Tuesday :: Jun 28, 2005

Kelo v. City of New London


by Marie

SCOTUS got this one right. And they did so on multiple levels. Liberals and progressives would be wise to hold their tongues for a few days, and think through the complexity of any SCOTUS decision whenever their first response is to side with Rhenquist, Scalia and Thomas, particularly when they are in the minority. On occasion, one of more of those three can reach the right decision, but even then, not always applying the best legal and Constitutional principles and arguments. The response on the left to this decision demonstrates that the right has no monopoly on criticizing SCOTUS decisions simply because they don’t like them.

A SCOTUS that does nothing more than agree with my biases,prejudices and superficial evaluations wouldn’t be worth having. The left would be wise to remember that the standard for the SCOTUS should be first rate legal minds. Men and women who can balance competing rights fairly, apply fundamental principles consistently and not be blinded by either the past or contemporary popular opinion. Rhenquist,Scalia and Thomas once again demonstrated inconsistency on the questions of states’ rights and capitalism. O’Connor demonstrated her well-meaning soft spot for individuals. And Stevens once again demonstrated consistency and courage.

The question before the court was only the definition of “public use” as it applies to “eminent domain.” O’Connor’s dissent was as muddled as Bush vs. Gore. She claimed that the majority opened the door to lands grabs by the wealthy over the poor. That’s rich coming from a Republican. Since when is wealth transfer from poor to rich the test for Constitutionality? And if it were, would the opposite not also be similarly prohibited? Rightly or wrongly, this country tolerates a lot of both, and on balance, the “mores” benefit disproportionately to the “have none.” I seriously doubt that O’Connor is ready to find that sales taxes and mortgage interest and property tax deductions for homeowners unjustly favor those with more. However, this case did not involve the “just compensation” component of the Fifth Amendment. Therefore, O’Connor was arguing a hypothetical. There is no guarantee that the property taken will appreciate at a faster rate than the replacement property the homeowners can buy. There’s not even any guarantee that New London will survive with the new development or the property will retain its current value. Perhaps if O’Connor were not from a large land owning family, her decision would not have been so contorted.

Stevens and the majority deferred to “the people”on the definition of “public use.” The Fifth Amendment doesn’t say “common use”; it says “public use.” The Constitution works best when it is interpreted most broadly and allows the greatest leeway for states and local governments to define what works best for their communities, provided that doesn’t conflict with equality and equal protection of individuals or doesn’t degrade the quality of life in other communities. If the citizens are not satisfied with how the elected officials define their community standards, they are free to elect others who will. This puts land use decisions right where such questions and issues should be addressed. As with the term “public use,” community is not fixed and immutable. And no community should be subject to the tyranny of a single or a few landowners.

The major complaint that seemed to be voiced by the left in this decision is that the property was going to be used in “for profit” enterprises. As if this has never been done before. Sports facilities are probably the most egregious form of public/private enterprises. Not only do public agencies use the power of eminent domain to get land for these facilities, but they also contribute public funds in some form while all the profits inure to the private team owner. Airport authorities facilitate air travel for private companies. Many citizens cannot afford a seat in those stadiums or airplanes. Purists claim that “public use” is limited to roads, bridges and public facilities. Where would private toll highways fit into that scheme? Does a single property owner have the right to consign a huge population to an overcrowded highway just because a new one will be privately owned for profit? Or consider property that is dangerous to the community and/or drains public funds. If its not suitable or needed for common use and the owner refuses to sell it, should the community be restrained from condemning it? If not, shouldn’t thecommunity have the right to sell it? Or would we prefer to raise our taxes to hold property that we don’t want or need.

It is unpleasant to see a political subdivision grab land and houses to pass along to private enterprises. But how much of the property that was taken decades ago for military installations was secured through the use of eminent domain? How much of it has been sold to for -profit operations when the military facilities became obsolete? Developers salivated over the decommissioning of The Presidio, but through local effort, and being located in a city that could survive without the increased tax base that could have been generated from private ownership and development, it remained public land, a national park. A park with portions leased to private for-profit enterprises like LucasFilms that are not open to the public. (Note: Bids were submitted for the property. Except for Lucas, all the bids were from professional real estate developers.) Then again, there are plenty of public facilities that are not open to the public -- ever try to have lunch at Langley?

Finally, the use “eminent domain” for public, not for profit use is no guarantee that it will be used wisely. Replacing private tenements with publicly owned future slums neither provided adequate housing for those who needed it nor enhanced the standing of liberalism or progressivism in the country. Many who were forced to sell their property fared better than their neighbors who were spared. Far more than the number of New London homeowners that don’t want to sell have demanded that a public agency buy their houses after a public improvement destroyed the value of their houses and the quality of their lives.

Democracy in a republic is frequently messy. It’s not always easy to determine if an issue best handled at the local, state or federal level. Absolute real property ownership rights protected at the federal level should scare us more than relying upon our smaller communities to define our rights. Communities without the right to use eminent domain could be decimated one by one by corporations like Walmart. In a variation of what they currently do, they could buy up all the retail space in a community for rock-bottom prices once those businesses fail. When they close their local Walmarts, they can locate their new Super Walmart much further away than they now do, satisfied that new small retailers cannot move back into local retail space. The rightwing is motivated, avaricious and diabolical and as such the left would be no match for them if private property rights were absolute.

This decision reminds us of the importance of local control and action. Walmart has gained its retail dominance because we forgot about local politics. We were too easily seduced by promises of bargains. I have no idea if the redevelopment plans for New London will be good for that community. Maybe they had no other option. Or didn’t look for or at other options. Or consider if some of the older houses could be integrated into a new development. All we know, and for better or worse, the majority in New London has spoken, and no consistent legal principle exists in our country to overrule their decision.

If only Kennedy had found the same level of respect for local knowledge in Bush vs. Gore as he did in this case, he would have ruled that FL could proceed with a public recount all those damn ballots. The ballots several FL Supreme Court judges suspected had not been counted. Ideological hacks like Rhenquist, Scalia and Thomas can’t help themselves, but Kennedy has no excuse and should be ashamed of himself.

Say a little prayer for the health and well being of Stevens, Souter, Breyer and Ginsberg. They are on the side of democracy, freedom and respect for the rule of law, and they constantly have to persuade one out of a population of two to keep the country on the right course. They may not be perfect, they may on occasion err, but we should all be so lucky as to have their track record of getting it right.

Marie :: 3:51 PM :: Comments (11) :: TrackBack (2) :: Digg It!