Sunday, June 26

Welcome to the New Soviet Union

When freedom is lost, it is almost always by degrees, rather than all at once.

Last week--by a margin of one vote--the U.S. Supreme Court formally re-interpreted the Constitution yet again, confirming that it means whatever the court says it means on any given day. Under the court's official, written interpretation, the Constitution isn't worth the paper it's printed on.

Wild right-wing-nut charge, you say? If that's your reaction, you don't fully understand what the decision said, or what its implications for the future. Of course this isn't entirely your fault: Our mainstream newspapers have spun the story so that it seems quite innocuous. I'll include an example later. Meanwhile let me explain why I think this decision will have such dire effects, and then I'll welcome your carefully-reasoned arguments showing how I'm totally off base.

The case, as most of you know by now, is Kelo v. City of New London. The city used the eminent domain power to force homeowners to sell their homes to the it. The Fifth Amendment of the Constitution specifically allows governments to do this, but only if it's for a "public purpose". In this case, though, New London wasn't planning to build a highway or water-treatment plant--uses long deemed proper "public purposes." Rather, the city was taking the homes with the announced intention of conveying the land to a private developer for a new, high-dollar project.

Stripped of all the legal smoke, the "public purpose" claimed by New London was simply that the new development was projected to pay more property tax than the owners of the homes the city had seized.

Not surprisingly, several homeowners objected to being forced out of their homes for such an arrogant and unprecedented purpose. They argued that the city's reason for using eminent domain wasn't a legitimate "public purpose" under the Fifth Amendment. Unfortunately, the authors of the Constitution didn't specify the criteria for a "public purpose," but since the Constitution was written back when government was tiny and unobtrusive, it's reasonable to infer that the authors thought taking private property for such reasons would always remain quite rare.

Clearly, if the court were to give any level of government the right to force you out of your home for the purpose of selling your land to a private developer, it would open the floodgates for this same abuse any time a developer decided he wanted a certain piece of allegedly-underproducing property. There being no shortage of developers, the door would be open for thousands of such actions every year, with tens of thousands of government seizures.

But more to the point: In voting to uphold New London's novel argument, the court has explicitly stated that increasing tax revenue is now considered a "public purpose" under the Fifth Amendment's "takings clause"--which effectively renders the limited power implied in the phrase totally meaningless. From a legal standpoint, the decision amounts to a virtually unlimited broadening of government power.

It's the same principle as when the court decided that Congress had the right to prevent a farmer from choosing which (fully legal) crops to plant on his own land, under the novel theory that this (and by this reasoning, every act in the nation) would ultimately affect "interstate commerce", which the Constitution empowered Congress to regulate.

(In that particular case the farmer was barred from planting crops even for his family's personal consumption, with no intent to sell. The stretch, the brazen audacity, would be unbelievable to the Founders.)

In both cases the court junked the concept of "limited government" by stretching a phrase found in the Constitution beyond all reason, in order to support a result favored by the judges involved. I mean that literally: I challenge anyone to find a quote where a judge who voted to expand the government's power by stretching a phrase says anything like "Yeah, that really pained me as a jurist, went totally against my personal philosophy, but I felt the Constitution was clear that the decision had to be this way."

I won't hold my breath.


Okay, now for the example I promised earlier of why many of you don't feel this decision does any great damage. Most of you got your information about it from the MSM, and the MSM wants to put the best possible spin on this decision, for several reasons. First, all five votes for the city were from liberal judges, while all four against such a huge expansion of government power were by conservatives. Yet the decision will primarily impact the poor and minority homeowners, and will benefit wealthy developers. This is a total reversal of the standard PR tale that liberals protect the "little guy" and minorities, while conservatives support big business and the rich.

It's very hard to spin this enough to completely make it disappear. But the Washington Post [spit] is trying. Here's their version of the story:

Justices Affirm Property Seizures
5-4 Ruling Backs Forced Sales for Private Development
(by Charles Lane, June 24, 2005; A01)

The Supreme Court ruled yesterday that local governments may force property owners to sell out and make way for private economic development when officials decide it would benefit the public, even if the property is not blighted and the new project's success is not guaranteed.

The 5 to 4 ruling provided the *strong affirmation* [5-4 is a "strong affirmation"?] that state and local governments had sought for their increasing use of eminent domain for urban revitalization, especially in the Northeast, where many city centers have decayed and the suburban land supply is dwindling.

