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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