Tarry for the Nonce

July 6, 2005

What Fifth Amendment?

Filed under: News — lmwalker @ 2:54 pm

So while I was gone, the Supreme Court decided that private property rights were null and void:

The Supreme Court on Thursday ruled that local governments may seize people’s homes and businesses — even against their will — for private economic development . . .

The 5-4 ruling represented a defeat for some Connecticut residents whose homes are slated for destruction to make room for an office complex. They argued that cities have no right to take their land except for projects with a clear public use, such as roads or schools, or to revitalize blighted areas . . .

“The city has carefully formulated an economic development that it believes will provide appreciable benefits to the community, including — but by no means limited to — new jobs and increased tax revenue,” Justice John Paul Stevens wrote for the majority.

He was joined by Justice Anthony Kennedy, David H. Souter, Ruth Bader Ginsburg and Stephen G. Breyer . . .

Justice Sandra Day O’Connor, who has been a key swing vote on many cases before the court, issued a stinging dissent. She argued that cities should not have unlimited authority to uproot families, even if they are provided compensation, simply to accommodate wealthy developers . . .

“Any property may now be taken for the benefit of another private party, but the fallout from this decision will not be random,” O’Connor wrote. “The beneficiaries are likely to be those citizens with disproportionate influence and power in the political process, including large corporations and development firms.”

She was joined in her opinion by Chief Justice William H. Rehnquist, as well as Justices Antonin Scalia and Clarence Thomas.

Idiot liberal judges and huzzahs to Justice O’Connor for her common sense. I hope Bush picks the most conservative bastion possible to replace O’Connor. Could Bork have another go? Or Miguel Estrada?

(Hat tip to Mark.)



  1. While I love to bash the liberal judges too, I don’t think they did this out of liberal ideology. Their decision was more along the lines of pushing the problem back to the localities in an ironic use of the 10th amendment.

    They didn’t make a stupid decision because they’re liberal, they made it because they’re stupid.

    What Bush needs to do is appoint a moderate like O’Connor to balance out the crazies on either side. I found it hilarious that Gonzales is somehow seen as too liberal by the ultra-right. So much so that Bush had to tell them to shut up about it.

    Comment by Mark — July 6, 2005 @ 3:08 pm

  2. By the way, if you’re reading this and you haven’t engaged your representatives on every level about it, go back to China where property rights are a western fantasy.

    Comment by Mark — July 6, 2005 @ 3:10 pm

  3. I found it hilarious that Gonzales is somehow seen as too liberal by the ultra-right.

    This is why I strenuously avoid labels like “liberal,” which are pretty much meaningless. And I refuse to identify myself with any political position, unless you specify the issue.

    The Kelo decision to allow the use of eminent domain to hand over to private entities is not in any way “liberal.” It is arguably leftist, though even that can be debated — certainly plenty of left-wing groups like the NAACP and the Urban League were very much against it. The decision is inarguably statist, though. And as someone who lives in a city where the mayor bulldozes airport runways in the dead of night, I find it extremely disconcerting.

    Comment by Toly — July 6, 2005 @ 3:19 pm

  4. They didn’t make a stupid decision because they’re liberal, they made it because they’re stupid.

    Granted, but “idiot liberal judges” has such a poetic ring to it.

    Comment by laura — July 6, 2005 @ 6:03 pm

  5. Certainly the vast majority of people I know, most of whom are liberal, think the decision was horrible as well. Since I can’t dismiss the Court’s liberal judges as stupid so easily, I’m sort of at a loss to explain the decision, though I suppose it was in keeping with the government’s general behavior and philosophy. It’s almost enough to make me a libertarian.

    Comment by Kevin — July 6, 2005 @ 8:30 pm

  6. I’m not at all mystified by this decision, or why it was favored by the more left-wing side of the Court.

    In choosing between individual rights and the common welfare, the modern Left errs towards the latter. Excepting its lunatic fringes, the Left also tends to place a large amount of trust in governments and officialdom, even if it doesn’t approve of some particular administration or policy.

    This decision puts governments above mere individuals in deciding how land should be used. It therefore fits perfectly into “moderate” Left-wing philosophy. Were it not for its disproportionate effect on “the poor” that the Left favors politically and morally, we wouldn’t even see any internal conflict from that side of the political spectrum. There’s certainly no shortage of evidence that the Left isn’t really big on property rights — witness the constant demands for “affordable housing” set-asides that various activists make of real estate developers.

    Between this and the absolutely atrocious McConnell decision in favor of McCain’s abominable “campaign finance reform” bill, I have to say that I’m with Laura in the hope that the Supreme Court Justices that replace O’Connor and (eventually) Rehnquist be right-wingers of the Thomas/Scalia/Rehnquist variety. Of course, considering that Bush took the cowardly way out in signing McCain-Feingold into law to begin with, I dare not get my hopes up.

    Comment by Toly — July 6, 2005 @ 9:37 pm

  7. Let me know if you find a country that has freedom and isn’t run by socialists. Looks like our individual rights are really being attacked now. I know the argument above was to try to make it sound good, but either way, I really don’t want any city having this power. This is ridiculous. The fallout has already begun.

    Re-defining public use to public good is waaay too broad. Now we have no choice but to buy guns and start a revolution.

    Comment by Andrew P. — July 7, 2005 @ 9:38 am

  8. or wait for the legislature to fix this really horrible ruling….
    Article the seventh [Amendment V – U.S. Constitution]

    No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.

