Slouching Towards Despotism

SCOTUSblog reports on today's oral arguments before the Supreme Court in the case of Kelo vs. City of New London. For some background, the Kelo case is about the abuse of eminent domain law, where the government takes property from individual citizens. I've covered several cases of eminent domain abuse, but this one's a doozy. CNN's Money site has a good background story on the case.

Wilhelmina Dery, 87, was born in her century-old house near the Thames River.

Her son, Matt, and daughter-in-law, Suzanne, live next door with their teenage son, Andrew. Among their most precious possessions: the garden planted by Matt's grandmother, and the kitchen doorway where they've charted Andrew's height over the years.

The Derys' neighbors have their own, similar stories.

Bill Von Winkle bought his first building in the neighborhood 20 years ago, and went to work making sandwiches in the downstairs deli and renovating the upstairs apartments.

Susette Kelo meticulously restored her small pink Victorian house.

So when the New London Economic Development Corporation, a non-profit organization appointed by the city, approached about 70 property owners in Fort Trumbull about selling their homes to make space for a luxury hotel, condominiums and office space, these and a handful of other owners declined.

Their property, they said, is not for sale.

In November 2000, however, the city invoked eminent domain – a government right to seize property for public use – and sent out condemnation notices to owners refusing to sell. The city planned to pay the owners fair market value, take possession of the buildings and tear them down.

According to Daniel Krisch, one of the attorney's representing New London and its economic development arm, the city had several good reasons for razing the well-kept middle class neighborhood to replace it with a new, private development.

Krisch contends that the new development would create jobs, boost tax revenue, improve the city's infrastructure and provide public access to the river. It's for the benefit of the entire community, he said.

(Emphasis mine.) Read the whole thing.

At issue is the Fifth Amendment's takings clause:

No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a grand jury, except in cases arising in the land or naval forces, or in the militia, when in actual service in time of war or public danger; nor shall any person be subject for the same offense 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.

But in this case, it isn't being taken "for public use." It's being taken from one private party, and it's being given (or sold) to another private party on the grounds that "boosting tax revenue" constitutes "public use." No it doesn't. It constitutes enriching the government coffers.

As you can imagine, I consider this to be an extreme abuse of the Constitution. In the parlance of "slippery slopes," eminent domain was first abused back in the 50's when "urban renewal" was big. The case of Berman v. Parker was the first suit. It challenged the The District of Columbia Redevelopment Act of 1945. The Supreme Court found:

The District of Columbia Redevelopment Act of 1945 is constitutional, as applied to the taking of appellants' building and land (used solely for commercial purposes) under the power of eminent domain, pursuant to a comprehensive plan prepared by an administrative agency for the redevelopment of a large area of the District of Columbia so as to eliminate and prevent slum and substandard housing conditions - even though such property may later be sold or leased to other private interests subject to conditions designed to accomplish these purposes.

(a) The power of Congress over the District of Columbia includes all the legislative powers which a state may exercise over its affairs.

(b) Subject to specific constitutional limitations, the legislature, not the judiciary, is the main guardian of the public needs to be served by social legislation enacted in the exercise of the police power; and this principle admits of no exception merely because the power of eminent domain is involved.

(c) This Court does not sit to determine whether or not a particular housing project is desirable.

(d) If Congress decides that the Nation's Capital shall be beautiful as well as sanitary, there is nothing in the Fifth Amendment that stands in the way.

(e) Once the object is within the authority of Congress, the right to realize it through the exercise of eminent domain is clear.

(f) Once the public purpose has been established, the means of executing the project are for Congress and Congress alone to determine.

(g) This Court cannot say that public ownership is the sole method of promoting the public purposes of a community redevelopment project; and it is not beyond the power of Congress to utilize an agency of private enterprise for this purpose or to authorize the taking of private property and its resale or lease to the same or other private parties as part of such a project.

(h) It is not beyond the power of Congress or its authorized agencies to attack the problem of the blighted parts of the community on an area rather than on a structure-by-structure basis. Redevelopment of an entire area under a balanced integrated plan so as to include not only new homes but also schools, churches, parks, streets, and shopping centers is plainly relevant to the maintenance of the desired housing standards and therefore within congressional power.

(i) The standards contained in the Act are sufficiently definite to sustain the delegation of authority to administrative agencies to execute the plan to eliminate not only slums but also the blighted areas that tend to produce slums.

(j) Once the public purpose is established, the amount and character of the land to be taken for the project and the need for a particular tract to complete the integrated plan rests in the discretion of the legislature.

(k) If the Redevelopment Agency considers it necessary in carrying out a redevelopment project to take full title to the land, as distinguished from the objectionable buildings located thereon, it may do so.

(l) The rights of these property owners are satisfied when they receive the just compensation which the Fifth Amendment exacts as the price of the taking.

Note the repeated reference to "slums" and "blighted areas." The justification for the land-grab was "urban renewal" - the elimination of slums and "blighted areas" which was a public good, but not necessarily public use. And this decision justified selling property taken under eminent domain to other private parties.

Yet the Fifth Amendment is pretty explicit in its call for "public use."

This decision was followed by Hawaii Housing Authority v. Midkiff in 1984, in which the State of Hawaii used eminent domain to take large lots of land from their private owners, then break up those lots and sell the pieces to the tenants living on them. But because the original owner got "just compensation," this theft was made legal.

