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June 28, 2005 [LINK]

Private property, private shmoperty

Friday's ruling by the Supreme Court that local governments can exercise the right of eminent domain to acquire private property with the intent of reselling it to new owners, rather than making it available for some genuinely public use, has rightly been regarded by conservatives as a frontal assault on individual liberties. Homeowner Susette Kelo lost her case against the city of New Haven, CT, which seeks to redevelop a waterfront area into an upscale office / residential / shopping complex. Now the city will rake in extra tax revenues from the increment in property value, sharing the benefit with the favored private investors. This was such an egregious case of economic-political elites using the coercive power of the state to enrich themselves that it is amazing that anyone could rationalize it.

Justice John Paul Stevens, writing for the majority, cited cases in which the court has interpreted "public use" to include not only such traditional projects as bridges or highways but also slum clearance and land redistribution. He concluded that a "public purpose" such as creating jobs in a depressed city can also satisfy the Fifth Amendment. SOURCE: Washington Post

Stevens' bland assertion that "[p]romoting economic development is a traditional and long accepted function of government" places FDR's New Deal on a higher plane than the Constitution. It was a 5-4 decision, with Justices Scalia and O'Connor (!) writing bitter dissents. See George Will pointed out the irony that the Court exercised "deference" to local government, in a case where conservatives would wish for judicial activism. in the Washington Post:

Liberalism triumphed yesterday. Government became radically unlimited in seizing the very kinds of private property that should guarantee individuals a sphere of autonomy against government.

Perhaps a bigger irony is that the notion of private property as a bulwark of individual freedom was once considered a liberal notion, and in most of the world, it still is. What this ruling signifies is the final, definitive divorce of modern American "liberalism" from its classical liberal roots. In the minds of the Europhilic left-liberals of today, wariness toward the power of government is no longer warranted as long as the power is exercised domestically. (Antipathy toward the military may be in part a compensation for this pro-state bias.) Is all this hubbub over property rights really such a big deal? Some people regard "a man's home is his castle" to be nostalgic silliness. Well, consider this:

The great and chief end, therefore, of men's uniting into common-wealths, and putting themselves under government, is the preservation of their property. SOURCE: John Locke, Second Treatise of Government (Italics in original.)

Lockean liberals (!) hold that communities are strongest when each member has a clearly defined portion of land of his (or her) own to live on, so that there is a broadly shared interest in maintaining public order. In crowded parts of the world, such a condition is nothing more than a utopian pipe dream. America is unique in the way that virtually anyone with proper motivation can acquire property and thereby obtain a stake in social stability. This is what makes our country so irresistably appealing to immigrants, who are buying up houses by the thousands. The fact that so many of our legal and political elites are oblivious to this vital foundation of our society is tragic. Without a broad shared stake in the institution of property, neither elites, nor those of more modest means have much incentive to abide by the rule of law, and corruption becomes rampant. Control of the reins of government power would become even more highly prized than it already is, and resentment by the losing side in elections would increase. Is that what we want? This ought to be a situation in which reasonable people from both side of the political spectrum can agree on the public interest. Unless the Supreme Court's interpretation is somehow sharply modified in the next few years, however -- perhaps by virtue of a more conservative justices, or at least more prudent and circumspect ones -- our republic will have lost a vital underpinning of its vitality. Our society will continue to slouch in the direction of spiritually dead, statist Europe, beholden to the government for all blessings of life. For a variety of reactions to the Kelo case, see Instapundit and SCOTUS blog. For some laughs, see Free Star Media, which plans to build a "Hotel Lost Liberty" on land in New Hampshire to be acquired from Justice David Souter. (via Rush Limbaugh)

UPDATE: In response to the Kelo v. City of New London decision, Sen. John Cornyn (R-Tex.) has introduced the Protection of Homes, Small Businesses, and Private Property Act of 2005. It's terribly sad that such a measure is even considered necessary. See

Posted (or last updated or commented upon): 29 Jun 2005, 12: 13 AM

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