The USSC: Our Stumbling, Bumbling Problem

http://caselaw.lp.findlaw.com/cgi-bin/getcase.pl?court=US&navby=case&vol=000&invol=04-108
The talk of the ‘Net right now is the decision of the United States Supreme Court’s decision today regarding the case of Kelo v. New London, Connecticut. This was a monumental case—the likes of which has not struck this nation for a couple of years (Hamdi v. Rumsfeld-2002 and Lawrence v. Texas-2003). I cite both because they are "landmark" cases in nature and demeanor. The Kelo case is equally so.

"In 2000, the city of New London approved a development plan that, in the words of the Supreme Court of Connecticut, was "projected to create in excess of 1,000 jobs, to increase tax and other revenues, and to revitalize an economically distressed city, including its downtown and waterfront areas. In assembling the land needed for this project, the city's development agent has purchased property from willing sellers and proposes to use the power of eminent domain to acquire the remainder of the property from unwilling owners in exchange for just compensation. The question presented is whether the city's proposed disposition of this property qualifies as a "public use" within the meaning of the Takings Clause of the Fifth Amendment to the Constitution."

That is the opening paragraph of Justice Stevens decision today. Now, here is the question I have for Justice Stevens: Does the need for state revenues trump the private citizens right to own their property, and should they choose so, opt out of selling their land if someone does not give them "just compensation", as is enumerated under the Fifth Amendment to the US Constitution?

I would seriously answer "no". The right of the citizens to own property is explicitly intended and implied; this point is explained by the Framers in the Federalist Papers. It is reinforced, time and again in the Papers, especially in what is a protected right unto ourselves. If someone buys a home, invests their money and their time into it, then should someone wish to buy it, that someone must meet what they deem as just compensation.

Now, if at contention is what defines "just compensation", a simple assessment of the property—obviously including any structures on it—would provide the starting amount in terms of "just compensation". Reason being, no one can measure blood, sweat, and tears going into their work. What they did to maintain the home, to repair it, to maintain it’s general upkeep, and even possible extension. This is not an astronomical amount. This is not the jackpot.

If someone wanted to buy my house, and the assessment showed at least a $180,000 home, I would ask for nothing less than $200,000—depending on what I did to it. I’m not talking about asking for a cool million. "Within reason" would have been nicely defined here, but would not have been necessary had the ruled in favor of the Constitution rather than opposed to it.

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 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.

That’s the Fifth Amendment to the Constitution; the last phrases emphasis is mine. With their ruling today, the Court turned it’s back on the Constitution, and ruled that the "Takings Clause" of the Fifth Amendment doesn’t apply in this situation. The decision was a 5-4 decision with Kennedy, Souter, Ginsburg, Stevens, and Breyer believing that the State had the right to do this. For years, the States have had their hands cuffed when it came to decisions they rightfully should have won, but failed to do so. It should not be the role of the Court to balance out that puzzle by removing our guaranteed and enumerated right to own our own property.

And look at the defense against such intrusions to our rights.

Over two centuries ago, just after the Bill of Rights was ratified, Justice Chase wrote:

"An act of the Legislature (for I cannot call it a law) contrary to the great first principles of the social compact, cannot be considered a rightful exercise of legislative authority ... . A few instances will suffice to explain what I mean... . [A] law that takes property from A. and gives it to B: It is against all reason and justice, for a people to entrust a Legislature with such powers; and, therefore, it cannot be presumed that they have done it." Calder v. Bull, 3 Dall. 386, 388 (1798) (emphasis deleted).

Today the Court abandons this long-held, basic limitation on government power. Under the banner of economic development, all private property is now vulnerable to being taken and transferred to another private owner, so long as it might be upgraded--i.e., given to an owner who will use it in a way that the legislature deems more beneficial to the public--in the process. To reason, as the Court does, that the incidental public benefits resulting from the subsequent ordinary use of private property render economic development takings "for public use" is to wash out any distinction between private and public use of property--and thereby effectively to delete the words "for public use" from the Takings Clause of the Fifth Amendment. Accordingly I respectfully dissent.

