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More On The Kelo Case
(Yesterday's Supreme Court ruling that local governments have "more or less unlimited authority to seize homes and businesses"), from the Wall Street Journal's Opinion page:

In his clarifying dissent, Justice Clarence Thomas exposes this logic for the government land grab that it is. He accuses the majority of replacing the Fifth Amendment's "Public Use Clause" with a very different "public purpose" test: "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.'"

And in a separate dissent, Justice Sandra Day O'Connor suggested that the use of this power in a reverse Robin Hood fashion--take from the poor, give to the rich--would become the norm, not the exception: "Any property may now be taken for the benefit of another private party, but the fallout from this decision will not be random. The beneficiaries are likely to be those citizens with disproportionate influence and power in the political process, including large corporations and development firms."

That prospect helps explain the unusual coalition supporting the property owners in the case, ranging from the libertarian Institute for Justice (the lead lawyers) to the NAACP, AARP and the late Martin Luther King's Southern Christian Leadership Conference. The latter three groups signed an amicus brief arguing that eminent domain has often been used against politically weak communities with high concentrations of minorities and elderly. Justice Thomas's opinion cites a wealth of data to that effect.

And it's not just the "public use" requirement of the Fifth Amendment that's undermined by Kelo. So too is the guarantee of "just compensation." Why? Because there is no need to invoke eminent domain if developers are willing to pay what owners themselves consider just compensation.

Just compensation may differ substantially from so-called fair market value given the sentimental and other values many of us attach to our homes and other property. Even eager sellers will be hurt by Kelo, since developers will have every incentive to lowball their bids now that they can freely threaten to invoke eminent domain.

So, in just two weeks, the Supreme Court has rendered two major decisions on the limits of government. In Raich v. Gonzales the Court said there are effectively no limits on what the federal government can do using the Commerce Clause as a justification. In Kelo, it's now ruled that there are effectively no limits on the predations of local governments against private property.

These kinds of judicial encroachments on liberty are precisely why Supreme Court nominations have become such high-stakes battles. If President Bush is truly the "strict constructionist" he professes to be, he will take note of the need to check this disturbing trend should he be presented with a High Court vacancy.

Posted by aalkon at June 24, 2005 4:27 AM

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Comments

May the members of the Supreme Court who voted against the underpriveleged - because essentially, that is what they did - reap a bountiful harvest of what they have sown. It is my dearest wish that they personally experience the direct consequences of their actions, just like the rest of us.

Posted by: Goddyss at June 24, 2005 9:09 AM

> Bush... will take note of the need to check
> this disturbing trend should he be presented
> with a High Court vacancy.

That's the spirit, Amy!

Just one more Scalia on the court, and it would have gone the other way.

Or did I read you incorrectly?

Posted by: Crid at June 24, 2005 6:00 PM

Meanwhile, Taylor juxtaposes two ugly birds and one handsome stone.

Posted by: Crid at June 24, 2005 8:22 PM

Is it ok if I drop by to give some advice? To take action to mitigate the effects of Kelo: join the Castle Coalition (CastleCoalition.org). The usual disclaimer: my only affiliation is the modest $ I've contributed over the years.

Posted by: Scott Lawton at June 25, 2005 6:28 PM

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