Yesterday's five to four Kelo decision by the Supreme Court, upholding the taking by the state of the private property of one for the private use of another, smacks of irony both dramatic and tragic.
One of the definitions given by Merriam—Webster for 'irony' is an
'incongruity between a situation developed in a drama and the accompanying words or actions that is understood by the audience but not by the characters in the play —— called also dramatic irony, tragic irony'
And for Justice Breyer, one of the majority in this decision, today must be doubly ironic. For yesterday, the AP reported that:
Rights groups showed a smuggled video Thursday of hundreds of thousands of poor Zimbabweans living in the open in the winter cold after the government tore down their homes in what it describes as an urban renewal project.
At news conferences in Africa and at the United Nations, more than 200 international human rights and civic groups said the campaign, known as Operation Drive Out Trash, was "a grave violation of international human rights law and a disturbing affront to human dignity."
Lest you think me unkind or unhinged, I'm often unsure which is worse, let me remind you that Justice Breyer has stated that the foreign courts, explicitly including those of Robert Mugabe's Zimbabwe, should serve as models for ours to emulate. For:
In a 1999 death penalty case, Breyer, citing judicial decisions from Jamaica, India, Zimbabwe, and the European Court of Human Rights said, 'A growing number of courts outside the United States ... have held that lengthy delay in administering a lawful death penalty renders ultimate execution inhuman, degrading, or unusually cruel.'
Apparently he may also consider the Zimbabwean view of property rights ripe for emulation. This I find somewhat astonishing, whether or not Justice Breyer consciously or unconsciously included thought of the Zimbabwean theory of takings in his deliberations. For according to the Freedom House report on the 'Worst of the Worst' violators of human rights:
Significantly, six of the eighteen most repressive governments——those of China, Cuba, Eritrea, Saudi Arabia, Sudan, and Zimbabwe——are members of the Commission on Human Rights (CHR), representing nearly 11 percent of the 53—member body.
According to Senator Durbin and some of his fellow members of that august body, we should be included on that list. This, perhaps, is Justice Breyer's reason for including Zimbabwe as one of his judicial references.
On the other hand — there always is one, isn't there? — Sandra Day O'Connor must be feeling a tad sheepish. For, as reported by the New York Times, she was on this occasion of an opinion differing from that of Justice Breyer:
In a bitter dissent, Justice Sandra Day O'Connor said the majority had created an ominous precedent. "The specter of condemnation hangs over all property," she wrote. "Nothing is to prevent the state from replacing any Motel 6 with a Ritz—Carlton, any home with a shopping mall, or any farm with a factory."
Which is interesting, for she has previously thrown in with Breyer regarding the usefulness — nay, necessity — of bringing the thoughts and decisions of foreign courts and law to bolster our sagging and inadequate Constitution. For in October of 2003 in a speech given in Atlanta,
. . .Justice Sandra Day O'Connor added fuel to the controversy over foreign precedents, predicting that 'over time we will rely increasingly, or take notice at least increasingly, of international and foreign courts in examining domestic issues.'
"The impressions we create in this world are important and they can leave their mark," O'Connor said in remarks quoted in the Atlanta Constitution. Looking to foreign precedents "may not only enrich our own country's decisions, I think it may create that all—important good impression."
Yes, we must certainly concern ourselves with that 'all—important good impression.' Unfortunately, her concern is regarding the opinion of those living and breathing in countries other than her own. A country whose Constitution she has solemnly sworn — or affirmed — to uphold. I find it less than comforting that she now finds it in her heart to have some concern for all those homes, Motel 6s, and family farms soon to be replaced by the speculative wishes of foreign and domestic gargantua.
The liberals and leftists on the Court may have just slit their own wrists along with those of the politicians who fastidiously protect judicial activism and eschew Constitutional originalism. Americans are justifiably proud and jealous of their property rights. Giving corporations a proxy power to run roughshod over those rights may be a tipping point in the public's perception of the Court as a defender of the individual against the power of the state.
For this may be a decision too far.