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Takings

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Now do you see what the Conservatives are worried about when they go off on "judicial activism?" The Supreme Court's decision issued yesterday to repeal the Takings clause of the Fifth Amendment should cause all home owners (and everyone who hopes someday to own a home) to take to the streets in protest. Your home is not safe from Pfizer, from Wal-Mart, from Donald Trump, from anyone else who can convince your city council that they can earn more tax money from your property than you now pay, and you now no longer have recourse--the Supreme Court Has Spoken. In 1985, law professor Richard Epstein wrote the book Takings: Private Property and the Power of Eminent Domain. Like much of his writings, Epstein is strongly distrustful of governmental power, and is therefore in the mainstream of traditional mainstream American political thought (now marginalized as "libertarianism.")

Takings received a bit of notoriety when Senator Joe Biden (D-Delaware) waved the book scornfully in front of Clarence Thomas at Thomas' Supreme Court nomination hearing.

Biden failed in his attempt to smear Thomas with libertarianism, and Thomas now sits on the Supreme Court. That Supreme Court has now, on a 5-4 vote (of which Thomas was one of the minority four), essentially repealed a major clause of the Fifth Amendment to the Constitution.

To briefly review, the Fifth Amendment reads
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.

Let's think about that clause in bold above for a minute. That's the one Epstein wrote about twenty years ago in Takings. That's the one that the Supreme Court just shredded in yesterday's decision Kelo vs. New London.

Excerpts from this opinion, authored by Justice Stevens (who should be summarily removed for breach of oath and replaced by Epstein, in case the editorial stance of Medary.com might have hitherto been lost on you):

Petitioner Susette Kelo has lived in the Fort Trumbull area since 1997. She has made extensive improvements to her house, which she prizes for its water view.
. . .
There is no allegation that any of these properties is blighted or otherwise in poor condition; rather they were condemned only because they happen to be located in the development area.
. . .
(The Connecticut Supreme Court) held, over a dissent, that all of the City's proposed takings were valid. . . . (It held that Connecticut statute) expresses a legislative determination that the taking of land, even developed land, as a part of an economic development project is a "public use" and in the "public interest."
The disposition of this case therefore turns on the question of whether the City's development plan serves a "public purpose." Without exception, our cases have defined that concept broadly, reflecting our longstanding policy of deference to legislative judgments in this field.
. . .
Viewed as a whole, our jurisprudence has recognized that the needs of society have varied between different parts of the Nation, just as they have evolved over time in response to changed circumstances.
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Quite simply, the government's pursuit of a public purpose will often benefit individual private parties.

Justice O'Connor delivered a dissent which has been reported in some circles as "scathing:"

Today the Court abandons (a) basic limitation on government power. Under the banner of economic development, all private property is now vulnerable to being taken and transferred to another private owner, as long as it might be upgraded--i.e. given to an owner who will use it in a way that the legislature deems more beneficial to the public--in the process. To reason, as the Court does, that the incidental public benefits resulting from the subsequent ordinary use of private property render economic development takings "for public use" is to wash out any distinction between private and public use of property--and thereby effectively delete the words "for public use" from the Takings Clause of the Fifth Amendment. Accordingly, I respectfully dissent.
. . .
At oral argument, counsel for (the City) . . . offered that the parcel might eventually be used for parking.
. . .
In moving away from our decisions sanctioning the condemnation of harmful property use, the Court today significantly expands the meaning of public use. It holds that the sovereign may take private property currently put to ordinary private use, and give it over for new, ordinary private use, so long as the new use is predicted to generate some secondary benefit to the public--such as increased tax revenue, more jobs, maybe even aesthetic pleasure. But nearly any lawful use of real private property can be said to generate some incidental benefit to the public.
. . .
The spectre of condemnation hangs over all property. Nothing is to prevent the State from replacing any Motel 6 with a Ritz-Carlton, any home with a shopping mall, or any farm with a factory.
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Finally, in a coda, the Court suggests that property owners should turn to the States, who may or may not choose to impose appropriate limits on economic development takings. . . . This is an abdication of our responsibility. States play many important functions in our system of dual sovereignty, but compensating for our refusal to enforce properly the Federal Constitution (and a provision meant to curtail state action, no less) is not among them.
. . .

Senator Biden's "favorite" Justice, Clarence Thomas, provided another dissent:

The Framers . . . allowed the government to take property not for "public necessity." but instead for "public use." . . . Defying this understanding, the Court replaces the Public Use clause with a "Public Purpose Clause," (or perhaps the "Diverse and Always Evolving Needs f Society" Clause . . . a restriction that is satisfied, the Court instructs, so long as the purpose is "legitimate" and the means "not irrational." . . . 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."
. . .
The most natural reading of the (Takings) Clause is that it allows the government to take property only if the government owns, or the public has a legal right to use, the property, as opposed to taking it for any public purpose or necessity whatsoever.
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The Takings Clause is a prohibition, not a grant of power. The Constitution does not expressly grant the Federal Government the power to take property for any public purpose whatsoever. Instead, the Government may take property only when necessary and proper to the exercise of an expressly enumerated power.
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The Court has elsewhere recognized "the overriding respect for the sanctity of the home that has been embedded in our traditions since the origins of the Republic" . . . when the issue is only whether the government may search a home. Yet today the Court tells us that we are not to "second-guess the City's considered judgments" . . . when the issue is, instead, whether the government may take the infinitely more intrusive step of tearing down petitioners' homes. Though citizens are safe from the government in their homes, the homes themselves are not.
. . .
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 Constitution's original meaning. For the reasons I have given, and for the reasons given in Justice O'Connor's dissent, the conflict of principle raised by this boundless use of eminent domain power should be resolved in the petitioners' favor. I would reverse the judgment of the Connecticut Supreme Court.

Unfortunately, Justices O'Connor and Thomas were in the minority here. The Constitution will be ignored, and Pfizer Corporation will be allowed to demolish a home with an ocean view.

Do you still think that "judicial restraint" and respect for "original intent" are outmoded concepts? This could very soon be your house being bulldozed. I hope you're happy.