Friday, June 24, 2005

Kelo v. City of New London

Anyone who owns a home, or dreams of owning one, should be profoundly disappointed by the Supreme Court's 5-4 ruling in favor of the City of New London. Basically, the Court affirmed the right of your town or county to take your house to make way for a Target, an Ikea or a Best Buy.

It should come as no suprise that the split went Stevens (writing for the majority), Ginsburg, Breyer, Souter and Kennedy (the last two living proof that with the power to appoint Supreme Court Justices, a President doesn't always get what he bargained for) in favor; of course, leaving Rehnquist, Scalia, Thomas, and O'Connor against.

I am too tired and don't feel like working myself into a lather, so I haven't read Stevens' opinion. I have only read the news write-ups about it. As I understand it, the majority bloc did for the power of eminent domain (or takings clause) what Congress has done for the interstate-commerce clause: twisted it to mean pretty darn much whatever they say it means.

The traditional interpretation of eminent domain was that state and local governments could only take your property (traditionally land and/or a home) in order to benefit "public use". Throughout our country's history this had been interpreted to mean that eminent domain would be invoked in cases of public works (roads, bridges, schools, airports and the like).

In all cases of eminent domain, the appropriating entity must compensate the owner fairly. In Kelo, compensation was never the issue. It was understood that most people, fairly compensated or not, usually didn't want to give up their homes. At issue is the definition of "public use".

In Kelo, a narrowly-divided Supreme Court expanded this interpretation to include state and local government taking of private property for private development. In other words, your town could take your home, against your wishes, and allow a Starbucks to be built on what had previously been your land. This represents a radical departure from the previous interpretation since now the creation of private sector jobs and tax revenues is deemed to benefit public use.

I usually eschew "slippery slope" arguments but one seems a propos here. Just how many jobs must be created in order for it to be deemed a benefit to public use? If you and your wife are both employed, would the creation of three jobs be considered enough to justify a public taking?

In truth, not having read the majority opinion, I don't know if the Court enunciated any criteria in this area. I read nothing of the sort in any of the news pieces I read on the subject. This decision can only be seen as a drastic setback for private property rights. Combined with the Court's ruling in the Gonzalez v. Raich medical marijuana case, which brought back a more expansive view of the interstate-commerce clause, these rulings represent a blow to those citizens in our country who would like to see the power of government limited.

Well, at least Scalia got this one right. I still have a hard time believing he voted to uphold Gonzalez v. Raich.

No comments: