Friday, June 24, 2005

Take That Away From Me

Professor Stephen Bainbridge wrote in Tech Central Station By a 5-4 vote, the Supreme Court on Thursday ruled that governments may seize your business and even your home in order to facilitate private economic development schemes. It's well settled, of course, that the government can take your property in order to devote the land to some public purpose. The Binghamton campus of the State University of New York, for example, was built in part on land that the state took away from my family. In the case before the Supreme Court, however, the City of New London wanted to seize a neighborhood and turn the land over to a private developer who would then raze the homes and build a big industrial park.... The Economist explained the problem quite succinctly:

"Put simply, cities cannot take someone's house just because they think they can make better use of it. Otherwise, argues Scott Bullock, Mrs Kelo's lawyer, you end up destroying private property rights altogether. For if the sole yardstick is economic benefit, any house can be replaced at any time by a business or shop (because they usually produce more tax revenues). Moreover, if city governments can seize private property by claiming a public benefit which they themselves determine, where do they stop? If they decide it is in the public interest to encourage locally-owned shops, what would prevent them compulsorily closing megastores, or vice versa? This is central planning."
Exactly. The government's takings power is a necessary evil that, if used broadly, can destroy the entire concept of private property rights. As Russell Kirk pointed out, doing so will have devastating affects on society:
"[F]reedom and property are closely linked. Separate property from private possession, and Leviathan becomes master of all. Upon the foundation of private property, great civilizations are built. The more widespread is the possession of private property, the more stable and productive is a commonwealth."
.... One final thought: Reagan appointee Kennedy and Bush 41 appointee Souter voted with the majority, proving once again just how essential it is that Bush 43 pick somebody reliably -- and permanently -- conservative when there's an opening.

Steve Bainbridge blogged My TCS column on yesterday's Kelo decision is up

Glenn Reynolds blogged I'm still getting a lot of angry email, and as noted below, the decision seems to have angered people on both left and right. It's true, as Eugene Volokh noted on Hugh Hewitt's show last night, that it was only a modest extension of existing law. But I think that existing law has moved, by gradual increments, to a point where it's out of step with the Constitution and with public sentiment about what's just. Sometimes a Supreme Court decision, even one that doesn't make new law, can bring people's attention to a situation and drive efforts to change it.

John Cole blogged So, in just two weeks, the Supreme Court has rendered two major decisions on the limits of government. In Raich v. Gonzales the Court said there are effectively no limits on what the federal government can do using the Commerce Clause as a justification. In Kelo, it's now ruled that there are effectively no limits on the predations of local governments against private property. These kinds of judicial encroachments on liberty are precisely why Supreme Court nominations have become such high-stakes battles. If President Bush is truly the "strict constructionist" he professes to be, he will take note of the need to check this disturbing trend should he be presented with a High Court vacancy.

Earlier I posted on this, giving links to all four decisions, and I agree that this makes a very good argument in the upcoming Supreme Court battle.

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