    ARGH ARGH ARGH! What about the government taking land for private use!? There’s no protection in the constitution for that. And hey, doesn’t the Catholic Church own a lot of land? I think we should try to take it because we could do more for the public good (via taxes) with it than they do. ARGH ARGH ARGH! This is SO NOT GOOD!

    To quote a gangster in a recent episode of the Simpsons, That really burns my cannoli!

    You do not know, or want to know, how much this pisses me off….

    Comment by Andrew P. — July 7, 2005 @ 9:55 am

  9. Ok, let’s step back for a moment. Before I say anything more, let me say that I’m also pissed as you can read here. I also think that buying guns is a prudent measure.

    That said, let’s take a good look at what we’re pissed about so we know exactly what we’re fighting.

    First, in Supreme Court terms, “liberal” and “conservative” apply more to a judge’s propensity to interpret the constitution. There is also some overlap with what people might consider the common usages of those terms but it’s not accurate to think that “conservative” means the same everywhere. After all, Thomas dissented in the case that forbade the sale of medical pot. That could have been a liberal position by some estimations.

    So since the liberal judges upheld a statist judgment, that doesn’t mean that they did it for socialist reasons. From what I understand, they didn’t find for the city of New London so much as they determined that the matter wasn’t federal in scope and therefore just upheld the state’s right to make the judgment it did.

    That’s a conservative interpretation of the 10th amendment but a liberal interpretation of the 5th. Take from that what you want but I don’t think socialist ideologies had any part to play in their decision. If anything, the conservative judges were liberal in their decent because they wanted to extend the 5th amendment to mean that public use had a more narrow definition. Or it could be argued that the liberal interpretation was done by the liberals by effectively adding the phrase “or public good of which private development is a part”.

    The net effect of course is that we’re all at the mercy of local laws, politicians and business interests.

    Now we can pick nits forever about who’s really liberal and conservative, why they found as they did, and call the left names. That will not get anyone anywhere.

    What needs to be done (and I’m talking to you) is for everyone to engage their representatives.

    – Contact your local guy/gal (alderman, mayor, village board, whatever). My sympathies if you’re in Chicago or Detroit. Request legal assurance that eminent domain doesn’t extended public use to private development. It’s not hard to do. Just hit google and send a couple of emails and make a couple of phone calls. This is probably the most important level to hit since they are the lowest level and probably most susceptible to corruption. Find out what the process is to change the law if it’s a bad one.

    – Contact your representatives in the state congress. This is the next level of defense. Since SCOTUS threw this back to the states, that means it’s up to the states to protect us. If the state can’t do it, they should be able to trump the cities.

    – Contact your US representative. This is probably the least effective since they’ve all got a lot on their plate and are less likely to respond to any one person. It’s still worth the time. Demand that they write or support legislation for either a constitutional amendment narrowly defining ED to exclude private development or at very least a bill doing the same.

    Again, if you’re not doing this, you’re just watching our rights being taken away. You must participate if you expect your rights to be protected. We certainly didn’t gain independence by sitting back and hoping France would do all the work. If you want, contact me and I’ll ghostwrite the letters for you myself.

    Here’s where you can find out your representatives’ contact info.

    Comment by Mark — July 7, 2005 @ 10:33 am

  10. Speaking of which, when are you entering the political arena, Mark?

    Comment by laura — July 7, 2005 @ 12:35 pm

  11. Speaking of which, when are you entering the political arena, Mark?

    No time soon. I’d probably just be a repeat of Badnarik anyway only less abrasive. I just make a pest of myself to my representatives. So far it’s met with success though.

    Comment by Mark — July 7, 2005 @ 2:07 pm

  12. I just make a pest of myself to my representatives. So far it’s met with success though.

    As do I. However, I do not see any tangible evidence that my constant calling, e-mailing & phone calls elicits anything other than form letters or requests for contributions. Phone calls don’t demonstrate much better response — other than being able to talk with the local reps (for city or state) and, oftentimes, arguing with them.

    Of course, I persist.

    From what I understand, they didn’t find for the city of New London so much as they determined that the matter wasn’t federal in scope and therefore just upheld the state’s right to make the judgment it did.

    This was my understanding as well. But, it is a contradiction from rulings in legal decisions that should have been left to the state or local government but where SCOTUS made their ruling supreme (pun intended), countermanding the state or local ruling.

    Dare I give an example?

    Comment by auntlori — July 7, 2005 @ 3:00 pm

  13. I was doing some research to prove my brother wrong, and I thought it might benefit this site to see the whole truth:

    I liked what Clarence Thomas said…
    Thomas argued in favor of deciding the case based on the text of the constitution itself, rather than by judicial precedent, which he believed was flawed:

    the principles this Court should employ to dispose of this case are found in the Public Use Clause itself, not in Justice Peckhamís high opinion of reclamation laws. When faced with a clash of constitutional principle and a line of unreasoned cases wholly divorced from the text, history, and structure of our founding document, we should not hesitate to resolve the tension in favor of the Constitutionís original meaning.

    Now we just have to define ‘blight’:
    The wider effect of Kelo remains to be seen. It will have little effect in the eight states that specifically prohibit the use of eminent domain for economic development except to eliminate blight: Arkansas, Florida, Illinois, Kentucky, Maine, Montana, South Carolina and Washington.

    Comment by Andrew P. — July 11, 2005 @ 11:01 pm

  14. oops….figured the Laurablog was so powerful it could recognize links in posts….

    For the truly lazy….

    Comment by Andrew P. — July 12, 2005 @ 11:36 am

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