Tony DiPasquale
June 23, 2005
(my highlights)
Well, if there was ever a time to begin
impeachment proceedings upon justices, now would be that time. Today, the Supreme Court of the United States effectively discarded our fundamental right to private property. Gone are the days when you could feel safe and secure in home.
I have been talking with people about
Kelo v. New London for some time now, with the fear that the decision reached today would be the ultimate outcome, and I must say some of the responses I received were troubling at the least. 2005 U.S. LEXIS 5011 (U.S., 2005) One woman I spoke with said that it was necessary to improve the economy in certain areas. Another, this one a middle-aged man, said that we cannot allow a few property owners to derail programs for the common good.
For the common good? Now let me see, where have I heard that phrase before? Oh yeah, Karl Marx. (with a small mention to our beloved Senator Hillary Clinton who also made that quip when speaking against recent tax cuts).
Still, I wondered how it was that Justices of the Supreme Court, five to be exact, could rationalize that taking of private property in order to spur economic growth or increase tax revenues could be considered a "public use" under the public use clause of the Fifth Amendment to the U.S. Constitution.
Luckily Justice Stevens, writing the majority opinion for the Court, clarified the rationale behind this decision when he wrote that:
"Not only was "use by the public" test too difficult to administer, but it proved to be impractical given the diverse and always evolving needs of society." Id. at 17.
Yep that about sums it up, Stevens seems to think that the Constitution is just to hard too constantly abide by, plus it should be a
"living, breathing document" capable of dealing with changes in a society. Hmmm. Tell me again why the Framers gave us an amendment process? What happens if the First Amendment becomes too difficult to administer? Or that's right Congress just passes McCain- Feingold.
Now in Justice Stevens defense, and I mean this tongue in cheek, he did state that property could not be taken from a private individual solely for the benefit of another private individual. Id. at 14. How comforting to know that Justice Stevens believes that there should be some constraints, but will there really be? What happens down the line when a wealthy individual desires someone's quaint little cottage on the water's edge? If he promises to raze the cottage and build a magnificent house would it be safe to assume that he would end up paying more in taxes, a condition that apparently satisfies the new and improved "public use" clause?
Well perhaps that last example is too unusual too worry about, but I bet Wilhelmina Dery would share my concern.
For those unfamiliar with the case, Wilhelmina is one of the victims of this decision. Wilhelmina was born in one of the houses back in 1918 and has lived there her entire life, even after being married over 60 years ago. Id. at 11. Oh, did I mention that some of these houses have a beautiful waterfront view?
Apparently the dissenting parties in this case, which I might add this was a close 5-4 decision, share my concerns. In what appears to be an expression of shock with her fellow Justices,
Justice O'Connor quipped, "...all private property is now vulnerable to being taken and transferred to another private owner, so long as it might be upgraded." Id. at 45. I guess I am not the only one who sees the possibility for blatant corruption that this new ruling allows.
Heaven forbid that you live in a small town and do not get along with those on the town council. Worse yet, what happens if you are a businessman living in that town and your primary competitor is close friends with members of the town board? Of course no politicians would ever do something as low as using eminent domain to eliminate competition, would they?
Justice Thomas, also dissenting, remarked on the evolution of "public use" from what the Framers had intended to the lower threshold of "public necessity" or "public purpose" now embodied by our current court. Id. at 65. At one time, in order for the government to take your property an actual public use had to be derived such as a road, school, or other instance that the public itself would actually use. The new meaning is so vague that it can encompass virtually any reason to take the property of another. Or as
Justice Thomas puts it:
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." Id. at 66.
If ever a time arose that called for action from the people of this country, this is it. We certainly cannot rely on the politicians who are more concerned with poll numbers than actually being leaders. A leader would speak out against this decision and remark that the Supreme Court is but an equal branch of government and thus has no power over the others. In other words, the Supreme Court decision here should be ignored, just as Plessy v. Ferguson should have been.
Now, a nation watches in fear each time a Wal-Mart, developer, or similar business decides to come to town. With this decision why should any business go through the expense and time of actually negotiating with homeowners to buy their land, especially when they will likely have to pay a premium for it.
Instead, these businesses can simply march over to the politicians and have them do their dirty work, and likely pay less for the property than if they had to negotiate fairly. Thankfully, we can be assured that none of these politicians will succumb to possible promises of campaign donations.
http://www.renewamerica.us/columns/dipasquale/050623
