Posted on 06/24/2005 11:20:02 AM PDT by logician2u
The Supreme Court and the End of Limited Government
Yesterday's Supreme Court ruling permitting governments forcibly to transfer property through eminent domain from one private party to another for the sake economic development did not come out of the blue. Although the "takings" clause in the Fifth Amendment to the U.S. Constitution specifies "nor shall private property be taken for public use without just compensation," the "Court long ago rejected any literal requirement that condemned property be put into use for the general public" (Hawaii Housing Authority v. Midkiff, 1984, cited in the current case, Kelo et al. v. City of New London et al.).
In 1954 the Court unanimously upheld Washington, D.C.'s taking of a department store as part of a plan to replace a blighted neighborhood, although some of the land would be turned over to private parties (Berman v. Parker). In 1984 the Court upheld a Hawaii statute that gave tenants ownership of their apartments against the will of the owner (Midkiff). The objective of the statute was to diffuse the ownership of land, and the Court deferred to the legislature's belief that this was a proper public objective. What counted, the Court wrote, is "the taking's purpose, and not its mechanics." Other cases could be cited. In the current case Justice John Paul Stevens, writing for the 5-4 majority, invoked deference to the people's representatives in explaining why the taking of homes in New London, Connecticut, for economic development is something the court should countenance. "Because that [development] plan unquestionably serves a public purpose, the takings challenged here satisfy the public use requirement of the Fifth Amendment." In other words, public use includes any valid "public purpose," and legislative bodies have wide latitude in acting on behalf of the public. It is of no consequence that a private party will benefit in the process. "Quite simply," Stevens writes, "the government's pursuit of a public purpose will often benefit individual private parties." In a concurring opinion Justice Anthony Kennedy opined against the petitioners' plea for a rule making economic-development takings per se or at least presumptively invalid. "A broad per se rule or a strong presumption of invalidity, furthermore, would prohibit a large number of government takings that have the purpose and expected effect of conferring substantial benefits on the public at large and so do not offend the Public Use Clause." That the majority followed the Court's precedent hardly makes the decision easier to swallow. Today it is clearer than ever that government can take property and transfer it to private individuals so long as it claims that its overriding purpose is the betterment of the public. The only limit set out by the Court is that the taking not be solely for private benefit. But that is no real limit at all. There is a word for a system in which private owners are permitted to retain their property so long as they use it in for the public good--as understood by the political authorities. The Dissenters This is scary. As Justice Sandra Day O'Connor writes in her dissenting opinion, "For who among us can say she already makes the most productive or attractive possible use of her property? The specter of condemnation hangs over all property." Then she adds perceptively, "[T]he fallout from this decision will not be random. The beneficiaries are likely to be those citizens with disproportionate influence and power in the political process, including large corporations and development firms. As for the victims, the government now has license to transfer property from those with fewer resources to those with more. The Founders cannot have intended this perverse result." O'Connor's words are to be savored, although she largely accepts the precedents, striving only to distinguish them from the current case. But it is to Justice Clarence Thomas we must turn for a model of proper constitutional interpretation and reasoning. His dissenting opinion goes further than O'Connor's by calling the precedents into question. It is refreshing indeed. Thomas writes: "Today's decision is simply the latest in a string of our cases construing the Public Use Clause to be a virtual nullity, without the slightest nod to its original meaning. In my view, the Public Use Clause, originally understood, is a meaningful limit on the government's eminent domain power. Our cases have strayed from the Clause's original meaning, and I would reconsider them." (Emphasis added.) Thomas proceeds to show, first, that it is sound constitutional principle to regard every word in the Constitution as meaningful and purposeful; second, that use at the time of the framing meant the "act of employing"; third, that to construe use more broadly would make the takings clause duplicative of powers already expressly delegated; and fourth, that the common law and great legal authorities such as Blackstone support this narrow reading of the word. Thus, "The Constitution's text, in short, suggests that the Takings Clause authorizes the taking of property only if the public has a right to employ it, not if the public realizes any conceivable benefit from the taking ... The Takings Clause is a prohibition, not a grant of power ... The Clause is thus most naturally read to concern whether the property is used by the public or the government, not whether the purpose of the taking is legitimately public." Since that is the case, the issue of deference to the legislature is put into perspective: "[I]t 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." He concludes: "When faced with a clash of constitutional principle and a line of unreasoned cases wholly divorced from the text, history, and structure of our founding document, we should not hesitate to resolve the tension in favor of the Constitution's original meaning." (Emphasis added.) Dissenting opinions are, alas, just that. As things stand, the majority rules. Governments may take private property and give it to anyone they like; all they must do is proclaim that this serves a public purpose. How in principle can one show otherwise? The Court has spoken: it will not second-guess such decrees. A final note: It should go without saying that even the most narrowly construed eminent-domain power would violate individual rights. That taken property is to be literally used by members of the public or by the government itself provides no valid justification for the taking. Either a person owns his legitimately acquired property or he does not. The requirement of "just compensation" cannot turn theft into something else. There is no just compensation possible in a forced sale. What makes a transaction legitimate is not compensation but consent. That said, the framers at least sought to limit the government's eminent-domain power. Yesterday, the Supreme Court erased the final traces of that limit.
