Policy Perspective
Undue Process
By Sean M. Smith

On June 23, the Supreme Court handed down a ruling that changed the commonly accepted understanding held by virtually every American about what it means to own private property. In Kelo v. City of New London, the highest court in the land ruled that government can take property from one private party and give it to another private party merely if it can be demonstrated that the result of such a taking will put the land to use which generates more jobs and revenue. Takings that are purely for economic development, as opposed to the historic requirement that they be for “public use” (such as for highways, dams, government buildings, or to eliminate a property use that harms the public), are now permissible thanks to this 5-4 decision of the court.

The day after the ruling, a Wall Street Journal editorial quipped, “The Supreme Court’s ‘liberal’ wing has a reputation in some circles as a guardian of the little guy and a protector of civil liberties. That deserves reconsideration in light of yesterday’s decision...”

In a July mailer to its supporters, the Pacific Legal Foundation, which filed an amicus brief in the case, intoned, “(T)he United States Supreme Court approved the radically un- American notion that you own your property only as long as someone more influential doesn’t want it.”

Elsewhere, reaction to the ruling has also been overwhelmingly negative. In a July 27 feature on the Fox News Channel, Democrat and Republican members of Congress took turns in front of a camera denouncing the Kelo holding and its far-ranging implications. In wrapping up the story, Fox reporter Major Garrett noted that opposition to Kelo has united liberals and conservatives and has awakened some liberals to the potential excesses of judicial activism. Groups as ideologically diverse as the libertarian Institute for Justice (which represented petitioner Susette Kelo) and the NAACP have been unanimous in their criticism of the high court’s ruling.

The Kelo case arose when the city council of New London, Conn., conceived an economic development scheme to revitalize an area near the Fort Trumbull neighborhood. The council chartered a nonprofit corporation dubbed the New London Development Corporation (NLDC), whose board of directors was composed of non- elected local business leaders. The NLDC created a plan for the redevelopment of 90 acres of Fort Trumbull, which would make heavy use of condemnation, through eminent domain, of 115 privately owned properties to achieve its goals. Once confiscated, the property would be turned over to a number of developers to create, among other things, upscale shops, a museum, new residences, and a 90,000-sq.ft. research facility for Pfizer, Inc. The council defended this plan purely in terms of the new businesses, jobs and revenue it would bring to the area.

The problem, of course, was that rather than being taken for “public use” as the Fifth Amendment would appear to explicitly require, the 115 lots would instead be taken from one group of private owners and transferred to other private owners. Kelo and a handful of homeowners who were unwilling to sell (including Wilhelmina Dery, who had lived in her Fort Trumbull house since being born there in 1918) sued the city, alleging the NLDC was attempting a taking of private property for other than “public use,” in violation of the takings clause. After a trial court initially awarded an injunction in favor of the homeowners, the city appealed the case to the Supreme Court of Connecticut, which reversed the injunction and upheld the takings in their entirety. The homeowners then appealed to the U. S. Supreme Court, which also sided with the city.

Like most evolving legal doctrines issuing from the Supreme Court over the past century, Kelo did not spontaneously arise from nothing. A series of badly decided precedents pockmarked with sketchy legal reasoning formed its foundation. The majority opinion, authored by Justice Stevens, relied on two distinct lines of cases which had the combined effect of cavalierly replacing the clear wording of the takings clause—that property can be taken only for “public use”—with new language neither found in the Constitution nor contemplated by its framers: “public purpose.”

And so begins the slippery slope to meaninglessness, as Stevens heaps rationalization upon rationalization: “Viewed as a whole, our jurisprudence has recognized that the needs of society have varied between different parts of the Nation, just as they have evolved over time in response to changed circumstances.” While manifestly obvious, this hardly changes the objective meaning of the statement, “(N)or shall private property be taken for public use without just compensation.”

The founders drafted a Constitution designed to endure over time. Their keen recognition of the fact that circumstances change can be found in the mechanism built into the Constitution for amending it. It was this process and this process alone that was intended to be the means of adapting the Constitution to change; not the whim of five oligarchs in black robes. As Reid Cox, general counsel of the Center for Individual Freedom, put it in an August 6 Fox News editorial, “For more than two centuries now, ‘We the People’ have been telling our government to respect some self-evident truths. These basic instructions are written down clearly and concisely. And just as clearly, we told our government that only an elected super-majority could change these instructions.”

The court has held in the past that when legislation affects a “fundamental” right, “strict scrutiny” of the law is required to ensure substantive due process. The framers of the Constitution deemed the right to property sufficiently “fundamental” to mention it twice in the Fifth Amendment alone. Property rights were further enshrined in the Bill of Rights by barring the government from quartering soldiers in peoples’ homes without their consent (Amendment III); keeping people secure in their houses by prohibiting unreasonable searches and seizures (Amendment IV); and prohibiting excessive bail and fines (Amendment VIII).

