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Jewish World Review June 27, 2005 / 20 Sivan, 5765
Supreme Court fails its duty in property ruling
By Robert Robb
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http://www.JewishWorldReview.com |
Last Thursday's U.S. Supreme Court ruling that private property can be
confiscated by government for private development stands the Constitution,
as written by the founders, on its head.
Sandra Day O'Connor's dissent quotes Alexander Hamilton as saying that the
"security of property" was one of the "great objects of government." That
was a universally shared view among the founders. In fact, it's fair to say
that the founders agreed on that principle more than any other.
That protection was given concrete reality in the takings clause of the
Fifth Amendment, which states: "nor shall private property be taken for
public use without just compensation."
As Clarence Thomas painstakingly points out in his dissent, by this the
founders did not mean that private property could be taken for private use
without just compensation. They meant that private property could not be
taken for private use, period.
The majority opinion, written by John Paul Stevens, contends, however, that
private property can be taken for private use so long as government
perceives that the public will benefit from the change in use. Moreover,
the court isn't going to get into the business of second-guessing local
governments about what constitutes a public benefit or whether the change
in use will result in one.
This completely reverses the intent of the founders to create a system of
private property protected by government. Instead, according to the court,
all property is in a fundamental sense communal. Government can take it
from a private owner any time government believes that someone else would
put it to a use government prefers.
The facts in this case couldn't more clearly illustrate the intent of the
founders. One of the plaintiffs contesting the condemnation was born in the
house the government wanted to confiscate in 1918. The home has been in her
family for over 100 years. Her husband moved into the home with her when
they were married. They bought the house next door as a wedding present for
their son, who still lives there. Their homes have been well maintained, as
the majority opinion concedes. The town of New London, Connecticut wanted
to confiscate their homes and turn the property over to an office
developer.
To fail to acknowledge that the intent of the founders was to protect such
people in such circumstances requires a perverse historical blindness. Such
takings are precisely what the Fifth Amendment was supposed to prevent.
The ruling will not have as much effect in Arizona as elsewhere. Arizona's
Constitution has its own prohibition against government taking property for
private use. Moreover, it flatly says that determining whether a use is
public or private is a judicial decision and is to be made "without regard
to any legislative assertion that the use is public." So, Arizona courts
don't get to duck their duty the way the U.S. Supreme Court did.
Nevertheless, how the federal courts interpret comparable provisions does
influence how state courts tend to interpret their own provisions. So, the
federal ruling might cause Arizona state courts to give government at least
slightly greater leeway in condemnations.
Nationally, the unwillingness of the U.S. Supreme Court to do the job the
founders envisioned is leading to a crisis of liberty.
The founders intended to create an energetic but limited government. The
job of the U.S. Supreme Court was to protect fundamental liberties against
an overreaching government.
To the founders, there were no more fundamental liberties than private
property rights and the freedom of political speech.
Meanwhile, the court has aggressively protected rights of its own creation,
such as to an abortion or to homosexual sex.
Now, an intellectually honest argument can be made that the new rights the
court has created are logically derived from the explicit rights the
founders clearly established in the Constitution and created the Supreme
Court in part to protect.
But no intellectually honest defense can be made of a court that
aggressively protects the derivative rights while abandoning protection of
the explicit rights.
In our system of government, if the U.S. Supreme Court is unwilling to
protect fundamental liberties against an overreaching government, what's a
free people to do?
In this case, the court has abandoned protecting private property against
confiscation by an overreaching government. Previously, it had abandoned
protecting political speech against government regulation and limitation
when it upheld McCain-Feingold.