Monday, June 27, 2005

Kelo v. New London

The United States Supreme Court issued a decision June 23, 2005 in the case of Kelo v. New London. I'll start by admitting I have not yet read the decision or the dissenting opinions. The opinions I have formed are based on what I have read in newspapers and heard on various talk shows regarding the decision.

The bottom-line seems to be that the Supreme Court upheld New London, Connecticut’s appropriation, or taking, of private property to further a development plan that would be owned by other private individuals or companies. The Supreme Court indicates that because the area was blighted and the city determined that the new development plan would be more economically beneficial than the residences, the taking falls under a public use.

As a conservative, I value property rights as a fundamental freedom. I don't think that any government ought to be taking private property from one person and giving it to another for a non-public use. I have no problem with a government taking land for construction of a park, roads, a library, etc. I do have a problem with the re-distribution of property from one class of persons to another for the sole purpose of increasing the tax base of the political subdivision. For this reason, I think the Supreme Court has taken another disastrous step down the long road of increasing government power through judicial activism.

From a purely Constitutional/Federalist point of view, I think the Court may have reached the correct result. The Court’s decision was not based on a revitalization of state’s rights, but on an expansion of government power and undermining of individual rights.

The Fifth Amendment to the Constitution includes, as its last line, "nor shall private property be taken for public use, without just compensation". The Constitution served two main purposes: to structure the federal government and to set a limit on its powers. The Federal government was to have limited powers, while the state governments were to have much broader powers - hence the Tenth Amendment. To that end, it was understood at the time the Bill of Rights were ratified, that they applied only to the federal government (most states already had the same protections built into their state constitutions, so many thought a federal Bill of Rights superfluous). Hence, the Fifth Amendment should not apply to New London, Connecticut. From this originalist/strict constructionalist view, there was no federal Constitutional issue for the Supreme Court to rule on, and it should never have heard the case in the first place. The Connecticut State Supreme Court ruled in favor of New London on the takings issue, and that should have been the final word.

Had the citizens of New London and Connecticut disagreed with the state supreme court and the state or local governments, they had several options. They could have removed the local legislature from power and replaced them with those who would follow the will of the people (not corporate or government will). They could have amended the state constitution to address this specific issue and overturn the state supreme court. They could have left for a state with better private property rights. All these options were closed once the Supreme Court decided that the taking was a federal constitutional question and that it was constitutional. Appropriation of private property for purely private use is now legal under the supreme law of the land. There is no state or city in this country where the displaced property owners of New London could go, where this would not be a possibility. I would much rather see change through action of the people governed and not change based on the will of 5 liberal Supreme Court justices.

Unfortunately, the Supreme Court has, since the New Deal era, consistently expanded the meaning and reach of the federal Constitution. It has essentially created a national centralized government with near unlimited power (mostly through the commerce clause, Article 1, Section 8, clause 3). As I stated earlier, the Bill of Rights was understood to apply only to the federal government. After the civil war, the 14th Amendment was enacted. Over time, the Court has used the 14th Amendment as a basis for stating that the Bill of Rights applies to the states (the doctrine of incorporation). By doing this, the Court has been able to force the liberal/socialist agenda of activist judges on the states, undermining the federalist system, and individual freedoms. This recent decision and the medical marijuana decision, evidence the Court's willingness to step into areas of the law, not explicitly covered by the Constitution and traditionally left to the States.

Another interesting thing about this decision is that 5 liberal justices sided with corporate interests over the rights of the 'little-guy'. Liberals are always stating how they are for the little guy. These liberal justices showed their stripes, they are really for unchecked government power to collect taxes at the expense of the little-guy.

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