Saturday, June 25, 2005

Kelo v. City of New London

By: Michael Akerman

This post will mark at least the 10th time I've said "This is bad. Bad bad" today.

Today (June 23, 2005, though this post probably won't go up until tomorrow (ADDENDUM: Okay, two days from the ruling. Whatever. I got sidetracked)), the Supreme Court ruled 5-4 that a local government could rightfully seize private property for use by a private entity (as eminent domain). What this means is that anytime a small farm is producing less tax dollars than, say, a Wal-Mart (generic symbol of corporate America) would, the local government can force the farmer to sell his land to Wal-Mart (at "market value"). Let me remind you what the 5th Amendment to the Constitution says:

...nor shall private property be taken for public use, without just compensation.

What this means is that the government can only take private land for public use, and only if the private landowner is justly compensated. I've read people mentioning that the amendment doesn't prohibit taking private land for private use, which is true, but also false: it's been decided time and again that the Constitution serves as a list of government abilities, not government limitations: that is, what the government can do, not what it can't. This means, in fact, that if an act of government is not allowed specifically or generally in the Constitution, it is not allowed at all.

Justice Thomas, in his dissent, also points out that the amendment states the land can be purchased for public use, not public purpose. The founders were very careful about this: elsewhere in the document, they use "general welfare" to include any purpose that makes the publics' lives better. No, this statement allows only for the lands to be owned by the government and used by the people. All the people, not just some. These uses include roads, public schools, parks, and the like. Not shopping malls and superstores.

The Supreme Court ruling effectively adds "or private" immediately after "public" in the above quotation. I find it interesting to point out that the people who supported this ruling (that is, those in the majority opinion) were two liberal justices and three moderates, and those against were decidedly conservative justices. Of course, that's not really the issue here: it's less liberal v. conservative (though that does play a significant role) and more libertarian v. authoritarian (hint: the authoritarian won).

At any rate, this ruling creates a de facto governing power for the corporations, by the corporations. This trusts the local and state governments to make the right decisions about eminent domain (reminding you that local and state officials are surprisingly secure in their incumbancy, almost regardless of their actions) when they're being pressured by very rich lobbying groups. This is not a safe ruling. This is not a wise ruling. This is a ruling that allows a few very rich people to take the land that people have poured their heart and soul, their whole lives, their very existence into owning and maintaining.

Addendum, Jun. 25: The blogosphere, by the way, is abuzz with people against this ruling. No one seems to like it (which is good). There are plenty of people who point out that public policy has been drifting this direction for years (which is true), but even they do not agree with the ruling. Expect (or hope, at least) to see a Constitutional amendment on this issue within a short time.

Sadly, and by My Hand,
Michael Akerman