Nobody's Property Is Safe

This has been a bad week for personal liberty. First, the House of Representatives voted to amend the First Amendment to restrict freedom of speech that takes the form of flag desecration. Then the Supreme Court ruled today that local governments can seize private property for any reason, even to turn it over to other private owners for development purposes.

The ruling in Kelo v. New London means that nobody's property is safe from the greedy hands of government. It eviscerates the right to private property in the United States.

Justice Anthony Kennedy, a Reagan appointee, was the swing vote in this decision, voting with the Court's four most liberal members (Stevens, who wrote the opinion; Souter, Ginsberg, and Breyer). The Court's other swing vote, Sandra Day O'Connor, wrote a dissenting opinion joined by the Court's most conservative members: Rehnquist, Scalia, and Thomas.

As talk show host Neal Boortz put it this morning: "You only own your home so long as your local government chooses to allow you to own your home."

Writing in her dissent, Justice O'Connor says:

Over two centuries ago, just after the Bill of Rights was ratified, Justice Chase wrote:

“An act of the Legislature (for I cannot call it a law) contrary to the great first principles of the social compact, cannot be considered a rightful exercise of legislative authority … . A few instances will suffice to explain what I mean… . [A] law that takes property from A. and gives it to B: 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.” Calder v. Bull, 3 Dall. 386, 388 (1798) (emphasis deleted).

Today the Court abandons this long-held, basic limitation on government power. Under the banner of economic development, all private property is now vulnerable to being taken and transferred to another private owner, so long as it might be upgraded–i.e., given to an owner who will use it in a way that the legislature deems more beneficial to the public–in the process. To reason, as the Court does, that the incidental public benefits resulting from the subsequent ordinary use of private property render economic development takings “for public use” is to wash out any distinction between private and public use of property–and thereby effectively to delete the words “for public use” from the Takings Clause of the Fifth Amendment.

Justice Clarence Thomas, who also joined in O'Connor's dissenting opinion, wrote separately:

If such “economic development” takings are for a “public use,” any taking is, and the Court has erased the Public Use Clause from our Constitution, as Justice O’Connor powerfully argues in dissent. Ante, at 1—2, 8—13. I do not believe that this Court can eliminate liberties expressly enumerated in the Constitution and therefore join her dissenting opinion. Regrettably, however, the Court’s error runs deeper than this. 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.

Thomas continues:

The consequences of today’s decision are not difficult to predict, and promise to be harmful. So-called “urban renewal” programs provide some compensation for the properties they take, but no compensation is possible for the subjective value of these lands to the individuals displaced and the indignity inflicted by uprooting them from their homes. Allowing the government to take property solely for public purposes is bad enough, but extending the concept of public purpose to encompass any economically beneficial goal guarantees that these losses will fall disproportionately on poor communities. Those communities are not only systematically less likely to put their lands to the highest and best social use, but are also the least politically powerful. If ever there were justification for intrusive judicial review of constitutional provisions that protect “discrete and insular minorities,” United States v. Carolene Products Co., 304 U.S. 144, 152, n. 4 (1938), surely that principle would apply with great force to the powerless groups and individuals the Public Use Clause protects. The deferential standard this Court has adopted for the Public Use Clause is therefore deeply perverse. It encourages “those citizens with disproportionate influence and power in the political process, including large corporations and development firms” to victimize the weak. Ante, at 11 (O’Connor, J., dissenting).

Justice O'Connor also hits on the perversity of the majority's ruling:

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. “[T]hat alone is a just government,” wrote James Madison, “which impartially secures to every man, whatever is his own.” For the National Gazette, Property, (Mar. 29, 1792), reprinted in 14 Papers of James Madison 266 (R. Rutland et al. eds. 1983).

In response to the decision, Scott Bullock, the attorney from the Institute for Justice who argued for the oppressed homeowners in oral arguments before the Supreme Court, said:

"The Court simply got the law wrong today, and our Constitution and country will suffer as a result. With today’s ruling, the poor and middle class will be most vulnerable to eminent domain abuse by government and its corporate allies. The 5-4 split and the nearly equal division among state supreme courts shows just how divided the courts really are. This will not be the last word."

Dana Berliner, another senior attorney who specializes in the rights of property owners with the Institute for Justice, said:

"It’s a dark day for American homeowners. While most constitutional decisions affect a small number of people, this decision undermines the rights of every American, except the most politically connected. Every home, small business, or church would produce more taxes as a shopping center or office building. And according to the Court, that’s a good enough reason for eminent domain."

Now the battle for private propery rights moves to the ballot box. We must be sure that those elected to public office, especially to city councils, county boards of supervisors, and similar local bodies, reject the idea of using eminent domain for private development purposes. State governments must add protection of property rights explicitly into their constitutions and statute law. Until then, the individual right of private property remains at risk for every American.