The Supreme Court's "Takings" Decision: Maybe I am conservative after all

As much as Bush has done to re-awaken my innate but long-dormant liberalism, the "liberals" on the Supreme Court have made me yet again reconsider. First, there was the medical marijuana case, discussed here and here. Now there is this, KELO v. CITY OF NEW LONDON , another triumph of the State over individual rights.

The facts are pretty easy to summarize. New London is a "distressed city" with relatively high unemployment and declining population. Pfizer wanted to build a facility there, and, in an effort to parlay that investment into a broader effort at economic development, the City decided to convert the area adjacent to the proposed Pfizer facility -- a peninsula sticking out into the Thames River -- into a mixed use development zone consisting of hotels, office parks, marinas, etc. that would be leased to private parties. The City was able to buy most of the property involved, but 15 parcels were owned by private residents who did not want to sell their homes. The City moved to take these properties by eminent domain and the homeowners sued to enjoin the taking.

The Fifth Amendement to the US Constitution provides that "private property [shall not] be taken for public use, without just compensation." The homeowners argued that this provisions allowed takings only for "public use" and that the takings at issue here were not for "public use" but were rather transfers from the exisiting homeowners to other private parties (i.e the future lessees of the anticipated improvements). The four liberals (Stevens, Breyer, Douter and Ginsburg), joined this time by Justice Kennedy, held that "public use" requirment did not really mean that the public had to be entitled to actually "use" the improvements. It was enough that the improvements would redound to the public benefit. Further, the State did not have to demonstrate that the public would actually benefit. It was enough that the City concluded that it would. The four "conservatives" -- Rehnquist, O'Connor, Scalia and Thomas dissented.

To my mind Justice O'Connor is right when she says that if a state prediction of a public benefit is enough to justify a taking, then the "public use" restriction in the Fifth Amendment is of no practical effect. It would prevent a taking only if the state were silly or incompetent enough to "find" that there was no public benefit to what it proposed to do. Perhaps more important, though, is this point, also from Justice O'Connor's opinion:

Any property may now be taken for the benefit of another private party, but the fallout from this decision will not be random. The beneficiaries are likely to be those citizens with disproportionate influence and power in the political process, including large corporations and development firms. As for the victims, the government now has license to transfer property from those with fewer resources to those with more. The Founders cannot have intended this perverse result.

In the never-ending struggle to balance the interests of the government against the rights of the individual, the interests of the government have prevailed again. It is just so strange to see this happening -- as it did on the medical marjuana cases -- at the hands of those Justices commonly thought to be "liberal".

Update: The NYT editorial page today applauds this decision, characterizing it as "a welcome vindication of cities' ability to act in the public interest [and] a setback to the 'property rights' movement, which is trying to block government from imposing reasonable zoning and environmental regulations." That last bit about trying to block reasonable zoning and environmental regulations is gratuitous, facile and utterly beside the point. Kelo and her co-petitoners were not battling "reasonable zoning and environmental regulations." Indeed, they weren't battling "regulation" at all. They were battling to prevent the City of New London from evicting them, bulldozing their homes and giving their land to another private person whom the City concluded would put the land to "better" use. To treat this case as blow against those battling "reasonable" regulation demeans what is actually at issue.

The earlier characterization of the case as a "vindication of cities' ability to act in the public interest" is closer to the point, but whether that "vindication" is "welcome" is debatable. The problem here is that the Times has a lot more confidence than I do in (a) the integrity and competence of government and (b) the ability of the government to identify and then effectively pursue "the public interest." Even when pursued with the best of intentions and planning, these sorts of grandious "economic development" projects are little more than tax-payer-financed gambles in which the only sure winners are the developers. And many of them are not pursued with the best of intentions and planning. Indeed, there is a significant history of outright graft in connection with such projects. Still, I do not disagree that a government of a distressed City has the duty to at least try to make things better, and I also agree that individual landowners should not be able to derail these types of projects. Thus, where the property in question is purely commercial property, I guess I can live with the Court's approach, since, in theory at least, the owner of purely commercial property can always be adequately compensated with money. But where people's homes are at stake, I would sure like to require more from the government than a simple ipse dixit that the result of evicting them will be "in the public interest."

Update 2: And so it begins.