30 January 2008

Constitution #2: The Takings Clause

The Objectivist
THE TAKINGS CLAUSE: THE SUPREME COURT GOES TO WAR AGAINST PRIVATE PROPERTY
Dunkirk-Fredonia Observer
Monday, January 28, 2008

In the Hall of Shame, few Supreme Court cases are more distinguished than Kelo v. New London, 545 U.S. ____ (2005). In it, the Court held that the government could take a citizen’s land, house, business, or farm and give it to another so long as the latter would likely pay more taxes, create a handful of new jobs, or do any number of other things the crass legislators want done.

In 2000, the city of New London, Connecticut approved a development plan that was projected to create jobs, increase tax revenues, and revitalize an economically distressed city. Some portions of forcibly taken land were to be transferred to a pharmaceutical mega-company, Pfizer. Other portions would be used for a waterfront hotel that would include restaurants, stores, a museum, and a parking lot. The unwilling sellers would then be given just compensation. In putting together the portions, the city authorized a private development group to purchase land from willing sellers and use eminent domain (forcible taking) to take it from unwilling ones. Members of this development group were privately chosen and thus unaccountable to voters.

Among the unwilling sellers was Wilhelmina Dery, who lived in a house that had been in her family for over 100 years. She was born in it in 1918 and her husband had moved into it when they married in 1946. Their son lived next door with his family in the house his parents gave him as a wedding gift. Another litigant, Susette Kelo, made extensive improvements in her house and prized it for her water view. The private agency had decided that these houses would be transferred to Pfizer or used for a parking lot or other support for the new village.

These homeowners pointed out that the Constitution prohibits such actions. The Fifth Amendment provides “[N]or shall private property be taken for public use, without just compensation.” This generally has been taken to put forth two conditions on government taking of property.
1. The government may take property from an unwilling owner only if it is for a public use.
2. The government may take property from an unwilling owner only if it provides just compensation.
Unwilling owners like Dery and Kelo claimed that because their property was to be given to other private parties, it was not for public use.

Traditionally, the public-use requirement for a taking has been limited to three areas. First, takings were allowed when private property was transferred to the government and used for things like roads, hospitals, or military bases. Second, takings were allowed when the government gave the property to private parties who then made the property available to the public. Examples included common carriers (for example, railroads). Third, takings were allowed to prevent harm. One example of this was a Washington, D.C. neighborhood that was so blighted that it threatened the community’s health and safety. The New London case did not fit into these categories.

In a five-to-four decision, Justice Stevens, writing for the majority, argued that the phrase “public use” should be interpreted as “public purpose.” The Court’s arguments rested solely on previous cases. It gave particular emphasis to two recent cases, one involving blighted land [Berman v Parker, 348 U.S. 26 (1954)] and an odd one in Hawaii in which a few landowners owned almost all the private land, which distorted the housing market [Hawaii Housing Authority v. Midkiff, 467 U.S. 229 (1984)]. Stevens reasoned that because promoting economic development was a public purpose, the city was free to forcibly take the individuals’ lands and houses and give it to those who would put it to better use. Stevens and his gang of four then said that the Court would defer to the legislature in deciding what counts as a public purpose, when a plan promoted it, and whether particular taking was part of the plan.

Justice Thomas (a man among boys) dismembered Stevens’s argument. Stevens argued that “to use” should be interpreted broadly to mean “to have a beneficial purpose.” First, Thomas pointed out that dictionaries at the time the Fifth Amendment was written and passed interpreted “to use” in a narrow sense to mean “to employ,” “to avail one’s self of,” and “to enjoy,” etc. Thomas pointed out that when the government takes property and gives it to another individual so the latter can pay more taxes, it strains the language to say the public is employing the property, availing themselves of it, or enjoying it. Second, Thomas noted that in two other places (Article I Sections 8 and 10) the Constitution mentions “use” and applies the narrower interpretation. Third, he argued that if those who framed and ratified the Constitution had meant by “public use,” “public purpose,” they likely would have used the “general Welfare” phrase found elsewhere in the Constitution. Fourth, he pointed out that the narrower interpretation fits with the common law and the early cases of government taking people’s property.

