll have to resolve, as issues like partial- birth abortion come up to you.
But the very dominance of the question bespeaks of its interest within the political system and why it's best resolved within the political system and not the judicial one on a constitutional basis. But I'll get to that later.
I want to take you first to the takings clause issue. There was a recent case that came up that really shocked the system.
And you talked about shocks to the system when the judiciary acts. This is one that did it, in the Kelo v. New London case.
BROWNBACK: In perhaps no other area of the law is stability more important than in the area of private property and property rights.
Even before the existence of the United States, William Blackstone, that famous English legal authority, stated this; he stated, quote, "The law of the land postpones even public necessity to the sacred and inviolable rights of private property."
Mindful of the sentiment and the excesses of the king yet aware of the needs of a new and growing country, the framers of our Constitution established a strict limitation on the government's ability to take private property.
The takings clause of the Fifth Amendment of the Constitution provides that private property may not, quote, "be taken for public use without just compensation." We all know those famous words.
Traditionally, this has meant that the government had to pay fair value when it sought to confiscate a homeowner's property in order to build a road or other public good. But now the notion of public use has taken a different hue to it.
In this Kelo v. the City of New London case, the Supreme Court had decided whether a private economic development plan, which a city government believed would yield greater economic benefits, qualified as a public use. So you had private property taken by the state and given back to private individuals, but it was having a greater economic use -- and whether that was sufficient under the takings clause.
In the words of the court, this economic development plan, quote, "was projected" -- not resulted, but projected -- "to create in excess of a thousand jobs, increase taxes and other revenues."
On this basis, the court upheld the government confiscation as a public use and there was an uproar across the country. We thought that private property rights were established and set, and now it appears as if it's not; that the system is different. You can take private property, by the government's eminent domain ability, and give it back to a private individual.
Justice O'Connor, in her eloquent dissent, quotes this: "Nothing is to prevent the state now from replacing any Motel 6 with a Ritz- Carlton, any home with a shopping mall, or any farm with a factory."
It is remarkable how this issue has stirred, as I mentioned, great criticism. I'm pleased the chairman is going to hold a hearing on it this next week.
Judge Roberts, what is your understanding of the state of the takings clause jurisprudence now after Kelo? Isn't it now the case that it's much easier for one man's home to become another man's castle?
ROBERTS: Well, under the Kelo decision, which, as you explained, was interpreting the public use requirement in the Constitution, the majority -- and, of course, as you mentioned, it was a closely divided case -- the majority explained its reasoning by noting the difficulty in drawing the line.
Everybody would agree, as you suggest, to build a road or to build a railroad, to situate a military base if that's the only suitable place, that the power of eminent domain is appropriate in those instances. And I think people agree further that when you're talking about a hospital or something like that, that satisfies public use.
And I think the reason the court gave, really, in the majority opinion was that it's kind of hard to draw the line.
Justice O'Connor's dissent didn't think it was that hard. She focused on the question of whether it was going to be a use open to the public as a road, a hospital, used for the public like in a military base, or private. And she would have drawn the line there and said even public benefits that derive from different private uses don't justify that aspect of it.
There was a caveat in the Kelo majority. They said they were only deciding this in the context of an urban redevelopment plan. They reserved the question if it's just taking one parcel and giving it to somebody else, not part of a broader plan. That question was still open.
And as you said, there's been a lot of reaction to it. I understand some states have even legislated restricting their power.
BROWNBACK: And we are considering it here in the Congress.
ROBERTS: And I think that's a very appropriate approach to consider. In other words, the court was not saying, "You have to have this power, you have to exercise this power."
What the court was saying is, "There is this power," and then it's up to the legislature to determine whether it wants that to be available, whether it wants it to be available in limited circumstances or whether it wants to go back to an understanding as reflected in the dissent that this is not an appropriate public use.
ROBERTS: That leaves the ball in the court of the legislature.
And I think it's reflective of what is often the case -- and that people sometimes lose sight of -- that this body and legislative bodies in the states are protectors of the people's rights as well.
It's not simply a question of legislating to address particular needs, but you, obviously, have to also be cognizant of the people's rights and you can protect them in situations where the court has determined, as it did 5-4 in Kelo, that they are not going to draw that line.
You still have the authority to draw.
BROWNBACK: I understand the authority we maintain. What I'm curious about is your view is: Does that right exist? I would not think Blackstone would agree that that right exists for the public to take private property for private use.
ROBERTS: Well, in the first year in law school, we all read the decision in Calder against Bull, which has this famous statement that the government may not take the property of A and give it to B. And that certainly was quoted in the dissent -- in Justice O'Connor's dissent.
The Kelo majority, though, said if the legislature wants to exercise that power, basically that the court's not going to second- guess the judgment that this is a public use.
And I do think that imposes a heavy responsibility on the legislature to determine what they're doing and whether it is a public use or if it's simply transferring from one private party to the next.
BROWNBACK: I take it you're not going to respond whether or not that right exists under the Constitution?
ROBERTS: Well, the Kelo decision, obviously, was just decided last year and I don't think I should comment on whether it was correct or not. It stands as a precedent of the court.
It did leave open the question of whether it applied in a situation that was not a broader redevelopment plan. And if the issue does come back before the court, I need to be able to address it without having previously commented on it.
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