“A new, revised Fifth Amendment”
By Ryan Walsh (06/26/05)
Some say that last week’s Supreme Court ruling in Kelo v. City of New London was really about showing deference to local government and letting democracy work. That is rhetorical twaddle. In reality, and as Justice Antonin Scalia pithily noted during oral arguments, it was about whether “you can take from A and give to B if B pays more taxes.”
On this question, the Supremes ruled in the affirmative. Property rights, the majority determined, are so 18th century.
So what was constitutional quandary in Kelo? It began and ended with the Fifth Amendment, specifically the “Takings Clause.” It reads, “…nor shall private property be taken for public use without just compensation.” This is called “eminent domain.” At the time the Bill of Rights was written, eminent domain had long been firmly cemented in the foundations of English common law. The American framers knew this and likewise acknowledged a place for eminent domain in American law. Yet, the Fifth Amendment gave eminent domain a characteristically American twist. Property could be taken, but only for “public use” and only if the owner were justly compensated.
For hundreds of years, the words “public use” meant that government had the authority to take property for only, you guessed it, public use. That meant parks, roads, bridges, government buildings, and so on.
But last week, over two hundred years of jurisprudence was turned on its head. Instead of “public use,” the ruling majority opted for a new undefined constitutional standard. Call it “public purpose.” Under this Fifth Amendment revision, if demolishing an entire working-class community serves a “public purpose” by bringing in new business and, thus, more city government revenue, you might as well kiss the neighborhood goodbye.
We as private citizens are left with few options. If the city council would rather see a brand new strip mall sitting on your property than your ragged old brown house, don’t go crying to the Supreme Court. It’s not the People’s Court anymore. As constitutional law expert Roger Pilon observed, it’s now “the Government’s Court.”
The consequences of this decision are painfully clear. As Justice Sandra Day O’Connor wrote in her dissent, the results will be anything but random. She assesses it is now “likely” that those who will most profit from this decision will be the few “with disproportionate influence and power in the political process, including the large corporations and development firms.”
As columnist and lawyer Neal Boortz put it, “Bottom line: If you own property, and the government wants that property, you’re screwed…. that means that you own your property, be it your home, your business or a piece of investment real estate only at the pleasure of the local controlling politicians.”
Kelo engenders the perfect conditions for what Alexis De Tocqueville called the “tyranny of the majority.” If 51 percent of a city wants a McDonald’s on the corner of Main Street instead of Grandpa Joe’s Barbershop, no constitutional limitations or Bill of Rights now stand in their way.
When government expands, liberty contracts. No other recent Supreme Court ruling better demonstrates this truism.
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