More on Kelo...

Kelo Et Al. v. City Of New London Et Al.
Justice Sandra Day O'Connor has (rightly, in my opinion) taken a lot of heat from the right over the years. Today I want to quote her, because I think she's absolutely 100% right.

Over two centuries ago, just after the Bill of Rights was ratified, Justice Chase wrote:
“An ACT of the Legislature (for I cannot call it a law) contrary to the great first principles of the social compact, cannot be considered a rightful exercise of legislative authority .... A few instances will suffice to explain what I mean .... [A] law that takes property from A. and gives it to B: It is against all reason and justice, for a people to entrust a Legislature with SUCH powers; and, therefore, it cannot be presumed that they have done it.” Calder v. Bull, 3 Dall. 386, 388 (1798) (emphasis deleted).

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 whowill 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.

This is such a, to borrow a phrase, "self-evident truth" that it literally boggles the mind to find it expressed in the minority opinion.

I was one of the many voices raised in outrage over the comments made by Senator Durbin. It is, to my mind, not acceptable to compare Guantanamo Bay to the Soviet Gulag. And that's not what I'm about to do.

But if we no longer own property, just hold it at the whim of some "central planning committee," which is what this decision seems to say, how is our system any better than the 20th century Soviet system? Wasn't that the essence of the communist economic system? "We have central planning committee's to determine what to do with the people's property." Well, damn it, this wasn't "the people's" property. This is the property of the Kelos and the Derys. It isn't blighted, it isn't there for the City of New London to give to Pfizer, and it is absolutely outrageous that the United States Supreme Court says that they can.


From the majority opinion:

For more than a century, our public use jurisprudence has wisely eschewed rigid formulas and intrusive scrutiny in favor of affording legislatures broad latitude in determining what public needs justify the use of the takings power.

I question - strongly - the placement of the adverb "wisely" in that sentence. If there is anything that legislatures ever do that warrants "intrusive scrutiny," it is the confiscation of private property for "public use," ANY public use.

Those who govern the City were not confronted with the need to remove blight in the Fort Trumbull area, but their determination that the area was sufficiently distressed to justify a program of economic rejuvenation is entitled to our deference.

No, Justice Stevens, they were not. The people who were entitled to your "deference" were the United States citizens who owned that property.

The City has carefully formulated an economic development plan that it believes will provide appreciable benefits to the community, including—but by no means limited to—new jobs and increased tax revenue. As with other exercises in urban planning and development,12 the City is endeavoring to coordinate a variety of commercial, residential, and recreational uses of land, with the hope that they will form a whole greater than the sum of its parts.

Good for the city. IT'S NOT THEIR PROPERTY! THEY'VE NO RIGHT TO TAKE IT!

Given the comprehensive character of the plan, the thorough deliberation that preceded its adoption, and the limited scope of our review, it is appropriate for us, as it was in Berman, to resolve the challenges of the individual owners, not on a piecemeal basis, but rather in light of the entire plan. Because that plan unquestionably serves a public purpose, the takings challenged here satisfy the public use requirement of the Fifth Amendment.

So that's it? The City of New London thinks it can increase tax revenues by letting some other private enterprise have that piece of property, and that "unquestionably serves a public purpose?"

I beg to differ.

To avoid this result, petitioners urge us to adopt a new bright-line rule that economic development does not qualify as a public use...It is further argued that without a bright-line rule nothing would stop a city from transferring citizen A’s property to citizen B for the sole reason that citizen B will put the property to a more productive use and thus pay more taxes.

Gosh, how could someone come to that conclusion? Just because you're doing it in this very decision?

Such a one-to-one transfer of property, executed outside the confines of an integrated development plan, is not presented in this case.

It's not? Oh, that's right, we have that quasi-governmental "New London Development Corporation" in between, and they don't count as citizen B, do they? Pfizer? Oh no, they're not taking the property - the New London Development Corporation is.

Bloody brilliant. But I guess it worked, didn't it?

Alternatively, petitioners maintain that for takings of this kind we should require a “reasonable certainty” that the expected public benefits will actually accrue. Such a rule, however, would represent an even greater departure from our precedent. “When the legislature’s purpose is legitimate and its means are not irrational, our casesmake clear that empirical debates over the wisdom oftakings—no less than debates over the wisdom of other kinds of socioeconomic legislation—are not to be carried out in the federal courts.”

So it may not even accomplish the desired "public purpose" - we don't care. The City Of New London has a plan, they want the property, they claim a "public purpose" that consists of increased property values, they can't and won't prove it - good enough, Mrs. Dery, out of that house you've lived in for 60 years - we've got to build a parking lot...


There have been cries, mainly on the left, of outrage at the contempt that people have aimed at the Supreme Court, at the judicial system in general. They've earned every single little bit of it...



Update:
Best commentary so far is from Clayton Cramer.

My contempt for the liberal end (or is that the back end?) of the Court grows everyday. There are rights that are explicitly contained in the Constitution, such as this guarantee about private property only being taken for public use--and the Court rationalizes a way around it. The same bunch, however, finds a right to have homosexual sex--a right that is, at best, implicit. What's the point of a written Constitution if the rights that are explicitly there get ignored, and rights that no one bothered to get approved by Congress and ratified by the states, are upheld?