The Long, Long Arm of the Kelo Plus Initiatives

Abstract

The assault on the scrutiny regime established by West Coast Hotel v. Parrish (1937) continues apace. To the amazed incomprehension, blustering, handwringing — and loss — of advocates of the scrutiny regime, state propositions have moved further to destroy the underlying doctrine of the Constitution that law rationally relates to a legitimate government purpose. The effect of these initiatives — extending the assault on government power beyond eminent domain in response to the Kelo case — is to substitute a new Constitutional doctrine: every law maintains an important fact. The initiatives — here we will discuss the representative California initiative, Proposition 90 — are not restricted to real property, and they are not restricted to fair market value. Thus, they open up the factual inquiry to evaluating and ranking facts in terms of each other, and reconciling them with each other on the basis of the concept of maintenance: this is the new Constitutional doctrine in action. We are being drawn irresistibly into a new Constitutional era, without its true significance ever being recognized, either by those who are bringing it into existence, or by those who oppose it coming into existence.