Freedom's Fidelity

Friday, June 24, 2005

Bad News for Fundamental Rights

It wouldn't be an exaggeration to say that the Supreme Court's decision in Kelo v New London horrifies me. What the hell was Kennedy thinking? This is a huge blow to property rights in America. I wrote about this case back in February:

...The second question, and this is really the crux of the case, is what constitutes a 'public use.' Historically 'public use' was reserved for projects like roads, bridges, railroad tracks, schools, etc. Over time, however the definition expanded, culminating with the landmark case in 1981 of Poletown Neighborhood Council v. The City of Detroit where the government essentially took the whole town (churches and all) in order to turn the land over to General Motors for a new plant. With GM threatening to leave Detroit if the land for the new plant was not appropriated, the court essentially held that a private entity's pursuit of profit did in fact fall under the umbrella of 'public use' because that entity's profit maximizing abilities contributed to the general health of the economy as well as the government's tax base. Over the next several decades, this precedent was used to seize private property nationwide. Though it was finally struck down this past August by the Michigan Supreme Court, the real test lies in the parameters that the U.S. Supreme Court sets in Kelo vs City of New London.

The City of New London is looking to the U.S. Supreme Court to definitively widen the scope of eminent domain. If the court agrees, and 'public use' is re-defined in such a broad sense, it's hard to imagine what would not fall under the government's right of eminent domain. After all, one would only have to make the speculative argument that confiscation and redevelopment would make the public richer, by making the tax base larger. It's not too difficult to make a case that almost anything would bring in more revenue to a city than a particular private residence. Could low cost housing in a gentrifying neighborhood be forcibly confiscated and replaced with mansions? Could an Arby's be forcibly demolished to put in a 5 star restaurant if the government so desired? Is it so difficult to imagine a bribery scenario where the government threatens to replace an existing business with one that will pay more taxes? The 'public use' economic argument applies in all of these scenarios.

Apparently, 'public use' has been redefined by the Supreme Court to mean roughly "anything that might be useful to someone somewhere even at the cost of someone else." I've been trying to think of a polite articulate way to say that the Supreme Court sucks this term and I just can't come up with one. This is very very depressing and the political consequences will be far reaching. There is a lot of negative reaction, from both the left and the right, around the blogosphere.

David Bernstein articulates my thoughts on this Supreme Court pretty well:

But consider the lineup in Raich and Kelo. Then consider the legal gymnastics it takes to consider local medical pot part of "interstate commerce," and to consider taking people's home and giving them to Pfizer a "public use" in the face of two hundred years of precedent that A to B transfers are illegitimate;

Damnit! This is not the way I wanted to start my weekend, I may post more on this later. Or I might just enjoy a beverage and the sweltering 100 degree days we're going to have here in Chicago and watch the Cubs vs Sox series... then go to the gay pride parade on Sunday which is endlessly amusing. If you want more commentary, InstaPundit has a good collection of links that of course lead to more and more links.

LATER: InstaPundit posts this email he got from a reader and calls it funny:

This ruling leaves open the possibility that the City of Detroit can take away the factories of General Motors (who knows how to lose money) and award them to Toyota (who knows how to make money). Given GM's woefull book value, the factories could be had for literally a steal, and the tax revenues would be immense.

Funny because it's true, but it's also scary for the same reason.

posted by Paul  permalink | |