Tuesday, June 28, 2005


Okay, here it is, a day late but hopefully not a dollar short.

First, the dry summation:

In a 5-4 decision, the court upheld the ability of New London, Connecticut, to seize people's homes to make way for an office, residential and retail complex supporting a new $300 million research facility of the Pfizer pharmaceutical company. The city had argued that the project served a public use within the meaning of the Takings Clause of the Fifth Amendment to the Constitution because it would increase tax revenues, create jobs and improve the local economy.

A group of homeowners in New London's Fort Trumbull area had fought the city's attempt to impose eminent domain, arguing that their property could be seized only to serve a clear public use such as building roads or schools or to eliminate blight. The homeowners, some of whom had lived in their house for decades, also argued that the public would benefit from the proposed project only if it turned out to be successful, making the "public use" requirement subject to the eventual performance of the private business venture.

And the group of homeowners were right, of course. As the good Cap'n put it...

This does a tremendous injustice to the property owners of New London and everywhere in the United States. This puts the entire notion of property rights into jeopardy. Now cities can literally force people off their land in order to simply increase their tax base, which is all that New London accomplished in this smelly manuever.
The gents at Powerline - who are, after all, lawyers - expressed no astonishment at this ruling, saying that it was, in fact, a long time coming:

The Court's decision is disappointing, but hardly surprising. Indeed, if you are the least bit surprised by the decision, I would suggest that you haven't been paying attention. As Justice Thomas makes clear in his brilliant dissent, the Court's decision is simply the incremental extension of its wayward "public use" jurisprudence.

Takings similar to New London's have occurred for years all over the United States. In 2000, for example, the property of a profitable car dealership in Richfield, Minnesota was condemned by the city on precisely the same grounds as the plaintiffs' homes in Kelo and given to Best Buy for the construction of its corporate headquarters. The Minnesota Supreme Court split 3-3 and thereby affirmed lower court rulings sustaining the public use prong of the takings requirement. For the past hundred years the Supreme Court's case law has taken an extremely broad and ahistorical reading of the public use component of the takings clause.

However, TKS's Jim Geraghty - who, aside from being a dead ringer for Sportsradio KJR's Steve Sandmeyer, is not an attorney in the slightest - grasps how Kelo is a crystalization point for the judicial imperialism issue:

Folks, this Supreme Court decision is as mind-blowing as anything I've seen on the political arena in a while. I was on NRANews via phone a little while back (sorry for the lack of heads up) and the second-amendment crowd has always been very interested in property rights and individual rights. Well, Cam and company are fired up about this — maybe the most since last year's election. I think this decision is going to be a political earthquake, since the blogstorm is already building.

This is a huge political opportunity to the figure, Republican or Democrat, who grasps its power to homeowners (or even renters who want to own a home someday) and who leads the fight to overturn this, by Constitutional amendment if necessary.

Which is, of course, pointless, since that very same SCOTUS would simply "reinterpret" any such Amendment to suit its interventionist whims. In another post the same day, the aforementioned Mr. Morrissey hybridized the previous two angles:

Here are the echoes of protest and warning that have gone unheeded until, perhaps, we are too late to stop the worst of its damage.

Chief Justice Charles Evans Hughes, in 1916: “We are under a Constitution, but the Constitution is what judges say it is . . . .”

Chief Justice Harlan F. Stone, in 1936: “ . . . the only check upon our own exercise of power is our own sense of self-restraint.”

Justice Oliver Wendell Holmes, in 1930: “As the decisions now stand, I see hardly any limit but the sky to the invalidating of those rights if they happen to strike a majority of this Court as for any reason undesirable.”

Justice Robert H. Jackson, in 1953: “Rightly or wrongly, the belief is widely held by the practicing profession that this court no longer respects impersonal rules of law but is guided in these matters by personal impressions which from time to time may be shared by a majority of Justices. Whatever has been intended, this Court also has generated an impression in which much of the judiciary that regard for precedents and authorities is obsolete, that words no longer mean what they have always meant to the profession, that the law knows no fixed principles.”

Justice Felix Frankfurter, in 1949: “Because the powers exercised by this Court are inherently oligarchic, Jefferson all of his life thought of the Court as an ‘irresponsible body’ and ‘independent of the nation itself.’ The Court is not saved from being oligarchic because it professes to act in the service of humane ends. As history amply proves, the judiciary is prone to misconceive the public good by confounding private notions with constitutional requirements, and such misconceptions are not subject to legitimate displacement by the will of the people except at too slow a pace.”

Justice John M. Harlan, in 1970: “ . . . the federal judiciary, which by express constitutional provision is appointed for life, and therefore cannot be held responsible by the electorate, has no inherent general authority to establish the norms for the rest of society. It is limited to elaboration and application of the precepts ordained in the Constitution by the political representatives of the people. When the Court disregards the express intent and understanding of the Framers, it has invaded the realm of the political process to which the amending power is committed, and it has violated the constitutional structure which it is its highest duty to protect.”

