Nothing Above The State?

If any case ever demonstrated how important the current battles over the federal judiciary should be to all Americans, surely it was the one that was decided yesterday by the U.S. Supreme Court. If certain elements of the population will not be prompted to action by the implications these battles have for social policy issues, maybe they will be motivated by the implications these battles now have for private property issues.

In a 5-4 decision, the high court ruled that the city of New London, Connecticut has the right to invoke Eminent Domain in order to evict city residents from the homes that they own. Of course, the doctrine of Eminent Domain has long been accepted in the United States, even from the time of the drafting of the Bill of Rights, which implicitly acknowledged, via the Fifth Amendment, government’s right to invoke it so long as two conditions were met.

The second of these conditions – the requirement that just compensation be provided to the citizen whose property is to be seized – is not what’s at issue in yesterday’s Kelo v. New London case. Indeed, it is the first condition imposed by the Fifth Amendment that must be met before any questions of compensation even become relevant: The requirement that the property to be seized is to be for public use.

In this particular case, the City of New London, the Connecticut Supreme Court, and the U.S. Supreme Court have all clearly missed the mark. For the property seized in this case is not being seized for public use. It is to be sold to the Pfizer Corporation and certain private developers for the purpose of building a research facility to be surrounded by upscale residences and businesses. In other words, at the end of the day, the property that is to be taken from private parties will not be publicly owned. It will merely be awarded to other private parties – private parties that can pay more taxes than the individuals currently residing on the property in question.

The tortured reasoning used by New London in its attempt to justify this infringement on its citizens’ private property rights is this notion that the new – private – owners of the property will be able to generate more revenue for the local government, thus, they argue, meeting the “public use” requirement for invoking Eminent Domain. Yet, while the new owners of the property may be able to line the city’s coffers on a more lucrative scale than did the old ones (A new means of buying influence?) the property itself that is at issue will still be in the possession of private entities, not the public.

Of course, ironically, in its effect, this ruling has rendered the notion of private property in America as passé (pardon my French) anyway. If government can seize any private property and award it to private parties for their ability to feed its insatiable appetite for cash on a grander scale than other private parties, it can do so with all private property. This means we now own our property only with the permission of the government. Never before has America looked more like Mussolini’s vision: “Everything for the state, nothing outside the state, nothing above the state.” Perhaps the corporate entities that benefited from this ruling will one day remember it with horror when they are bumped out in favor of some other company with still deeper pockets.

The effect of this decision makes it indisputably the most historically significant decision that will come out of this term. And unfortunately, as has been the case with some other of the most historically significant decisions, it is wrong and will have to be corrected later, if ever, only after causing much heartache for the American people in the meantime.

In this light, it is useful to note that, among those who offered a commendable dissent against this travesty are Justices Clarence Thomas and Antonin Scalia – the men who President Bush has cited most often as the models for his ideal Supreme Court nominee. And, of course, the very men most vilified by the Democrats in the Senate who seek to block the President’s nominees at every turn.

Which raises a reasonable question: If the Democrats in the Senate, who insist on usurping the Executive Branch’s prerogative in selecting nominees for the Federal Bench, kick so viciously against the type of jurists who act so passionately in the defense of private citizens’ property rights, what will their “ideal nominees” have to say on issues such as these, if they are allowed to ascend to the bench? For many of us, that is a question to which we hope to never learn the answer.

For the people of New London, the answer to the current local problem may be to clean house in the next City Council election. For the remainder of us, it may be to vote in 2006 and 2008 for the party that has been most supportive of the voices of dissent in this particular miscarriage of justice.