The Tea Party Movement and Popular Constitutionalism

Ilya Somin[*]

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Introduction

The rise of the Tea Party movement followed a period during which many academic students of constitutional law focused on “popular constitutionalism”: the involvement of public opinion and popular movements in influencing constitutional interpretation.[1]  Many of these scholars argue that popular constitutional movements have a beneficial impact on constitutional law,[2] and some even contend that popular constitutionalism should supplant judicial review entirely.[3]  At the very least, the last generation of constitutional scholarship has established that public opinion influences and significantly constrains judicial interpretation of the Constitution.[4]

A Floor, Not a Ceiling: Federalism and Remedies for Violations of Constitutional Rights in Danforth v. Minnesota

By Ilya Somin[*]

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Few doubt that states can provide greater protection for individual rights under state constitutions than is available under the Supreme Court’s interpretation of the Federal Constitution.  More difficult issues arise, however, when state courts seek to provide greater protection than the Court requires for federal constitutional rights.  Can state courts impose remedies for violations of federal constitutional rights that are more generous than those required by the Federal Supreme Court? That is the issue raised by the Court’s recent decision in Danforth v. Minnesota.[1]  In a 7-2 decision joined by an unusual coalition of liberal and conservative justices, the Court decided that state courts could indeed provide victims of constitutional rights violations broader remedies than those mandated by federal Supreme Court decisions.  I contend that this outcome is correct, despite the seeming incongruity of allowing state courts to deviate from the Supreme Court’s interpretation of the Federal Constitution.  The Supreme Court should establish a floor for remedies below which states cannot fall. But there is no reason for it to also mandate a ceiling.

Part I briefly describes the facts and background to Danforth.  In Part II, I provide a doctrinal justification for the Supreme Court’s decision.  It makes sense to allow state courts to provide more generous remedies than those mandated by the federal courts in cases where restrictions on the scope of remedies are not imposed by the Constitution itself, but are instead based on policy grounds.  State courts can legitimately conclude that these policy grounds are absent or outweighed by other considerations within their state systems, even if they are compelling justifications for restricting the scope of remedies available in federal courts.  State courts are in a better position to weigh the relevant tradeoffs in a state legal system than federal courts are.

Part III explains the potential policy advantages of allowing interstate diversity in remedies, most importantly inter-jurisdictional competition and an increased ability to provide for diverse citizen preferences and local conditions across different parts of the country.  The optimal remedy for a constitutional rights violation in New York may well be different from the optimal remedy for one that occurs in Mississippi.

Is Post-Kelo Reform Bad for the Poor?

By Ilya Somin[*]

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[Editor's Note:  This piece is a response to an earlier Colloquy piece by David A. Dana, The Law and Expressive Meaning of Condemning the Poor After Kelo, 101 Nw. U. L. Rev. 365 (2007); 101 Nw. U. L. Rev. Colloquy 5 (2006), http://www.law.northwestern.edu/lawreview/colloquy/2006/2/ (link).]          

Introduction

In a recent article in the Northwestern University Law Review Colloquy,[1] Professor David Dana argues that most post-Kelo reform efforts are seriously flawed because they tend to forbid the condemnation of the property of the wealthy and the middle class for "economic development," but allow the condemnation of land on which poor people live under the guise of alleviating "blight."   This, he claims, results in reform laws that "privilege[] the stability of middle-class households relative to the stability of poor households" and "express[] the view that the interests and needs of poor households are relatively unimportant."[2]

I agree with Professor Dana that the problem of blight condemnations and its impact on the poor deserves much greater attention, and that post-Kelo reform initiatives should do more to address these concerns.   However, I disagree with his argument that post-Kelo reform efforts have systematically treated land where the poor tend to live worse than that of middle and upper class homeowners.   As of this time (March 2007), most of the states that have enacted post-Kelo reform laws have either banned both blight and economic development takings (five states, plus Utah, which enacted its reform law prior to Kelo), or defined "blight" so broadly that virtually any property can be declared "blighted" and taken (sixteen states).   Several other states have enacted reforms that provide no real protection to any property owners because of other types of shortcomings.   Only nine states are actually guilty of the sin condemned by Professor Dana of allowing only the condemnation of "blighted" areas narrowly defined.

To the extent that some states have indeed banned "economic development" condemnations in affluent neighborhoods, while permitting "blight" condemnations to go on in poor ones, I agree that this is a lamentable state of affairs.   However, it may still be a better result than simply subjecting all property to the risk of economic development takings.   A law that protects the property rights of most but not all of the population is preferable to one that protects no one.   Such a law might also benefit many poor people who live in nonblighted areas and are potentially vulnerable to economic development takings. Survey data suggests that the poor themselves overwhelmingly oppose economic development condemnations.

Furthermore, the exclusion of blighted property from some states' bans on "economic development" condemnations in some states is not necessarily explained by indifference to or contempt for the interests of the poor.   There are perfectly noninvidious (though in my view flawed) reasons for believing that condemnation is sometimes necessary to eliminate blight.   There are few or no reasons, however, to use condemnation to promote economic development through the transfer of property to private owners.