Court Empowers the State to Help the Politically Powerful

“No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury…nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.” — Fifth Amendment to the US Constitution.

The Fifth Amendment to the US Constitution provides important rights to individuals against arbitrary action by the state. These zones of individual protection have generally grown wider over time. An important exception in this expansion is the “Takings Clause,” whose protections have dwindled over time. The Takings Clause of the Fifth Amendment basically requires two things: that private property seized by the state only be taken for “public use” and such taking needs to be accompanied by “just compensation.”

Typically this clause has been invoked when the state seizes land under eminent domain for public use as in a park, hospital, highway, or sewage treatment plant, where the public actually comes to own the land. In other cases, the court has permitted the transfer to a private entity when the land will be used for the broad public purpose of a “common carrier.” Principle examples include railroad and power line right-of-ways.

In its latest ruling in Kelo v. City of New London, by a slim 5-4 majority, the Court erased any residual protection against arbitrary state condemnation. Essentially the words of the Takings Clause have been changed from, “…nor shall private property be taken for public use, without just compensation” to “…nor shall a person be deprived of just compensation, when private property is taken at arbitrary public discretion.” One key requirement of the Takings Clause is thus removed.

Even Justice John Paul Stevens, writing for the majority, concedes that under the “public use” provision the state “may not take the property of A for the sole purpose of transferring it to private party B, even though A is paid just compensation.” Moreover, the Court concedes that the state may not cavalierly assert a public purpose as a pretext for a taking on behalf of a private entity. Nonetheless, the Court just made that very thing much easier to do.

Pfizer, a large and influential pharmaceutical company, is building a new research facility in New London, Connecticut in conjunction with a city redevelopment plan. By taking the land of the petitioners under eminent domain as part of the redevelopment plan, the city of New London asserts that the concept of “public use” is expansive enough to include the potential increase in jobs and government revenue when property is transferred from one private concern to another. The petitioner Susette Kelo and nine others involved in the suit are pushed out to make room for the economic development based on Pfizer’s new facility. The property of the petitioners was not blighted, just inconvenient. The Supreme Court in the Kelo opinion endorses the expansion of state power.

In her pointed dissent, Justice Sandra Day O’Conner argues that under the logic of the Court in this case, “The specter of condemnation hangs over all property. Nothing is to prevent the state from replacing any Motel 6 with a Ritz-Carlton, any home with a shopping mall, or any farm with a factory.” Moreover, private negotiations in transactions may be altered with the knowledge that a powerful company might be able to persuade a local government to take property under the auspices of an economic development plan.

In the majority opinion, Stevens argues that the state can be restrained from abuse of the takings powers by the political process. The people can vote out those leaders who use eminent domain excessively. However, if the political process were a sufficient and entirely reliable protection of individual rights, there would be no need for the Bill of Rights and little need for judicial review. Indeed, there are many times that the majority of a local area would be happy at the use of eminent domain against an unpopular land owner. Tyranny is tyranny, even if practiced by a majority. Indeed, it is precisely against potential public tyranny that the Bill of Rights was enacted.

The case should be especially illuminating for Liberals who devote excessive faith in the power of government for good. The Libertarian part of the Conservative soul realizes that while government power can be used for good, it will inevitably be applied in the service of the politically powerful. Big companies like Pfizer will likely always be able to persuade local governments of the public benefit pursuant to the use of eminent domain on the company’s behalf.

This is why even dependably groups Liberal groups like the National Association for the Advancement of Colored People (NAACP) actually sided with the land owners in this case. The NAACP recognizes that frequently it is the poorest and the least influential, oft times African-Americans, who bear the greatest burden of aggressive urban renewal and economic development. African-Americans have too often been exploited by local governments to be as sanguine as the Court about reliance on the wisdom of local governments unfettered by Constitutional restraints. It should not go unnoticed that it was the Conservative side of the Court with its devotion to an “original understanding” jurisprudence that is protecting the individual against the predations of activist governments acting on behalf of large moneyed interests.

Liberals have always been vocal about seeking Constitutional protections for privacy rights, but often fail to appreciate the intrinsic linkage between property rights and personal liberty. Freedom and ability to control our lives increases with increasing property. Without diminishing the value and ability of those without resources, who typically has a greater scope of action, one with resources or one without? Limiting property rights directly reduces personal freedom.

Fortunately, the victory against freedom represented by the Kelo decision was a narrow 5-4 one. If a more Conservative Supreme Court emerges during President Bush’s second term, despite inevitable Liberal Democratic opposition, perhaps this ravaged ground of freedom, strip-mined by recent Court decisions, can be reclaimed to a more pristine condition.

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