Opponents, including property-rights activists and advocates for elderly and low-income urban residents, argued that forcibly *shifting* land from one private owner to another, even with fair compensation, violates the Fifth Amendment to the Constitution, which prohibits the taking of property by government except for "public use."

Gotta' love that use of the word "shifting"--sounds *so* much more gentle than "taking" or "seizing"--though the latter two terms more accurately describe the process.
But Justice John Paul Stevens, writing for the majority, cited cases in which the court has interpreted "public use" to include not only such traditional projects as bridges or highways but also slum clearance and land redistribution. He concluded that a "public purpose" such as creating jobs in a depressed city can also satisfy the Fifth Amendment.

The court should not "second-guess" local governments, Stevens added, noting that "[p]romoting economic development is a traditional and long accepted function of government."
So Stevens' test is simply that the seizing must serve a "traditional and long accepted function of government"? Using this reasoning a city would have the power to take underdeveloped private property via a forced sale and re-sell it to a private party at a higher price, as long as it used the profit to, say, fund trash collection!
Stevens' opinion provoked a strongly worded dissent from Justice Sandra Day O'Connor, who wrote that the ruling favors the most powerful and influential in society and leaves small property owners little recourse. Now, she wrote, the "specter of condemnation hangs over all property. Nothing is to prevent the State from replacing any Motel 6 with a Ritz-Carlton, any home with a shopping mall, or any farm with a factory." [True.]

D.C. Mayor Anthony A. Williams, who serves as president of the National League of Cities, issued a statement praising the court for upholding "one of the most powerful tools city officials have to rejuvenate their neighborhoods."

In addition to its national repercussions, the court's decision removed a possible obstacle to the District's plans to build a baseball stadium along the Anacostia River waterfront and to redevelop the Skyland Shopping Center in Southeast -- a project Williams said could generate 300 jobs and $3.3 million in tax revenue.

The redevelopment program at issue in yesterday's case--the plan of the Connecticut city of New London to turn 90 acres of waterfront land into office buildings, upscale housing, a marina and other facilities near a $300 million research center being built by pharmaceuticals giant Pfizer--was also expected to generate hundreds of jobs and, city officials say, $680,000 in property tax revenue.

But owners of 15 homes on...the proposed site had refused to go. One of them, Susette Kelo, had extensively remodeled her home and wanted to stay for its view of the water. Another, Wilhelmina Dery, was born in her house in 1918 and has lived there her entire life.

The Connecticut Supreme Court upheld the city's plan, so the homeowners, represented by lawyers from the libertarian Institute for Justice, appealed the case to the U.S. Supreme Court.

Again note the use of euphemism: "upheld the city's plan" sounds so much nicer than "upheld the city's power to force owners to sell against their will."
According to the institute, the New London plan is typical of "eminent domain abuse," which has spawned more than 10,000 threatened or filed condemnations involving a transfer of property from one private party to another in 41 states between 1998 and 2002.

Scott Bullock, a lawyer for the institute, said that the only recourse for property owners facing condemnation under eminent domain would be to sue in state court based on the property rights provisions of each state's constitution.

Stevens was joined in the majority by Justices Anthony M. Kennedy, David H. Souter, Ruth Bader Ginsburg and Stephen G. Breyer. [Seems to me the list of concurring judges is usually found much higher in SC articles. Why so late on this one?]

Kennedy's vote was something of a surprise because he had expressed strong sympathy for property-rights claims in past cases. But in a brief concurring opinion he explained that the New London plan showed no sign of improper favoritism toward any one private developer. [And I'll bet the plan included all the required environmental statements, too. But all these points totally ignore the Constitutional issue.]

O'Connor was joined in her dissent by Chief Justice William H. Rehnquist and Justices Antonin Scalia and Clarence Thomas. They wrote that the majority had tilted in favor of those with "disproportionate influence and power in the political process, including large corporations and development firms."

And in a separate dissent, Thomas sounded a rare note of agreement with liberal groups such as the NAACP, which had sided with the property owners in the case. [Five liberal judges on the Supreme Court defeat an NAACP goal, and we don't read about this til the end of the article. Of course, the Post doesn't want blacks to realize that putting liberal judges on the Court produces these sorts of decisions.]

He protested that urban renewal has historically resulted in displacement of minorities, the elderly and the poor. [Spot on.]

"Regrettably, the predictable consequence of the Court's decision will be to exacerbate these effects," he wrote.


Everyone who pays attention knew this sort of paradigm shift was coming, but I think few of us expected it to be quite so brazen in re-writing the clear meaning of the limitation of the takings clause.

So it goes.

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