Dumb Supreme Court Decisions I Have Known...

Nobody, and I mean nobody, I know, is happy about the Supreme Court's decision last Thursday in Kelo v. City of New London. Now, this blog isn't going to get into obscure legalese, but I will, occasionally, lapse into some more formalistic language (call it the fallen legal assistant and the unfulfilled litigator in me).

For the uninitiated, Kelo was a fairly simple case: The city of New London, Connecticut was trying to ensure the Pfizer was going to come to town to build a new plant on land that had been vacated by the Department of Defense - and as part of that deal, it was going to convert some non-DOD lands (ie, private lands) from private ownership through the power of eminent domain. As you can imagine, those people who were living on that land didn't want their houses turned into a pharmaceutical plant. So they challenged the city's power to do this.

The power of eminent domain is also rather simple to understand: we, as a people, cede some measure of our rights to the government in the form of powers (government doesn't have rights, government has powers. This is a basic principle that I will repeat over and over and over again on the liberty blog. Understand that principle, and a lot of other things fall into place. Government doesn't have rights). Among the powers that we cede to the government is the power to take private property for public use, provided that two things happen:

1) That due process is accorded to the private property owner; and
2) That "just compensation" is paid to the property owner. "Just compensation" is generally defined as "what a willing buyer would pay to a willing seller".

Kelo, however, hinged on the issue of "public use". As originally envisioned, "public use" meant things like roads and public buildings - things that the general public would use. Obviously, if we were going to have government, that government would need land for public buildings, and since the government had no land to begin with, it needed the power to acquire that land.

Somewhere between then and now, however, that definition changed. It started in the 19th Century, when private companies that provided utilities needed to acquire lots of land for things like railroad lines, gas lines, power lines, etc. Because there was a "public benefit", the power of condemnation was used by government to transfer these lands from private hands into the hands of these utilities.

Then in the early 20th Century, as the great progressive reformist movements coalesced into a tremendous force, "public benefit" was expanded to include the clearing of "blighted" lands (read "slums") to make way for more acceptable land uses - and thus the slope was made even more steep and slippery. The Supreme Court, asked to rule on this new and interesting interpretation of "public use," upheld it (as one can imagine, given the mischief the High Court was engaging in at the time).

And so it was that municipalities, eager to increase tax bases and revenues, began looking at their older and less prosperous neighborhoods as potential cash cows. After all, the standard now was "public benefit", and one measure of that public benefit was an increase in jobs and an increase in tax revenues for the municipality at issue.

The Institute for Justice (http://www.ij.org), a fantastic organization based here in DC and dedicated to the idea that government ought to get out of the business of interfering with legitimate and law-abiding entrepreneurs who simply want to eke out a living (you'll learn more about this "Merry Band of Litigators" in the coming months), decided to take on this issue. In addition to charting some 10,000 instances of such abusive behavior on the part of governments, IJ led the cause against the City of Lakewood, Ohio, which had decided to classify a neighborhood of quaint cottages as "blighted" in order to make way for a new development.

IJ fought, toughly. Even when it was pointed out to the mayor, who had been leading the charge to exchange Lakewood's established residents for some newer, flashier models (like one would trade in an old but reliable car), that her own home would fall under the city's definition of "blighted", she refused to relent. It was finally up to the residents of Lakewood themselves, who stood foursquare against this outrage and refused to allow their fellow citizens to be cast out of their homes.

IJ won there. They won with real people who understood just what was at stake. But with the five justices of the United States Supreme Court who stood in the majority in Kelo, people who apparently have no concept of what it's like to have ties to one's home, IJ couldn't prevail.

Everyone gets this. Republicans get that it's wrong for government to take private property willy nilly. Democrats get that people ought to be able to stay in their own homes. Small business owners get that big businesses shouldn't be able to use the blunt tool of government to their own ends. Environmentalists get that government shouldn't be trading established neighborhoods for more sprawl.

This is America for pete's sake! In America, we don't make an 87 year old woman move out of the home she was born in simply because Pfizer wants to put a plant on it. In fact, that smacks of the policies on a certain "evil empire" that the United States spent nearly three quarters of a century working diligently to see disappear from the face of the Earth.

People understand that you might have to give up your property for a new road or for a school. They might not be happy about it, but they understand it. But Americans do not and ought not to stand for the government taking someone's house in order to hand it over to someone else for their private benefit, regardless of the jobs or money it might bring to the community.