6/24/05
by Sheldon Richman
Sheldon Richman is the editor of The Freeman.
It becomes more clear with every opinion...Clarence Thomas is in a class by himself on the Court
In every case, he traces the meaning of the words at issue in the particular case...searching for the meaning at the time the Constitution was ratfied so as to tell us how those who agreed on the Constitution would have construed the words
In my opinion, he is a throwback to another time...a giant.
If the we were to add a few more justices like him ...committed to an original understanding of the Constitution and possessing the integrity to apply that understanding...Thomas could revolutionize Supreme Court jurisprudence. We can only hope that more like him join the Court in the near future
Won't happen. The Left will continue to try to create their utopia until the day it literally bites their collective a**es off, and then they'll apologize as the police state puts them in the ovens. There is a sizeable segment of the population who is emotionally childlike and mentally disturbed.
I think there is going to be a passionate backlash against this USSC decision. People of every political leaning will see the fundamental unfairness of having your home stolen for what some hack judge calls "fair market value."
This case emphasizes the absolute necessity that President Bush win the fight over judicial nominations. The liberals on the Supreme Court have shown their true stripes-greed, corruption and power uber alles.
One would hope, but I wouldn't hold your breath. Of course, with every new expansion we hear the cries of "This is it. This decision cannot stand. This is the decision that finally wakes people up." In an age of homeowners associations that can already dictate to you what you can and can't place on property you supposedly don't own, in a time when property confiscation of the homes of the retired who can't keep up with ever increasing property taxes, this decision may just be greated with the same level of indifference. After all, maybe this can make it easier to finally get rid of that neighbor with the pink flamingos on his lawn! It won't matter to people unless the bulldozers are at their door. And by that time we will have long since been disarmed and pacified anyway.
We must get used to the idea that the courts are not going to undo what's been put in place over the last 150 years. In general, they are going to favor the government for whom they work, not the people they rule over.
Legislators, who take an oath to uphold the Constitution, need to be held to that oath and not push the boundaries of their power just because the Supreme Court says they may. (This applies double to local officials, who seem to think they're above the law.)
Thomas for Chief Justice bttt
I won't trouble you to ask for a source, since it's obviously an opinion (which I tend to share).
In addition to those you mention, I believe there are quite a few conservatives who naively believe that by electing Republicans or appointing Republican judges the Republic will be saved. They are living in a fantasy world, IMHO.
Don't count on any GW appointees to the Court helping to reverse Kelo, either. Two justices on the losing side are set to retire shortly. It will be a long time before another eminent domain case reaches the court, and even longer before Justice Thomas has enough compatriots for a good poker game.
Remember, it is that Liberal Left, with its mouthpieces in the Democratic Party, who are most shrill in their labeling of Republicans and the current Administration as being beholden to, and acting on behalf of, special interests and big business. Yet, Justice O'Connor rightly sees the beneficiaries of this ruling as being, not individual citizens going about their daily business, but those in positions of power in government and big special interests--developers and big corporations.
It will be interesting to hear how the Democrats can spin it. The dissenting opinions of Thomas, O'Connor, and others should be widely published in order that citizens may be enlightened and equipped to articulate the principle of liberty embodied in the Founders' views on private propery rights.
Thomas is the best SCOTUS judge of them all.
The rest are not fit to shine his shoes.
It will all blow over in a few weeks and we'll be back to business as usual. Who's going on trial next?
You got that right, Laz.
That would be "groundswell." (Aren't all wells groundwells?)
But then, I suppose there are mines and landmines, so why not groundwells? Or waterswells, for that matter.
Uhmmmm, yes.
I would surmise that this is true and that it was amply demonstrated by the some 49% of America's voting public who voted for the treasonous Kerry in the last election.
Yep, it ends with a whimper, not a bang.
Yes, or did Tom Cruise jump on any more couches today? The only outrage comes when they are finally at your door and by that point it's too late. And the only thing your neighbors will do is stand around and say, "Gee, that's too bad, but at least my house is still here." It's the same attitude you see with each new invasion of privacy by the government....you get "Well, if you don't have anything to hide, why are you upset?"
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