Monday, June 27, 2005

Kelo Decision

Whenever a Supreme Court case is decided I'm always as interested in hearing the thoughts on the subject from non-lawyers who read the opinions as I am from lawyers. I think attorneys become inured to the mind-bending logical gymnastics that are often necessary in our legal system to make fit all of the precedents, case law, legislation and constitutional requirements that make up the laws that we live by. This is not to say that we amateurs are more insightful or that the untrained are better equipped to analyze. I would no more want a plumber writing these opinions than I would want Antonin Scalia to come over to help me figure out how to deal with the problems I'm having with my claw-foot tub. Having said that, it's much more fun to see the reaction of the uninitiated to the gore of this particular sausage factory than it is of the butcher.

Jeff Harrell over at The Shape of Days is a great example of an amateur who has done what too few have; actually read the opinions and THEN started commenting. Seriously, go read it. He's a really bright guy, writes a hell of a lot better than I, and keeps you entertained to boot. Having said that, I still think that Jeff is wrong to side with Justice Stevens and the majority on the case. This is not to say that I think this is at odds with current precedent.

This is one of those crappy instances in which both sides are correct. Justice Stevens for the majority is correct when he points out that the Court has rejected the narrow interpretation of the public use requirement. But Justice O'Connor is correct when she argues that a broad interpretation of public use basically makes the requirement itself moot and opens the door to future abuses.

I hate to say it, but I have to come down on the side of the majority on this one. In this particular case, it seems clear to me that the city of New London is in desperate need of economic help, and that the purpose of the proposed development is to revitalize the local economy and get the city back on track. The city's intentions are sound, and that the abuses which Justice O'Connor fears are not a part of this case.

There may well be a case at some point in the future where a municipality wants to condemn a strip club and turn it into a Barnes & Noble, or some other clear abuse of the takings clause. In that case, I hope the Court will choose to part with precedent and enjoin cities from seizing private property just because they feel like it. If they don't, then we'll have something to get outraged about.

Both Jeff and Justice Stevens are absolutely correct that we did away with the standard long ago that eminent domain takings needed to serve a bona fide public use. It is the fact that this decision is such a baby step from what the law has been for a hundred years that I find most disturbing. It isn't that there may be future abuses of this doctrine to rob Peter to pay Paul, it's that this IS abuse. Assuming for the moment that the public does benefit from having localities reap larger tax revenues, is there any brake at all on a local government from taking anyone's property and giving it to someone who will use it "better" by producing more tax revenues?

In the majority opinion Justice Stevens writes that this brake is the localities and trial courts themselves. With the writing of this opinion, however, all a locality will have to show any future trial court is that the public will benefit by any proposed taking because the recipient of the seized property will generate a larger tax haul.

As for the first proposition, the City would no doubt be forbidden from taking petitioners' land for the purpose of conferring a private benefit on a particular private party. See Midkiff, 467 U. S., at 245 ("A purely private taking could not withstand the scrutiny of the public use requirement; it would serve no legitimate purpose of government and would thus be void"); Missouri Pacific R. Co. v. Nebraska, 164 U. S. 403 (1896).5 Nor would the City be allowed to take property under the mere pretext of a public purpose, when its actual purpose was to bestow a private benefit. The takings before us, however, would be executed pursuant to a "carefully considered" development plan. 268 Conn., at 54, 843 A. 2d, at 536. The
trial judge and all the members of the Supreme Court of Connecticut agreed that
there was no evidence of an illegitimate purpose in this case.

These are some of those logical gymnastics that I mentioned earlier. Taking someone's property to give to someone else because the government gets more tax revenue is alright so long as it's a "carefully considered development plan."

Finally, I wanted to write just a couple of words on the politics of the decision. For some reason liberals have been surprised that it was the left side of the court that was responsible for this decision. I don't understand this surprise at all. When you believe that it is the government's job to redistribute property and decide who gets what for the public good, why on Earth would you object to a constitutional doctrine that allows the government to do just that?

What I really like about the decision coming out now is how I hope it will affect the coming fight over any Supreme Court nominee thaofferederred in the next few months. I can't WAIT to see the commercials that the Club for Growth puts out:

"The Supreme Court recently ruled that the government has a right to take your home and give it to politically connected developers. We need a court that respects individual rights. Please call your Senators and tell them to support Judge Janice Rogers Brown for the Supreme Court."


Just saw the best comment yet on the Kelo decision from Pamela at Atlas Shrugs:

"But I'm sure glad that the Patriot Act was downsized. I feel so much safer knowing the government can't rifle through my library records. After the government seizes our homes we can at least enjoy anonymity at the library"