One week before the end of its term, the Supreme Court has handed down a decision, Kelo v. City of New London, which greatly weakened the protection of property rights explicitly recognized in the Constitution. At issue is the power of governments to confiscate homes and other real estate, and set a price deemed 'fair' — all without the owner's consent. With one or more vacancies on the Court looming, and with the prospect of bitter confirmation battles looming, the public may start thinking about property rights as part of our civil rights, and alter the terms of the debate over the "judicial mainstream."
On April 20,2000, Judge Janice Rogers Brown addressed the Federalist Society. As we consider yesterday's decision, it's worth our time to consider her thesis on that occasion:
"[T]he sheer tenacity of the collectivist impulse——whether you call it socialism or communism or altruism——has changed not only the meaning of our words, but the meanings of the Constitution and the character of our people."
She noted further, in this notable speech:
"Protection of property was a major casualty of the Revolution of 1937...The court drew a line between personal rights and property rights or economic interests, and applied two different constitutional tests. Rights were reordered and property acquired a second class status. If the right asserted was economic, the court held the Legislature could do anything it pleased. Judicial review for alleged constitutional infirmities under the due process clause was virtually nonexistent. On the other hand, if the right was personal and 'fundamental' review was intolerably strict."
In this world of post—1937 law, words have lost their meaning. Brown signaled this by quoting in her introductory remarks these words from the Procol Harum song "A Whiter Shade of Pale":
"If music be the food of love
then laughter is its queen
and likewise if behind is in front
then dirt in truth is clean...."
No clearer example of the changing of the clear words of the law can be found than you'll find in yesterday's decision in Kelo.
The Supreme Court ignored the clear words of the Constitution which states in the Fifth Amendment:
"nor shall private property be taken for public use without just compensation."
But we are talking about an economic right. So "behind is in front" and voila "public use" as if by magic, has been transformed into "public purpose." Once, taking was permitted only if the state had an important need for the property, such as a road or bridge which everyone needed, and the property owner was justly compensated. Today, your property can be taken if the local authorities determine there is a more economic use to be made of your property by somebody else — a developer, an employer, or a tax—generating company — and they need the extra tax money they will receive if somebody else gets your house. This enlargement of the state's power encourages not only fiscal profligacy but theft as well.
Theft? Didn't the Court say you should get "just compensation"? Think about it. Once the property is seized and given to another private party, you have no recourse if (a) the project is never undertaken or (b) the government miscalculated and the new use is not more economically valuable to the community. In fact, once property is transferred, in the absence of fraud or bad faith, there is no easy way apparent to get your property back, even if the new owner changes his mind, goes broke, or gets a better offer.
And what about the "just compensation" requirement? UCLA Law Professor Stephen Bainbridge explains why fair market value in Kelo "is a justly inadequate safeguard on government power".
"First, it fails to take into account the subjective valuations placed on the property by people whose families have lived on the land, in at least one case, for over a 100 years. In other words... the government will be able to seize land at a price considerably below the reservation price of the owners. Second, unlike the prototypical eminent domain case, in which the land is seized to build, say, a school or road, in this case the city is using eminent domain to seize property that will then be turned over to a private developer. If this new development increases the value of the property, all of that value will be captured by the new owner, rather than the forced sellers. As a result , the city will have made itself richer (through higher taxes) , and the developer richer, while leaving the forced sellers poorer in both subjective and objective senses."
Justice O'Connor observed that the poor will bear the burden of this decision.
"The beneficiaries are likely to be those citizens with disproportionate influence and power in the political process, including large corporations and development firms."
Lawyers familiar with property law matters know that Kelo merely a progression on the already—stretched boundaries of "public use." Our property rights have been second class civil rights for a long time. But the public which is less attentive seems genuinely shocked by reports of this case. (I invite you to cruise the web for left and right sites to see this.)
Even federalists, who normally believe that decisions on public welfare should be left to elected officials and not revisited anew by judges, should be leery of that standard here. For once we substitute "public purpose" for "public use," not reviewing the merits of the Kelo decision and the way it was reached will invite the complete vitiationof the Fifth Amendment's prohibition on the taking of private property.
Yes, the poor will be disproportionately affected, as O'Connor noted. But think of the other valuable community institutions which may be seized as well: houses of worship, schools, charitable institutions, even people who choose to eschew McMansions in areas of high land values.
Defenders of the case will argue that Kelo was a special case where there was extended public debate and fact finding before the community sought the taking, suggesting the Court will continue to demand this careful review to assure fairness in the taking.
I do not share their sanguine view of either local government or the punctiliousness of the courts in resolving property issues between small property owners on one hand and developers linked with municipalities on the other. In fact, were I writing the script for The Sopranos, the next episodes would have Tony buying up choice New Jersey homes with the assistance of local aldermen and the New Jersey Supreme Court. That particular body, readers may remember, found itself able to ignore the clear words of New Jersey law to allow Frank Lautenburg to substitute on the ballot for Robert Torricelli after the statutorily defined time for such substitutions had clearly expired. Tony could become a billionaire.
But the Court does leave open some recourse from this decision: the possibility of state legislation to forbid property being taken for "public purpose." Every reader who lives in a state which does not enjoy such protection should work for such a clear repudiation of the practice of forced taking of property for use by private interests.
In the meantime, it is anticipated that on Monday one of the Supreme Court judges will announce his/her resignation at the end of the term, and the battle for a confirmation of replacement will begin.
The Senate Democrats who held up the confirmation of Judge Brown to the US. Court of Appeals for the District of Columbia for two years, upon the opposition of leftwing groups like People for the American Way ( Norman Lear) who called her a "loose cannon" who "lacked the appropriate commitment to fundamental constitutional rights principles,' have offered the President a fool's deal. They want him to consult with them before nominating anyone. (Something about that offer reminds me of an email I got saying I'd won a foreign lottery and to claim it should prepay the vendor's ten percent which, of course, would be rebated upon receipt of the award, though I should keep the whole thing quiet to avoid confusion with other people claiming the same prize.)
My guess is that Justice Thomas, whose dissent most clearly challenges the majority opinion, and Judge Brown, whose views suggest she'd have joined him had she been on the Court, may fairly be regarded as champions of a view of property rights deeply cherished by Americans. The notion that a man's home is his castle, is deeply ingrained in the American psyche, as is the American dream of home ownership. They are mainstream in a way that makes intuitive sense to Main Street.
Let the debate about the juidicial mainstream begin. The detractors of Judge Brown and Justice Thomas — the volunteer "consultants" on the Presidential nominations — are in the lyrics of Harum which drew Judge Brown's attention , "skipp[ing] the light fandango."