Thomas and Justice O’Connor (in a separate dissent) point out the deference given to the legislature is shocking because it makes it nearly impossible for someone to block a government taking. This is because the Court made it crystal clear that it will not evaluate any aspect of a government taking that could be reasonably challenged.

In essence, then, the Court decided that any private property may now be taken and transferred to another owner who will use it in a way that the government deems preferable. The greater benefit might consist in such things as paying slightly more taxes or making aesthetic improvements. The majority’s conclusion clashed with the language of the Constitution and the intent of those who wrote it and voted for it. The deferential treatment ensures that the government’s inevitable claim that transferring property to a new owner will benefit the public will be petty much automatically accepted.

After this decision, it is clear that a fundamental right, the right to property, will not prevent the government from taking someone’s property. This has and will protect the government’s forcible taking of homes, farms, motels, dollar stores, and poorer racial and ethnic communities and handing these over to wealthy corporations and land developers. Justice Stevens and gang of four (Ginsburg, Souter, Breyer, and Kennedy) elsewhere succeeded in making a mockery out of the Commerce Clause and deleting the Tenth Amendment. They are a judicial cancer that is slowly eating away at this country’s innards.

4 comments:

The Objectivist said...

The rejection of the private property rights is a bad sign because it signals yet disrespect for other Constitution provisions.

In particular, the Supreme Court has carved vast exceptions to the exclusionary rule (throwing out incorrectly obtained evidence) and the free speech clause (McCain-Feingold). It has so far allowed states and localities ignoring the Second Amendment (guns).

This case signals that more of this is on the way.

The Objectivist said...

There are a number of arguments against original intent.
1. A collection of persons don't have a single mind and hence don't have an intent.
2. The intentions of different persons can't be aggregated because there is no relevant overlapping content (e.g., do we focus on their foreseen examples, definitions, or policies).
3. The law consists of the words, not the inaccessible thoughts of legislators.

I claim that these arguments are not fatal, but will not defend my argument here.

The Objectivist said...

I wonder what justifies complete deference in the area of private property rights and little to no deference when it comes to discrimination and other leftist-type cases. I wonder what distinguishes them?

hangzhou7906 said...

好秘书 中国呼吸网 肿瘤网 中国皮肤网 癌症康复网 工作总结 演讲稿 竞聘演讲 就职演讲 比赛演讲 征文演讲 节日演讲 演讲技巧 方案制度 工作意见 活动策划 工作方案 整改方案 实施方案 企划文案 销售方案 培训方案 应急预案 规章制度 法律法规 材料大全 事迹材料 先进事迹 个人事迹 申报材料 学习材料 考察材料 经验材料 交流材料 个人鉴定 自我鉴定 模板范例 技巧经验 工作计划 工作规划 年度工作计划 学校工作计划 个人工作计划 财务工作计划 团委工作计划 工会工作计划 单位工作计划 德育工作计划 教学工作计划 班主任工作计划 党支部工作计划 先教活动 整改措施 剖析材料 反腐倡廉 三农问题 和谐社会 三个代表 八荣八耻 先进性教育 党团工会 党团知识 党员相关 党会发言 党性分析 民主生活会 入党志愿书 入党申请书 入团申请书 转正申请书 公文写作 板报设计 办公表格 谈判技巧 外贸信函 公文 秘书 广告启事 通知 求职指导 求职信 自荐信 简历封面 简历模板 简历范文 简历制作 英文简历 面试技巧 学术论文 企业文化 毕业论文 经济工作 财经金融 城建环保 教育教学 工矿企业 党政司法 合同 合同知识 买卖合同 承包合同 投资合同 招标合同 建设工程 劳动合同 运输合同 房屋合同 借款合同 销售合同 租赁合同 保险合同 其它合同 秘书 述职报告