"Capitalism Is the New Communism"
I was looking for a catchy title to get into the Kelo case, so I just stole Wonkette's. What is Kelo? I'm glad you asked.
I thought Raich was bad. I figured, that's as bad as things can get, the Supreme Court can't screw things up more than that. Boy was I wrong. Kelo is far, far worse.
Basically, the Supreme Court ruled in Kelo that governments can seize your home or business in order to hand it off to another private economic interest on the grounds that the new owners will generate more in taxes than under your ownership. What does that mean? It means that if your local City Hall thinks replacing your house with a 7-11 would generate more in taxes for the city, it can seize it and give it to a developer to build a never-closing Ultimart where your homestead once was. Am I exagerrating? Not in the slightest.
There's no shortage of commentary on the ruling (roundup below), but Stephen Bainbridge's at Tech Central Station is one of the most clear and well-sourced essays I've come across:
The government's takings power is a necessary evil that, if used broadly, can destroy the entire concept of private property rights. As Russell Kirk pointed out, doing so will have devastating affects on society:Justice O'Connor hits it on the head with that great quote. This is simply a disasterous ruling. Unlike Raich, no legislation by Congress will be needed for governments (and in this case, big business) to start trampling over individual's property rights."[F]reedom and property are closely linked. Separate property from private possession, and Leviathan becomes master of all. Upon the foundation of private property, great civilizations are built. The more widespread is the possession of private property, the more stable and productive is a commonwealth." (Link)The Kelo case is a particularly egregious example of how the takings power can be abused. According to the Economist:"The day before Thanksgiving 1998, Susette Kelo, a registered nurse, got an unwelcome holiday gift: an eviction order. Her house, and those of six other families living on an abandoned submarine base called Fort Trumbull, had been compulsorily purchased. She had five months to get out.The Supreme Court has held that private property can be seized via eminent domain as part of an urban renewal project when the property is blighted, a loophole that local authorities have greatly abused to seize private property. Yet, in this case, the government didn't even bother trying to hide behind that fig leaf. They baldly asserted the power to seize private homes because they think some other user can put them to a higher tax generating use, as the following description of the oral argument in Slate made clear:
"What is unusual about this is that her house is no rat-infested health hazard. She bought and spruced it up three years before. Nor is it being seized by a branch of government: the evictor is the New London Development Corporation (NLDC), a private non-profit body.""Justice Antonin Scalia ... describes [City of New London lawyer] Horton's position as: 'You can always take from A and give to B, so long as B is richer.' And O'Connor offers this concrete example: What if there's a Motel 6 but the city thinks a Ritz-Carlton will generate more taxes? Is that OK?
"Yes, says Horton." (Link)
As of right now, any developer can make his case to his local or state government and claim that your house and your neighborhood would generate more taxes is if it was a strip mall or a Wal-Mart or an office park. If that government agrees, it can use emminent domain to take your house and transfer it to the developer. Sure, you'll be compensated, but that's just half of the Takings Clause of the 5th Amendment, as Bainbridge points out. Furthermore, that compensation will likely be well below the "reservation price" of the owners. Bainbridge quotes another eloquent line from Justice O'Connor:
"Any property may now be taken for the benefit of another private party, but the fallout from this decision will not be random."So, let's see where we are after a month of SCOTUS rulings. Thanks to Raich, the Federal government can now pass laws that dictate how you can cook at home and how you raise your kids. And thanks to Kelo, any government can decide that your home would best serve someone else as a video store.
"The beneficiaries are likely to be those citizens with disproportionate influence and power in the political process, including large corporations and development firms."
Until Kelo, I haven't thought the judiciary was out of control. Even Raich wasn't enough to get me to that point. I still don't think that the hubbub over district and appeals court justices is wholly warranted because I believe that a solid Supreme Court bench would more or less keep the lower courts in line. Of course, this Court has just lost its mind.
I now think that installing another conservative justice on the bench is one of the highest priorities facing America today. Unlike the Chright that care so deeply about social conservativism, I could give a rats-ass about all that. I'm more concerned about a Court that is basically running roughshod over the 5th and 9th Amendments and not even looking back. A conservative justice is required to constrain the government's suddenly expanded powers over its citizenry. If Kelo isn't overturned, I'm afraid the United States will slowly become a substaintially less free nation.
Forget the PATRIOT Act, Kelo is a much worse threat to your individual rights. Worried that the Feds might be spying on you in your home? At least you have a home. Kelo lets the government seize your home or business in the name of increasing tax revenues. The far-ranging and damaging impact that'll come from violating the sacrosanctity of property rights can not be overstated.
I'm no lawyer nor a Supreme Court expert. But I know that this nation was built on checks-and-balances against both the rule of the mob and the corrupting nature of power. Kelo seriously undermines those safeguards against the latter threat to liberty.
Power corrupts and it is man's basic nature to try and attain more power than he currently has. The Constitution has been the barrier that stopped government from taking away power from the people. Raich and Kelo just swept away many of those barriers. Inevitably, and with no malicious intent, Congress and other lower governments will slowly but steadily take the power afforded to it by these rulings. It'll be done in the name of the greater good, but what travesties of government aren't?
Between the Nannystate-mindset that currently dominates political thought in this Administration and among its supporters and these two terrible rulings, I fear for the future of liberty. For myself, for you, and for the nation. The unchecked expansion of government power must somehow be stopped, before it becomes entrenched, never to be relinquished.
More commentary and analysis on Kelo:
KipEsquire at a Stich in Haste.
Pejman at Pejmanesque.
John Cole at Balloon Juice, with a great quote from OpinionJournal.
Instapundit here and here.
Captain Ed blasts the New York Times' defense of Kelo, mentioning the Times' conflict of interest.
Michelle Malkin with a roundup and update.
Brash Limburg at the Limburg Letter with a great opening line: " While You Were Busy Protesting The Patriot Act...the government took your house."
The Truth Laid Bear with a Kelo topic page.
Ann Althouse has a more moderate take, which I find uncompelling.
Thomas Merrill at SCOTUSblog defending Kelo.
Professor Bainbridge defends wanting a solid conservative added to the bench in light of Kelo while being consistent in not wanting to use the nuclear option to do it. (I agree.)
posted by Q at 6/25/2005 12:46:00 PM
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