I am not an O’Connor supporter. At times, I feel as though the honored justice is out to lunch, but on this issue she is dead-on like Annie Oakley. And make no mistake, the whole basis of this decision is money—for the states, as a whole. Is your property worth more than a resort? A factory? A casino? The answer, sadly, is not in the eyes of those in the State in question (this one being Connecticut) when it comes to their revenues. This is a direct seizure from one to another, and disregards the ideas of "just compensation". The State can deem that your property—if you decided not to sell to someone doing a development—is theirs, in favor of the revenues that development will garner the State’s coffers.

To save their homes, petitioners sued New London and the NLDC, to whom New London has delegated eminent domain power. Petitioners maintain that the Fifth Amendment prohibits the NLDC from condemning their properties for the sake of an economic development plan. Petitioners are not hold-outs; they do not seek increased compensation, and none is opposed to new development in the area. Theirs is an objection in principle: They claim that the NLDC's proposed use for their confiscated property is not a "public" one for purposes of the Fifth Amendment. While the government may take their homes to build a road or a railroad or to eliminate a property use that harms the public, say petitioners, it cannot take their property for the private use of other owners simply because the new owners may make more productive use of the property.

Again, Justice O’Connor is right on. The economic development of a home does not justify use under the Takings Clause of the Fifth Amendment. "For public use", as stated within the Takings Clause inherently means for "the public good". That means roads, bridges, firehouses, schools, freeways, etc. That was not a development that nets the State further revenues, but rather serves the public good. A development, no matter what it is, doesn’t necessarily serve the "public good". Granted, something that brought jobs to the community or the State could be argued to be in the "public good" for the State, and therefore justify the "taking" of the property. But again, "just compensation" is key to any seizure. It is ENUMERATED in the Fifth Amendment.

Long ago, William Blackstone wrote that "the law of the land ... postpone[s] even public necessity to the sacred and inviolable rights of private property." 1 Commentaries on the Laws of England 134-135 (1765) (hereinafter Blackstone). The Framers embodied that principle in the Constitution, allowing the government to take property not for "public necessity," but instead for "public use." Amdt. 5. Defying this understanding, the Court replaces the Public Use Clause with a " '[P]ublic [P]urpose' " Clause, ante, at 9-10 (or perhaps the "Diverse and Always Evolving Needs of Society" Clause, ante, at 8 (capitalization added)), a restriction that is satisfied, the Court instructs, so long as the purpose is "legitimate" and the means "not irrational," ante, at 17 (internal quotation marks omitted). This deferential shift in phraseology enables the Court to hold, against all common sense, that a costly urban-renewal project whose stated purpose is a vague promise of new jobs and increased tax revenue, but which is also suspiciously agreeable to the Pfizer Corporation, is for a "public use."

I sit corrected by the wisdom of Justice Thomas. The Fifth Amendment clearly states "for public use"; it can be defined no other way. He is correct in his assessment that the necessity for the seizure does not pass the "irrational" purpose of it. Pfizer need not build their plant there. Options, to my knowledge, have been given, but the State refuses to budge on this piece of property; this despite the fact that people already live there. Some people didn’t want to sell. Oh well. It is their choice; a right endowed to us by our Creator known as "Free Will". Isn’t it a b***h? Some people just cannot get their way, and Thus far, those in dissent have made a seriously compelling argument against the foolishness of the other five jurists.

It is the last of these liberties, the Takings Clause, that is at issue in this case. In my view, it is "imperative that the Court maintain absolute fidelity to" the Clause's express limit on the power of the government over the individual, no less than with every other liberty expressly enumerated in the Fifth Amendment or the Bill of Rights more generally. Shepard v. United States, 544 U. S.

Again, Justice Thomas cuts straight to the point. Where does the government’s power end? This was a check against such vault’s over our rights. The government can’t do it. Again, for years, the government has stopped the States in their varied capacities to govern their citizens. Now, they deem that the State is correct in it’s basic seizure of private property; all on the heels of supposed economic benefits. In this day and age, nothing is secure, and nothing is certain. That plant could be there a couple of years before being closed down. So, does the short-term goal outweigh the long-term goal? A homeowner paying property taxes would virtually guarantee the long term goal.