As my reader writes, the high court has elevated itself to the point it is highly reminiscent of, "L'etat, c'est moi" ("I am the State!), the reply given by Louis XIV to his parliament when they dared to challenge his authority.

Echoes a commenter at Instapundit:

Some of the luster attached to dirt has been severely diminished for the small investor class. I've made a few dollars in real estate and now I'm going to have to look elsewhere. Having the capriciousness of government looming over my property takes all the safety out of the equation. On an even more serious note, the three pillars of prosperity for emerging nations are free markets, rule of law, and private property rights. We just got busted down to third world status. [emphasis added]

That ain't hyperbole, ladies and gents. Just take a gander at the aforelinked dissent of Justice Thomas, of which this is but one morsel:

The Court has elsewhere recognized “the overriding respect for the sanctity of the home that has been embedded in our traditions since the origins of the Republic,” … when the issue is only whether the government may search a home. Yet today the Court tells us that we are not to “second-guess the City’s considered judgments,”... when the issue is, instead, whether the government may take the infinitely more intrusive step of tearing down petitioners’ homes. Something has gone seriously awry with this Court’s interpretation of the Constitution. Though citizens are safe from the government in their homes, the homes themselves are not. [emphasis added]

This dissent has persuaded no less than Jude Wanniski that Thomas is the best choice the President could make for the next Chief Justice. For my take, I'm just glad my house is sufficiently out in the boonies that the developers will take another decade at least to build out this far.

Perhaps the best postscript to this latest exercise in quasi-crypto-communism was mentioned widely in the blogosphere today, but will be put into words by my email correspondent George Meredith:

Free Star Media, LLC

For Release Monday, June 27 to New Hampshire media
For Release Tuesday, June 28 to all other media

Weare, New Hampshire (PRWEB) Could a hotel be built on the land owned by Supreme Court Justice David H. Souter? A new ruling by the Supreme Court which was supported by Justice Souter himself itself might allow it. A private developer is seeking to use this very law to build a hotel on Souter's land.

Justice Souter's vote in the Kelo v. City of New London decision allows city governments to take land from one private owner and give it to another if the government will generate greater tax revenue or other economic benefits when the land is developed by the new owner.

On Monday June 27, Logan Darrow Clements, faxed a request to Chip Meany, the code enforcement officer of the Towne of Weare, New Hampshire, seeking to start the application process to build a hotel on 34 Cilley Hill Road. This is the present location of Mr. Souter's home.

Clements, CEO of Freestar Media, LLC, points out that the City of Weare will certainly gain greater tax revenue and economic benefits with a hotel on 34 Cilley Hill Road than allowing Mr. Souter to own the land.

The proposed development, called "The Lost Liberty Hotel" will feature the "Just Desserts Café" and include a museum, open to the public, featuring a permanent exhibit on the loss of freedom in America. Instead of a Gideon's Bible each guest will receive a free copy of Ayn Rand's novel Atlas Shrugged.

Clements indicated that the hotel must be built on this particular piece of land because it is a unique site being the home of someone largely responsible for destroying property rights for all Americans.

"This is not a prank" said Clements, "The Towne of Weare has five people on the Board of Selectmen. If three of them vote to use the power of eminent domain to take this land from Mr. Souter we can begin our hotel development."

Clements' plan is to raise investment capital from wealthy pro-liberty investors and draw up architectural plans. These plans would then be used to raise investment capital for the project. Clements hopes that regular customers of the hotel might include supporters of the Institute For Justice and participants in the Free State Project among others.

# # #

Logan Darrow Clements
Freestar Media, LLC

Breyer's, Kennedy's, Stevens', and Ginsburg's domiciles should all be next. After all, there's more than one strain of justice, and the poetic variety is one most Americans, including this one, never get tired of.

UPDATE: A Cornerite (Mark Noonan didn't say which one) had what may be an even better suggestion.

The quickest way to reverse Kelo is to find some conservative town in Utah somewhere to shut down an abortion clinic in order to make room for a Wal-Mart.

It is, when all is said and done, still all about just exactly whose ox is the one getting gored. As long as libs are the ones benefitting from this brand of soft fascism (via, they hope, enhanced tax revenue) and their victims are "little people" who can't fight back (and whom they still claim to represent!), Utopia is a wonderful thing. From the business end of it (hint: often requires generous amounts of lubricant...), the view is quite a bit different.

The aforementioned Mr. Geraghty has a prediction about that:

This will get reversed, either through constitutional amendment or through another case when the court's ideological makeup has changed. But in the meantime, I think you will see this leading to violence, when people are being involuntarily forced from their homes. It happens even in the best of circumstances when there's a clear public good like a road or a dam... Citizens will resist violently when they're getting forced out for an office park, a parking garage, a Starbucks...

As with everything else in this media-dominated age, it's all about publicity. And thanks to the Kelo decision, the good guy side of the judicial nomination issue just may have gained enough to overcome John McCain's "Memo of Understanding" sellout.

Let "Remember Kelo!" be the right's battle cry in the SCOTUS wars to come.

And keep the bulldozers on hot standby - and aimed at Olympus.