Both legal encyclopedist William Blackstone and philosopher John Locke, whose works informed the foundation of the Anglo-American legal system, described property rights variously as “natural,” “fundamental,” “sacred,” “inviolable,” and “inalienable.” Blackstone in particular pulled no punches about where he stood on the issue of takings for some incidental public benefit: “So great...is the regard of the law for private property that it will not authorize the least violation of it; no, not even for the general good of the whole community.”

Justice Thomas chastises this relegation of property rights to second-class status in his dissenting opinion: “In my view, it is imperative that the Court maintain absolute fidelity to the (Takings) Clause’s express limit on the power of the government over the individual, no less than with every other liberty expressly enumerated in the Fifth Amendment or the Bill of Rights more generally.” Further along in his dissent, Thomas explains, “a court owes no deference to a legislature’s judgment concerning the quintessentially legal question of whether the government owns, or the public has a legal right to use, the taken property,” and that “it is most implausible that the framers intended to defer to legislatures as to what satisfies the Public Use Clause, uniquely among all the express provisions of the Bill of Rights. We would not defer to a legislature’s determination of the various circumstances that establish, for example, when a search of a home would be reasonable...”

A court’s function is to protect citizens from legislatures that have strayed outside their constitutional authority, not simply to rubber stamp every act of elected lawmakers in the name of “deference.” As Justice O’Connor notes in her dissent, “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.”

O’Connor, it seems, can instinctively spot the error in a holding which decrees that governments can take from Peter and give to Paul if it can be established merely that Paul will make more “productive” use of the land. But her opinion appears to focus mostly on the bad public policy implications of the holding, and not so much on the fact that it ignores the text and plain meaning of the Constitution, or on the origin of the problem that brought the court to this point, using “public purpose” interchangeably with “public use” in many instances.

But words mean things. Public use means the public (or at least the government) is now using the property that has been condemned through eminent domain. Public purpose can mean anything. And on this point Thomas is much more incisive: “The most natural reading of the Clause is that it allows the government to take property only if the government owns, or the public has a legal right to use, the property, as opposed to taking it for any public purpose or necessity whatsoever…When the government takes property and gives it to a private individual, and the public has no right to use the property,” Thomas observes, “it strains language to say that the public is ‘employing’ the property, regardless of the incidental benefits that might accrue to the public from the private use.” Thomas’ commentary ranges from analytical to sardonic: “(With this ruling), the Court replaces the Public Use Clause with a ‘Public Purpose’ Clause . . . or perhaps the ‘Diverse and Always Evolving Needs of Society’ Clause.”

O’Connor’s opinion is compelling, and Thomas’ is a gold mine of quote-worthy passages displaying some of the clearest and most erudite legal reasoning in recent memory. Indeed, it is the fundamental clarity of the majority’s error and the dissenters’ correctness that has allowed opposition to this case to cut across party lines. Liberals recognize that the poorest Americans, many of them minorities, will likely suffer disproportionately as state and local governments take advantage of their new, court-sanctioned license to carry out economic development schemes by “taking” low tax-producing properties. Conservatives harbor deeply ingrained instincts toward the protection of property rights. People of all backgrounds seem to recognize intuitively that something has gone badly wrong with this case.

Yet, it doesn’t matter. Five of nine justices were convinced, so the decision stands. It is unappealable. To paraphrase a now-infamous quote from Justice Souter, the Supreme Court is not ultimate because it is infallible; it is infallible because it is ultimate. All federal judges serve lifetime appointments, and are virtually impossible to unseat. As Reid Cox explains, “Such insulation from the whims of popular sentiment certainly promotes fair and independent judging, just as it equally encourages arbitrary and unchecked policymaking.”

This case resoundingly underscores the importance of appointing the right people to this elite body that ultimately determines the meaning of the supreme law of the land.

The bright spot emerging from the Kelo debacle is that outraged citizens—some of them in positions to influence policy—are already taking steps to create restraints on eminent domain in states and localities throughout the nation. Oregon, with the passage of Measure 37 last year, was ahead of the curve on this issue. While the Oregon legislature has thus far failed to clear up some of the legal ambiguities of that ballot initiative, its very passage is of tremendous symbolic importance. A group calling itself the Castle Coalition has been formed in direct response to Kelo, and is working with concerned citizens around the country to rein in local governments that have demonstrated little or no willingness to temper their pet projects in the name of citizens’ property rights. It is working with the legislatures of at least 25 states to effect legal protections and prevent abuses such as those suffered by the Kelo petitioners.

It is unfortunate, however, that matters have come to this. But We the People rely on legislatures to do the right thing at our peril and subject to their whim. A stalwart and inflexible constitutional standard, one which would protect all citizens of the United States equally regardless of where they live, would have been vastly preferable to numerous local grass roots campaigns, which will necessarily meet with differing degrees of success. But until there are five justices on this court who are willing to stand for the Constitution meaning what it says, the effort to keep people secure in their homes can only continue in this manner.

BrainstormNW - October 2005

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