Friday, June 24, 2005


Kelo v. City of New London

I have seen some bloggers, and commenters, trying to cast this abomination as a victory for “states’ rights”.


It has long been established that the Bill of Rights applies, in toto, to the states. It is therefore the absolute duty of the federal courts, and in particular the Supreme Court of the United States, to defend the liberties guaranteed by the Bill of Rights against incursion by state government.

The relevant language is found in the Fifth Amendment: “…nor shall private property be taken for public use, without just compensation.”

The five generally more liberal members of the Supreme Court have accepted a definition of “public use” which is actually “public benefit”, i.e. private property which will generate more taxes for the government, jobs for the community, etc. This definition is clearly much more broad than “public use”, i.e., a school building, courthouse, etc., which is available for, and exists for the purpose of, use by the general public. Eminent domain law has been drifting in this direction, and many had hoped the Supreme Court would put an end to that drift.

To try to cast this as a “states’ rights” question is to pervert the nature of the controversy, and to implicitly admit that the states have the right to do what the Fifth Amendment prohibits: take private property for a private use which provides some attenuated benefit to the public. (Whether increasing the tax revenues to government is in fact a “benefit” to the public is another question entirely).

The five generally more liberal justices of the Supreme Court have done exactly what I said in yesterday’s post, and there is no other fair characterization for it: they have authorized state and local government to allow one private citizen to forcibly take the property of another private citizen, with the force being supplied by the government itself. And the justification is that the government stands to benefit by collecting more tax money. The interest of the “collective good”, as represented by the government, outweighs the interest of the individual in the private property which he owns.

This is the schoolyard bully standing by menacingly while his toady collects the second-graders’ milk money, and then taking his cut for providing the muscle.

Let's say we own some acreage, with our house sitting at the front. We have a large open field behind our back yard, and it is wooded behind that. We have left the bulk of the property “undeveloped” on purpose. We like it that way. We like the trees and the birds and all the little wild critters that call the field and the woods home. But a developer could very easily put four to six houses with nice sized lots on our property. Which would generate four to six times the tax revenue for the government.

The Supreme Court ruling in effect means that if the local government wants that additional tax revenue, we have no choice but to sell to the developer. We can not refuse to sell. We can not hold out for a better price (like maybe, what we would get if we cut up the parcel into postage stamp lots and sold six of them ourselves). Because if we don’t sell, the government will forcibly take our land and give it to the developer, and we will get what he was willing to pay.

That is not a victory for “states’ rights”. It is a victory for government power over the individual’s property rights. It is a victory for wealthy developers and big development companies over middle and lower income home owners, because it’s a cinch nobody is going to be seizing a bunch of upscale homes of the wealthy in order to build a Starbuck’s.

This is a crushing blow to the ancient roots of Anglo-American property rights, to one of the fundamental principles upon which our law, and our nation, was based.
Consider this explanation of personal property rights by William Pitt, the British prime minister in the late 1700s and early 1800s:

"The poorest man may in his cottage bid defiance to all the forces of the Crown. It may be frail. Its roof may shake, the wind may blow through it - the storm may enter, the rain may enter, but the King of England cannot enter; all his forces dare not cross the threshold of the ruined tenement."

It may still be that the King of England cannot enter your cottage, but as of yesterday, the city council can force you to sell it to a guy who wants to build a pizza shop.

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