The great irony of America is that it has achieved so much public good by letting people simply tend to their private business.
By contrast, the most disastrous social experiments of our age –Marxism and its less ambitious offspring– have ruined so many private lives by holding the “public good” so high that no one life seemed to matter. But the public good is, in the end, nothing more than the sum of several million seemingly insignificant private lives. You cannot dispose of these individuals and their individual rights and somehow increase the public good.
That is why last week’s Supreme Court decision in the case of Kelo v. New London, regarding government’s now unfettered power of “eminent domain” is so disturbing –and, frankly, so un-American. “Eminent domain,” of course, is the power of government to seize the private property of citizens against their will. This power has always existed in this country, being rooted in Common Law far older than America itself, and it is sometimes a necessary measure that must be taken to protect the public good.
It is, however, a loathsome and dangerous practice, subject to much abuse, and contrary to the more general principle of protection of private property rights that is so fundamental to our society. So it has been –until now – fairly limited in the United States. Historically, land was seized for public projects –such as roads, military bases, canals, or other public facilities. In many cases, these facilities must occupy a very particular piece of land to be functional. And (in principle, anyway) they are something a society cannot do without. They simply must be built to have a nation of any worth.
But the case decided last week was not about public use. In a 5-4 decision, the Supreme Court has made it legal for government to seize the property of one citizen and deliver it (at a government determined price) to another private citizen or corporation simply because it claims the new owner might put it to better use.
Your house may be nice, but wouldn’t a strip mall be a bit better? If the city council thinks so, you now have no choice. You will sell to the mall developer whether you want to or not, and you will be told the price. Anyone can now be openly forced to “sell” his or her property to a politically more-favored potential owner. Any farm might be better used as a resort for rich folks. Any business might occupy the perfect spot for a competitor’s business, which after a few “campaign donations” could be deemed a better use of the land.
But what is a “better use” exactly? Specifically mentioned in the Kelo case was the issue of “tax and other revenues”. In this case, the city of New London, Connecticut has decided to “revitalize” its downtown and waterfront areas with grand new businesses and homes. Some evidently not very vital people already have businesses and homes there, however, so the city is using the power of eminent domain to take their properties. They will then transfer these properties to the preferred new development –which includes a hotel, a “small urban village” of quaint shops and restaurants, and a “riverwalk” for the residents of better, upscale housing. The current properties are not blighted or run-down, but the city successfully claimed that this land-grab benefits the public good, because the new development, being worth more than the old neighborhood, will pay more in “taxes and other revenues.” In other words, people are being kicked out of their well-maintained homes simply because the City wants to replace them with more efficient taxpayers.
The value of people can now be determined, it seems, by how much money they can provide government.
After the City of New London’s victory in this case, governments may now use eminent domain to cultivate taxpayers like some sort of revenue garden. Those crops that don’t produce can simply be weeded out and re-planted with a higher yielding taxpayer –or the mayor’s brother-in-law, whichever suits the powerful at the time.
This can now occur despite the fact that the Constitution limits the power of eminent domain in the Fifth Amendment, stating “nor shall private property be taken for public use, without just compensation.” It makes no mention of private property being taken for someone else’s private use, an unthinkable concept to the authors of the Bill of Rights. Indeed, the concept of a law taking property from one person and giving it to another was so obviously impermissible to the Founders that (as quoted in the dissenting opinion in the Kelo case), Justice Samuel Chase, appointed to the Supreme Court by George Washington, once used it as a hypothetical example of the sort of thing that was so outrageous that it would violate “the great first principals of the social compact” from which all legislatures draw their legitimate power to govern. Adding, “it is against all reason and justice, for a people to entrust a legislature with such powers; and, therefore, it cannot be presumed that they have done it.”
Those who actually founded the United States may never have thought to presume such a thing, but Justices Stevens, Breyer, Souter, Kennedy, and Ginsburg –the five who voted for the permissibility of the new power of eminent domain– are not limited in their presumptions by any such social compact.
Four Justices, however, stood against creating a new power of government to assign land to preferred owners: Justices O’Connor, Scalia, Thomas, and Rehnquist — the last three being the “conservative” members of the court and O’Connor being at least right-leaning.
Cases such as this –which are about preserving the Constitutional rights of ordinary individuals, rather than finding new rights for criminals, promoting social causes from the bench, or expanding the power of government—are precisely why it is important that conservatives fight for new Justices that believe in the clear limitations placed on government by the original intent of the Constitution and its amendments.
The dreadful Kelo case did not have to be decided this way; the left-leaning Justice Anthony Kennedy (perhaps best known for his belief that he can use foreign law to decide US cases) sits on the court today because Democrats in the Senate defeated the conservative nominee Robert Bork in 1987.
It will be tempting for President Bush, when the next Supreme Court vacancy soon occurs, to nominate another “moderate” like Anthony Kennedy to make Senate confirmation politically easy. I hope that Kelo v. New London reminds him that we have paid for the one such compromise for 18 years now.
We need Justices that understand that the public good is best served by preserving the rights of private citizens.