< link rel="DCTERMS.isreplacedby" href="http://davejustus.com/" >

Thursday, June 23, 2005

Supreme Court Rules Cities May Seize Homes

Washington Post:

The Supreme Court today effectively expanded the right of local governments to seize private property under eminent domain, ruling that people's homes and businesses -- even those not considered blighted -- can be taken against their will for private development if the seizure serves a broadly defined 'public use.' In a 5-4 decision, the court upheld the ability of New London, Conn., to seize people's homes to make way for an office, residential and retail complex supporting a new $300 million research facility of the Pfizer pharmaceutical company. The city had argued that the project served a public use within the meaning of the Takings Clause of the Fifth Amendment to the Constitution because it would increase tax revenues, create jobs and improve the local economy.
This is a horrible decision and violates the entire concept of property rights.
In a strongly worded dissenting opinion, O'Connor wrote that the majority's decision overturns a long-held principle that eminent domain cannot be used simply to transfer property from one private owner to another. "Today the Court abandons this long-held, basic limitation on government power," she wrote. "Under the banner of economic development, all private property is now vulnerable to being taken and transferred to another private owner, so long as it might be upgraded -- i.e., given to an owner who will use it in a way that the legislature deems more beneficial to the public -- in the process." The effect of the decision, O'Connor said, "is to wash out any distinction between private and public use of property -- and thereby effectively to delete the words "for public use" from the Takings Clause of the Fifth Amendment."
I believe that this would be a textbook example of judicial activism. (via VodkaPundit, Will Collier has similar thoughts to mine.) Update: Honest Partisan has a different opinion.

11 Comments:

Blogger RFTR said...

I'm officially horrified.

6/23/2005 09:39:00 AM  
Blogger honestpartisan said...

Funny, I just finished posting the opposite reaction to this opinion. You can check it out there. I have one semantic yet serious bone to pick with you.

This is only "judicial activism" in the sense that this is a decision you disagree with. It's not judicial activism in the sense that most critics of judicial activism define the term. When the Warren Court overturned democratically-passed statutes (like those criminalizing abortion and birth control), the primary critique by people like Robert Bork was that such decisions take the determination out of the hands of democratically-elected legislatures and place them in the hands of unaccountable, undemocratic courts. I actually agree with this critique, and even though I think abortion should be legal, I think that Roe v. Wade was wrongly decided for this reason.

This decision that you deplore does not take a position on the wisdom of New London's proposal, which was formulated by a democratically-elected government. It merely states that that local government, not a federal court, is the appropriate forum for this dispute to play out. If you want the courts to step in and declare that a democratically-elected local government cannot do this, that's fine, but then you're the one who wants the courts to play an activist role, not your opponents. (Incidentally, the "constitution in exile" movement, conservatives like RIchard Epstein who want courts to do the same thing you want, embraces the label of "judicial activism.")

6/23/2005 09:56:00 AM  
Blogger Patrick said...

I agree, this is a lame decision. I actually enjoyed reading the AP article, because it didn't detail _who_ the justices were that decided for or against. That allowed me to make up my mind ahead of time.

When I found myself agreeing with Clarence Thomas, I was taken aback slightly, but it made me smile nonetheless :)

6/23/2005 10:33:00 AM  
Blogger Dave Justus said...

Judicial Activism

The view that the Supreme Court justices (and even other lower-ranking judges as well) can and should creatively (re)interpret the texts of the Constitution and the laws in order to serve the judges' own considered estimates of the vital needs of contemporary society when the elected "political" branches of the Federal government and/or the various state governments seem to them to be failing to meet these needs. On such a view, judges should not hesitate to go beyond their traditional role as interpreters of the Constitution and laws given to them by others in order to assume a role as independent policy makers or independent "trustees" on behalf of society.

If you accept that the term 'public use' in the constitution means something, than taking the undemocratic step of removing it from the constitution by the courts is classic judicial activism.

6/23/2005 10:35:00 AM  
Blogger Cubicle said...

so the surpreme court just said that corrupt city council could take a person's land to raise the tax base.

People are going to get shot over this one.

6/23/2005 10:46:00 AM  
Blogger honestpartisan said...

DJ, how is the interpretation of "public use" by the majority decision in this case "undemocratic", as you say? If you want the Court to overturn something that the local elected government is doing, OK, whatever, but I don't think you get the right to call that "democratic".

6/23/2005 10:56:00 AM  
Blogger Dave Justus said...

It is undemocratic because they have changed the meaning of the Constitution, something they do not have the right to do.

We have a democratic process for doing that. Supreme Court Justices do not have that power.

I will grant you that one can argue that they have not done this, that the term 'Public Use' either means nothing or means in some fashion an office complex for Pfizer. Since I believe 'public use' means general use by the public, such as a school, a government building or a park and not an corporate headquaters I believe the constitution has been changed in an undemocratic manner.

6/23/2005 11:18:00 AM  
Blogger honestpartisan said...

You might find this article interesting:

http://www.economicthinking.org/law/twoviews.html

It's from the Cato Institute, a libertarian think tank. It presents opposing arguments on the Courts passing judgment on economic legislation. Both Antonin Scalia and Richard Epstein, con and pro respectively, acknowledge that courts overturning economic legislation is undemocratic and judicially active. The difference is that Epstein is upfront about the fact that courts engaging in this type of behavior -- which he favors -- are being activist and that it's not democratic.

Judicial activism = decisions I don't like, or democracy = things I like doesn't work. If you divorce your personal feelings about an issue from the mechanism in which you deal with it -- a democratic legislature or courts I think you'll see my point.

6/23/2005 01:00:00 PM  
Blogger Dave Justus said...

I dislike the decsion because it changes the constitution without following the due process for changing the constitution.

Changing the rules in the middle of the game, even if I like the change in the rules is not right.

I don't believe that ruling with or against a democratic law is 'judicial activism' I believe that judicial activism is adding to, or taking away from, the Constitution. It is either finding new 'rights' or removing listed rights.

It is a Judge deciding that what he thinks is good should be what the constitution says, whether or not it says it. The popularity, or desirability of a ruling does not enter into the equation.

I will certainly grant you that I am more likely to notice rulings I disagree with, but for you to insist that that is the sole reason I oppose these rulings is, frankly, insulting.

6/23/2005 01:59:00 PM  
Blogger Vestigial Fish said...

I agree with Cube and Dave. My major beef with this decision is that it opens the doors wide for abuse.

Pissed off the local councilman? Guess what, your farm land gets transferred to a cattle rancher on the grounds that he will pay more taxes than you do. Want to build a highrise but the local yokels won't sell? Point out to city planners that you will be raising the property value, and hence the property taxes.

Although this type of abuse is not a new problem, this decision not only makes it much easier for people to seize land, but makes it much harder for the victims to fight back. After all, in terms of private transfer they can only say that it did not serve the public good AFTER the land has been taken, developed, and then had the project go tits up.

6/23/2005 02:17:00 PM  
Anonymous Anonymous said...

I have read all the comments
No one is asking the real question who got paid for this decision from the pill pushing giant

"Lets cut threw all the bull and get to the bottom line" as we say in Texas and find out the money trail. IT HAS NOTHING TO DO WITH THE CONSTITUTION ITS MONEY ISN'T IT .ALWAYS WITH WASHINGINTON?

6/25/2005 10:38:00 AM  

Post a Comment

<< Home