First step down the slippery slope: "Urban renewal of blighted areas and slums" as justification.

Second step down the slippery slope: "Fair redistribution" as justification.

Third step down the slippery slope: "Boosting tax revenue" as justification.

SCOTUSblog reports:

Marty (Lederman) reports that, based on the impression left by the oral arguments, the government-side is going to win today's property rights cases overwhelmingly.

In Kelo, the plaintiffs may get as many as three votes: Scalia; Thomas (who did not ask any questions); and Rehnquist (who was not there). But it was clear to O'Connor and Kennedy that the Court would have to overrule Midkiff and Berman to rule for the plaintiffs, an approach for which there was no majority. The only possible silver lining for property-rights advocates was that Justices Kennedy, Souter, O'Connor and Breyer all expressed concern that the traditional measures of just compensation under the Fifth Amendment may be subject to reconsideration. Justice Kennedy acknowledged the question wasn't presented in Kelo, but the Court's opinion or a concurrence may raise the issue, opening a new avenue of property-rights litigation.

In Lingle, it appears that the government will win unanimously. As Justice Scalia put it at argument, the Court may have to "eat crow" and abandon the suggestion it has made in several cases that there is a "substantially advances" test for what constitutes a taking.

(Lingle refers to Lingle, Linda (Hawaii Gov.), et al. v. Chevron U.S.A. Inc., which is being heard simultaneously.)

Professor Bainbridge comments on the case, quoting The Economist:

Put simply, cities cannot take someone's house just because they think they can make better use of it. Otherwise, argues Scott Bullock, Mrs Kelo's lawyer, you end up destroying private property rights altogether. For if the sole yardstick is economic benefit, any house can be replaced at any time by a business or shop (because they usually produce more tax revenues). Moreover, if city governments can seize private property by claiming a public benefit which they themselves determine, where do they stop? If they decide it is in the public interest to encourage locally-owned shops, what would prevent them compulsorily closing megastores, or vice versa? This is central planning.

That's exactly right. You and I can see that, but through the miracle (snort!) of stare decisis, SCOTUS appears to have backed itself into a corner where it cannot admit that fact, even if it wanted to - and my guess is that at least four if not more justices wouldn't want to anyway. They like central planning.

Re-read that excerpt from the Berman decision; "If Congress decides that the Nation's Capital shall be beautiful as well as sanitary, there is nothing in the Fifth Amendment that stands in the way." If that's not an endorsement of central planning, I don't know what it is.

Francis Porretto wrote last year in his piece No Law Abridging that when the Supreme Court upheld the McCain-Feingold Incumbent Protection Finance Reform Act:

(T)hen two days ago, the Supreme Court declared itself to be a lawless organ in service to a totalitarian State. The five Justices who voted to uphold the clearly unConstitutional McCain-Feingold Bipartisan Campaign Finance Reform Act placed their notions of “compelling government interest” and “the good of society” above the Supreme Law Of The Land, which for two centuries it has been the Court’s sworn duty to safeguard.

Let that thought sink in for a moment. Five Justices of the Supreme Court have abrogated the very contract from which their authority and responsibilities derive. There’s no room for hedging here. They didn’t just interpret an ambiguity in the Constitution in a way that, though novel, could be squared with the public meanings of words and the traditions of Constitutional law. They dropped the document in the mud and pissed on it.

Well, they've gone about it more slowly with this select portion of the 5^th Amendment, but they're about to unzip and let fly again, from all indications. I quoted Justice Scalia last year in This is NOT What I Wanted to Read:

It is literally true that the U.S. Supreme Court has entirely liberated itself from the text of the Constitution

--

We are free at last, free at last. There is no respect in which we are chained or bound by the text of the Constitution. All it takes is five hands.

He was not waxing enthusiastic about the idea.

Francis also said this:

A man is not free because he’s permitted to vote for his political masters. The subjects of the late, unlamented Soviet Union enjoyed that “right.” So did the subjects of Saddam Hussein.

A man is not free because some portion of his earnings is still his to spend on a variety of attractive goods. Not if the government can punish him for choosing goods it has not approved.

A man is not free because the long arm of the law has not yet descended on his neck. That’s more properly called a stay of execution.

A man is free if, and only if, he has the unchallenged right to do as he damned well pleases with his life, his property, and with any other responsible, consenting adult, provided only that he respects the equal freedom of all other men.

Yup. And it's pretty damned obvious that a man's right to do as he damned well pleases with his property no longer exists, either.

Back when I wrote The Courts Will Not Save Us series I quoted Rev. Donald Sensing from the same week as Francis Porretto's piece:

I predict that the Bush administration will be seen by freedom-wishing Americans a generation or two hence as the hinge on the cell door locking up our freedom. When my children are my age, they will not be free in any recognizably traditional American meaning of the word. I’d tell them to emigrate, but there’s nowhere left to go. I am left with nauseating near-conviction that I am a member of the last generation in the history of the world that is minimally truly free.

I'm not blaming Bush. This is the result of literally decades of bad decisions, that because of stare decisis the Courts simply will not correct as we go slouching towards despotism.

That Alexander Tytler quote is sounding more and more prophetic every day.

UPDATE 2/23: Eric at Classical Values posts on the topic too. Apparently he missed SCOTUSblog's report.

ALSO: Say Uncle has a raft of links, and has been covering eminent domain abuse for quite some time.