The blogosphere is buzzing about Kelo v. New London. Last week the Supreme Court turned the “public use” clause of the Fifth Amendment on its head. Local governments now have the power to snatch private property for “economic development” whether such development benefits the public or not.
Nutshell: In 1996 the feds closed the Naval Undersea Warfare Center in New London, Connecticut, and a lot of people lost their jobs. The city’s unemployment rate was double that of the rest of the state. A private organization called New London Development Corporation came up with a “revitalization” plan, and a pharmaceutical company, Pfizer, said it would build a $300 research facility to create jobs. Situated on the new development would be a hotel, restaurants, stores, marinas, a riverwalk, 800 new “residences” (condominiums?), a museum and business offices.
In order to do all of this, the city needed to kick a couple of homeowners off their property. One plaintiff, Susan Kelo, had made improvements to her house, which has a great view of the water, and the other plaintiff, Wilhelmina Dery, was born in her house and has lived there for 87 years. They sued the city on the grounds that the taking would violate the “public use” restriction of the Fifth Amendment. They argued that the economic development plan is not a “public use” for the purposes of the Takings Clause.
The rationale behind this restriction on government is obvious. In fact, the whole Constitution is one big restriction on government, but you wouldn’t know it these days. Private property is a basic right in the United States, and the government is restricted from interfering with this right.
But the founders knew that under certain circumstances, the government would need to interfere with this right. They defined as narrowly as possible an exception called eminent domain. The government could take private property for public use, but they must justly compensate the owner. Property could not be taken from one private citizen and given to another private citizen.
For example, if the government takes someone’s property to build a public road, railroad tracks, or power company, the “public use” intentions are clear. Taking private property that has been condemned or should be condemned in order to rebuild a blighted area for public safety or asthetics is another clear public use.
The court went through an analysis of the case law and history of public use. The issue:
The disposition of this case therefore turns on the question whether the City’s development plan serves a “public purpose.†Without exception, our cases have defined that concept broadly, reflecting our longstanding policy of deference to legislative judgments in this field.
In this case, they defined public use broadly and found that the government can take private property for economic development, which may or may not directly benefit the public. The court contended:
There is, moreover, no principled way of distinguishing economic development from the other public purposes that we have recognized….Clearly, there is no basis for exempting economic development from our traditionally broad understanding of public purpose.
And that’s the nail. Under the court’s reasoning, private property can be taken away from private citizens under an economic development plan. That is, the purpose need not be public use only; as long as there’s some secondary or indirect benefit to the public, the taking is for “public use” and, therefore, constitutional. End Nutshell
Bad, bad precedent.
That’s a basic overview of what happened, but if you have the time and inclination, I encourage you to read at least the majority opinion and the two dissents (Justice O’Connor and Justice Thomas). How the court arrived at its decision is very nuanced, and there’s much more to it than my little synopsis.
This decision will no doubt please the social engineers in the DC area. They’re pushing a socialist policy called “Smart Growth.” In order to alleviate traffic congestion, they say, the government must encourage private individuals and entities to build businesses and housing closer to Metro stations so people can “work where they live” and stay off the highways.
People want to get out of the stinking city and away from the crime and grime, but liberals want to bring them back. Thanks to stringent land use restrictions, housing prices are astronomical. And thanks to this case, local governments can now steal private property under an “economic development” ruse to create faux urban utopias that bored liberals have been lusting after for years.
The decision stinks, of course, but the Supreme Court has been doing this sort of thing for years (with more to come). They wield power like a machete, cutting up the original meaning of the Constitution and throwing it back in our faces. What they did in Roe v. Wade was unconscionable and perverted. They discovered some deeply hidden “right to privacy” in the Constitution, and that right extended to killing babies in the womb.
Nothing they ever do will be worse than that.
Related post: Government Regulations and Human Nature.
