A Very Bad Decision

Well ladies and gentleman, as of last Thursday, the US government can now take your house and give it to Walmart.

What apparently happened was this (taken from this article in the Washington Post). The local government of New London, Connecticut seized about 90 acres of waterfront property next to a giant resarch facility being built by Pfizer. As per the Constitution (5th Amendment), the government has the right to seize land for "public use" such as roads or schools, as long as it provides compensation. The Connecticut government then handed the land over to a private business interest who wants to use the land to build offices, upscale housing, a marina, and some "other facilities" that will support the growth caused by the new research center. Several people owned homes on this land - one woman was born there in her home in 1918 and has lived there her whole life. These people fought the case to the Supreme Court, where a 5-4 ruling on Thursday ruled in favor of the government.

The Supreme Court has interpreted "public use" to mean anything that does the public good. Under this ruling, the government can only seize land if they use it to promote the public good. Justice Stevens (speaking for the majority) stated that the "petitioners' proposal that the Court adopt a new bright-line rule that economic development does not qualify as a public use is supported by neither precedent nor logic. Promoting economic development is a traditional and long accepted governmental function, and there is no principled way of distinguishing it from the other public purposes the Court has recognized." The community of New London has been struggling since the closing of the Naval Undersea Warfare Center, which formerly employed 1500 people. The new projects will create hundreds of thousands of dollars in tax revenue and provide hundreds of jobs, almost certainly jump-starting the local economy.

Enough of the highlights of the Post article and the decision transcript. In my opinion, this is decision is atrocious, unlawful, and menacingly powerful. The government can now seize any land it sees fit and give it to business interests to earn itself more money. This is a flagrant abuse of property rights (as it basically eliminates them) and of our constitution. Of course the owners of seized land will be compensated - but history has shown that owners are rarely compensated to the full monetary value of the property, not to mention emotional value and the value of the right to own property. What is to stop government and business collusion and corruption, which has been going on since government and business existed together? The business wants someone's land, so it offers favors to its local lawmaker and boom, the government seizes the land and turns it over under the guise of increasing jobs and tax revenue. Obviously jobs and revenue will indeed increase, but this should not happened in an unrestrained matter that flagrantly abuses our rights! Part of the government's job is to protect people from business (again, within limits). I'm a conservative and even I know this!

Walmart to me is the prime example of potential abuse in this case. Walmart easily provides hundreds of jobs and is pretty much guaranteed to succeed no matter where you put it. So taking your home to build a Walmart under this new decision is not unreasonable at all. I also use the Walmart example because Walmart constantly comes under fire from democrats, liberals, and people who dislike big business. This decision, plainly stated, involves the government taking your rights and giving them to big business. That is why I can't understand why anybody, Republican or Democrat, liberal or conservative, libertarian or Constitutional or Green or what have you, would support this decision. And yet, the five Justices who typically vote to the left did.

The majority in this case were justices Stevens, Kennedy, Souter, Ginsburg, and Breyer. As afore mentioned, Stevens was the one who said that "public use" can be interpreted as "public purpose," such as creating jobs and redistributing land (which of course has a lot of people crying socialism). The dissenters were Rehnquist, Scalia, O'Connor, and Thomas. The best defense of the dissent was made by Sandra Day O'Connor (taken from the transcript of the case, Kelo v. New London):

Today the Court abandons this long-held, basic limitation on government power. Under the banner of economic development, all private property is now vulnerable to being taken and transferred to another private owner, so long as it might be upgraded--i.e., given to an owner who will use it in a way that the legislature deems more beneficial to the public--in the process. To reason, as the Court does, that the incidental public benefits resulting from the subsequent ordinary use of private property render economic development takings "for public use" is to wash out any distinction between private and public use of property--and thereby effectively to delete the words "for public use" from the Takings Clause of the Fifth Amendment. Accordingly I respectfully dissent...

Where is the line between "public" and "private" property use? We give considerable deference to legislatures' determinations about what governmental activities will advantage the public. But were the political branches the sole arbiters of the public-private distinction, the Public Use Clause would amount to little more than hortatory fluff. An external, judicial check on how the public use requirement is interpreted, however limited, is necessary if this constraint on government power is to retain any meaning.

Such a good point. If "for public use" means "for private use," then why put "for public use" in the Constitution? Thomas' dissent was great as well, describing how land in situations like these is typically taken from low-income, urban areas, because these areas need revitalization. Thus this ruling will disproportionately hurt the poor. Again - Democrats as well as Republicans should speak up. This is most definitely a bipartisan issue.

And of course, this whole thing speaks volumes to our need to restrain activist Supreme Court justices from legislating from the bench. To do away with this decision would take an amendment to the Constitution - which means a majority in the House and a 2/3 majority in the Senate. Even with a large conservative majority that's tough. Fortunately Congress and local government can restrain the ruling (which thankfully some 8 states have already done), but there are so many other cases that point to this need. I will probably post on some of them at a later time. It seems to me that our founders just overlooked the need for a check and balance on the Supreme Court. Perhaps the idea of justices using their power to make law instead of interpret it never occurred to them. But something has to be done. The best idea I've heard to date is simply tacking on a limit to justices' stay on the bench. Maybe somewhere between 4 and 10 years. I think electing them would cause even more activism, and encourage them to make decisions that please their constituents, which would be a bad idea. I'm interested in finding reasons why amending the Constitution to limit their stay on the bench is a bad idea. I'd also like to find some other ideas on how to fix this problem. Something has to be done if this court continues to remove our constitutional rights.

I sincerely hope that some more action will be taken to restrict this ruling in the near future. It's almost fallen off the radar screen in the media and talk radio, and I hope this doesn't signal voter apathy about the issue, because I believe it is an important one.