Chief Justice Rehnquist and Associate Justice Scalia didn’t add their thoughts to the dissent, but I am sure that they chose to due to the wisdom extended by their two colleagues. The Fifth Amendment is clear and explicit:

"...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."

What the Court decided today was that the Takings Clause of the Fifth Amendment (that’s the last phrase of it) doesn’t exist. POOF! It’s gone. "Public use" doesn’t seem to apply, and in the eyes of "just compensation", it doesn’t apply either. That’s not being facetious; that’s being factual. And it is sad that the Court can’t seem to uphold the very Constitution they swear to uphold and interpret properly.

And in interpreting, I turn to Justice Stevens, who wrote the decision himself, joined in concurrence by Justice Kennedy in a separate decision. Justice Stevens cited several—and I do mean more than five—cases where land was seized by the city or the state, for redevelopment, of a condemned area; one deemed beyond repair. Yet, the justice, in his opening words states clearly:

There is no allegation that any of these properties is blighted or otherwise in poor condition; rather, they were condemned only because they happen to be located in the development area.

So, where is the right of the State of Connecticut to step in, and take their land? It is not condemned, nor run-down, and it is not even considered a "blight", so where is the right, Justice Stevens? Why cite cases where the city or state had an interest in taking it to turn it around—"for public use"—and disregard it in the decision itself. The sole purpose of taking the land was for money—revenues to the state.

Accordingly, when this Court began applying the Fifth Amendment to the States at the close of the 19th century, it embraced the broader and more natural interpretation of public use as "public purpose." See, e.g., Fallbrook Irrigation Dist. v. Bradley, 164 U. S. 112, 158-164 (1896). Thus, in a case upholding a mining company's use of an aerial bucket line to transport ore over property it did not own, Justice Holmes' opinion for the Court stressed "the inadequacy of use by the general public as a universal test." Strickley v. Highland Boy Gold Mining Co., 200 U. S. 527, 531 (1906). We have repeatedly and consistently rejected that narrow test ever since.

But, even Bradley is tossed aside in this case. This isn’t the case involving where a rope line is, but rather people being displaced in favor of enhanced revenues—promised, proposed and not delivered on, as yet. And yet Stevens talks about how they have not touched on the narrow test universally touching on Bradley, he completely removes it from consideration with the logic involved in this case. The bucket line didn’t represent the significant income the state is looking to reap from the development Pfizer is proposing. It was but a bucket line.

Petitioners and their amici argue that any taking justified by the promotion of economic development must be treated by the courts as per se invalid, or at least presumptively invalid.

This comes from Justice Kennedy, and it seems to me that the people have more upstairs than the five judges that ruled against them.

Petitioners overstate the need for such a rule, however, by making the incorrect assumption that review under Berman and Midkiff imposes no meaningful judicial limits on the government's power to condemn any property it likes. A broad per se rule or a strong presumption of invalidity, furthermore, would prohibit a large number of government takings that have the purpose and expected effect of conferring substantial benefits on the public at large and so do not offend the Public Use Clause.

Kennedy adds this for clarification after the previous statement, and I’m still scratching my head over it. The limits fo the government—federal and state—have already been set in Court precedent, and it seems as though the Court today have overlooked them. And the "advantage" has never been about the "public at large" but rather their use, as was explicitly laid out in the Fifth Amendment. By shifting the "definition" of the phrase, the Court has allowed such a travesty to move forward; the travesty being that people unwilling to sell their property or move from it are being forced to do so.

The Fifth Amendment is the only thing that should have been looked at in this case. Nothing else. It says the government can’t do this if it isn’t for "public use". The development has limited public use "attractions"; it is mostly private. The benefit for the State of Connecticut is increased revenues; these are "promises" or "projections" at best, and not solid fact. The solid fact is that as long as people inhabit these homes, and maintain their upkeep, these homes will continue to generate revenues for the state in terms of taxes.

All too often, we go on promises, and ignore the realities, and in my opinion, the Court has done so today. It has taken the basic right of property ownership—a right our Founding Fathers laid their lives, honors, and fortunes on—and obliterated it. It has condoned the seizure of land for the greater revenue rather than "public use". It may serve the "public good" for a time, but that time is neither definite, nor infinite.

Publius II