Thursday, June 23, 2005


SCOTUS: What is ours is ours, and what is yours is ours if it is part of a development plan

"The law of the land ... postpones even public necessity to the sacred and inviolable rights of private property."
- William Blackstone
1 Commentaries on the Laws of England

I have read the opinions (that can be found here), which were not overly long, given that the majority and two dissents only amounted to 58 pages. Like most bloggers, I am aghast at the U.S. Supreme Court's decision in Kelo v. New London. While I disagree with Bill Hobbs that libertarianism is what is needed to beat back this tide of big government enslaving the American citizen (conservatism deals precisely with this problem, as well), I think that we call can agree that this decision shows that the elites in this country - whether judicial, legislative, executive, financial, or corporate - have free reign over all of us. The true scope of this decision is hard to predict, but the Court surely handed governments - from the biggest to the smallest - the ammunition to take all of the real property you own if they can make a straight-faced argument in court. That's scary. If governments start to seize property right and left, how can it be said that we live in a free society? For us Tennesseans, a better question might be: would such actions trigger Article 1, Section 1 of the Tennessee Constitution, whereby we have a duty as Tennesseans to reform or abolish a tyrannical government? Also of interest is Article 1, Section 2, as an unrestrained use of eminent domain power by local and state governments is "absurd, slavish, and destructive of the good and happiness of mankind," thus making such actions constitutionally permissible under the Federal Constitution (as established in the long standing tradition established about 10:00 this morning) but against the Constitution of the State of Tennessee. (I, of course, would like Professor Glenn Reynolds' views on this, because he was my Advanced Constitutional Law professor, and I was a mere student.)

Reactions across the Blogosphere have been swift and strong. David Bernstein uses the decision in Kelo to dismiss liberal critics that believe the Left is against big government. Eugene Volokh focuses on the unusual positions taken by the different sides (and gets hammered for his analysis in the comments section). Jay Bush sees this as more proof that a legal mind like Ed Bryant's is needed in the Senate Judiciary. SayUncle has an impassioned if not analytical view of the decision. Blake Wylie calls it a "national tragedy." Liberal journalist Brittany at Nashville Is Talking believes that liberals and conservatives are united in protest over Kelo. Liberal South Knox Bubba (who I am happy to link to now that he is no longer anonymous - as a former journalist, I don't do anonymous sources) is worried about the South Knox riverfront project - and I join his feelings because I was thinking the same thing a few weeks ago as anticipation of this decision grew. John Walter sees the progression of the government claiming everything (like "the Nothing" from The Neverending Story?) - except Barbara Streisand's house. Glen Dean is outraged and writes that this is why the courts are so important (a thought echoed by Professor Bainbridge). I agree in their importance, but it's hard to blame the Democrats for this one when Souter and Kennedy are necessary to round out the majority. Doc B sees one glaring weakness (maybe more glaring in some blue states than in some red ones) in this new wild west of eminent domain - churches. At Daily Kos... well, there is an example of where "liberal" stops and "communist" begins.

Professor Reynolds has several thoughts, both on Instapundit and at Reynolds does not believe this to be a far departure from precedent and that the law was moving in this direction. While I concur, you can't blame a guy for dreamin', right? I certainly predicted this outcome - maybe not so sweeping, as Justice Stephens was taking no prisoners with his majority opinion that was concurrently eloquent yet revolting - but I held out hope that the power of eminent domain would finally be limited, that big government would lose one battle in this war, that Americans could one day be free like those in Iraq and Afghanistan. Maybe I asked for too much, because I feel that everyone - liberal, conservative, libertarian - lost today, as we are all Americans. I suppose that there are some winners, but they are the elites. I once argued that Elite Theory was alive and well in our nation's government while sitting in Professor Anthony Nownes' "Political Parties" course and felt depressed in my own beliefs. That depression has undoubtedly returned.

One area of hope that is somewhat alluded to above - state law. Tennessee has a way - violent and bloody as it may be - with dealing with government that runs amok. Several other states -Arkansas, Florida, Illinois, Kentucky, Maine, Montana, South Carolina and Washington - have state laws that deal directly with the problem of eminent domain. So, if you have confidence in your state legislators, there is still some hope for your property rights. (So why do I feel less hopeful for Tennessee?)

A few final notes... Mainstream media seems to be focusing on Justice O'Connor's dissent (as seen in CNN's report). While it was well-worded and strong (O'Connor focuses on 5 justices rewriting the Constitution to fit their own outcomes), I think they are missing the boat by ignoring Justice Thomas' excellent rebuttal to Stephens' majority opinion. Thomas' dissent is a clinic on how analysis - of the verbiage, syntax, diction, capitalization, definitions, and punctuation - should be performed on legal standards to derive the true legislative intent (or, in this case, the intent of the Founding Fathers). Thomas deals with history and original meaning, which the Court seemingly has little answer for or use of. Thomas, however, also shows that he is a realist. He forecasts that this policy will be adopted by the elites as a new weapon against the less privileged. I pray that he is not correct, but I can see little way outside of state protections that his unfortunate vision is not realized.

I was glad to see Justice O'Connor quote from Justice Chase's opinion in Calder v. Bull, a 1798 property rights decision:

"An ACT of the Legislature (for I cannot call it a law) contrary to the great first principles of the social compact, cannot be considered a rightful exercise of legislative authority . . . . A few instances will suffice to explain what I mean. . . . [A] law that takes property from A. and gives it to B: It is against all reason and justice, for a people to entrust a Legislature with SUCH powers; and, therefore, it cannot be presumed that they have done it."

Amen. It is against all reason, and a legislature wouldn't do such a thing. But an out-of-control judiciary did.

All in all, freedom took a hit today in America.

UPDATE: Relating back to Jay Bush's observations above, an e-mailer reminded me that Ed Bryant was endorsed by the League of Private Property Voters during his last campaign, scoring 100% on the LPPV's voter index every year that he served in the Congress. Accompanying the endorsement was this statement from then-LPPV Chairman Donald Fife:

"Ed Bryant is a solid, dependable Congressman who has stood up for the rights of land owners through thick and thin. We know where he stands, and he has done a great job in Washington, DC. I strongly encourage Tennessee voters to send him to the Senate."

Thanks for the heads-up, loyal readers!

MORE: John Brown has an astute observation - maybe we are just renting our property and don't own any of it.

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