2005 June 23 Thursday
US Supreme Court Rewrites 5th Amendment And Reduces Property Rights

In the matter of Susette Kelo, et al. v. City of New London, Connecticut, et al. the US Supreme Court has decided to reduce property rights even further.

A divided Supreme Court ruled Thursday that local governments may seize people's homes and businesses against their will for private development in a decision anxiously awaited in communities where economic growth often is at war with individual property rights.

The 5-4 ruling assailed by dissenting Justice Sandra Day O'Connor as handing "disproportionate influence and power" to the well-heeled in America was a defeat for Connecticut residents whose homes are slated for destruction to make room for an office complex. They had argued that cities have no right to take their land except for projects with a clear public use, such as roads or schools, or to revitalize blighted areas.

This property rights violation is being carried out for the benefit of Pfizer.

In 1997, Pfizer, the giant pharmaceutical firm that makes such drugs as Zoloft, Viagra and Celebrex, began discussions with state and local officials about a $300 million research plant that would bring 2,000 jobs. It was the first time a major manufacturer had expressed interest in moving to New London in more than 100 years.

In a March 1999 letter, George Milne, president of Pfizer's Central Research Division, wrote that the company's New London expansion "requires the world-class redevelopment planned for the adjacent 90 acres," which included Kelo's neighborhood, encompassing about 115 properties. Milne said Pfizer needed a 200-room waterfront hotel, a conference center, a physical-fitness area, extended-stay residential units and 80 units of housing.

While Chief Justice William Rehnquist along with Antonin Scalia and Clarence Thomas dissented the surprise here is that on this case Sandra Day O'Connor opted not to go over to the Dark Side. But Anthony Kennedy decided to spend some time on the Dark Side so he along with John Paul Stevens, David H. Souter, Ruth Bader Ginsburg and Stephen G. Breyer voted for another reduction in property rights. The Supreme Court Legislature thinks governments know better what should be done with our property.

Jusice O'Connor's dissent even shows clarity of reasoning. She says the Court has deleted "for public use" from the Takings Clause. (and that link has the full decision)

Over two centuries ago, just after the Bill of Rights was ratified, Justice Chase wrote:

"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." Calder v. Bull, 3 Dall. 386, 388 (1798) (emphasis deleted).

Today the Court abandons this long-held, basic limitation on government power. 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. To reason, as the Court does, that the incidental public benefits resulting from the subsequent ordinary use of private property render economic development takings "for public use" 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. Accordingly I respectfully dissent.

Okay kids, that's clear enough isn't it?

O'Connor knows how this ruling is going to be used: "The beneficiaries are likely to be those citizens with disproportionate influence and power in the political process". She thinks the ruling makes a mockery of the intent of the Founding Fathers.

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. "[T]hat alone is a just government," wrote James Madison, "which impartially secures to every man, whatever is his own." For the National Gazette, Property, (Mar. 29, 1792), reprinted in 14 Papers of James Madison 266 (R. Rutland et al. eds. 1983).

Obviously James Madison and company made a mistake and the Supreme Legislature has taken the needed steps to correct their error. Here we have the uncorrected original 5th Amendment to the US Constitution.

No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.

Note that I've italicized the offending phrase. Now, if you have a printed copy of the US constitution, perhaps in some book, get some white-out or dark ink and just cover over the words "for public use". Your new, corrected, and in the minds of the majority of the Supreme Legislature, greatly improved version of the 5th Amendment should read as follows:

No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken, without just compensation.

That's the 5th Amendment Americans (and legal and illegal aliens in US territory) will henceforth live under.

Another part of the Constitution has been made optional by this and other decisions like it: The Constitutional amendment process. Article V needs to be rewritten to include mention of the ability of a majority of the US Supreme Court to rewrite the US Constitution at will.

Article. V.

The Congress, whenever two thirds of both Houses shall deem it necessary, shall propose Amendments to this Constitution, or, on the Application of the Legislatures of two thirds of the several States, shall call a Convention for proposing Amendments, which, in either Case, shall be valid to all Intents and Purposes, as Part of this Constitution, when ratified by the Legislatures of three fourths of the several States, or by Conventions in three fourths thereof, as the one or the other Mode of Ratification may be proposed by the Congress; Provided that no Amendment which may be made prior to the Year One thousand eight hundred and eight shall in any Manner affect the first and fourth Clauses in the Ninth Section of the first Article; and that no State, without its Consent, shall be deprived of its equal Suffrage in the Senate.

Though I can think of another alternative: Start impeaching Supreme Court judges. Make them defend their actions in trials in the US Senate.

Roger Pilon of the Cato Institute says now the government gets to decide if it can assign a better use to your property.

"With today's decision, no one's property is safe," said Roger Pilon, director of the Center for Constitutional Studies, at the Cato Institute, a Washington think tank. "Any time a government official thinks someone else can make better use of your property than you're doing, he can order it condemned and transferred," Pilon said in a statement.

Note that all the Supreme Court justices appointed by Democrats are firmly on the Dark Side on this decision while the justices chosen by Republican Presidents split on this with only some of them (Souter and Kennedy) going over to the Dark Side. This mirrors the larger role the Democratic and Republican Parties play in contemporary America. On some subjects the Republicans are just as bad as the Democrats.

You can read all the original court papers filed for this case.

Share |      By Randall Parker at 2005 June 23 10:31 AM  Civilizations Decay


Comments
Invisible Scientist said at June 23, 2005 11:49 AM:

Randall Parker:
------------------------------------------------------------------------------------
""With today's decision, no one's property is safe," said Roger Pilon, director of the Center for Constitutional Studies, at the Cato Institute, a Washington think tank. "Any time a government official thinks someone else can make better use of your property than you're doing, he can order it condemned and transferred," Pilon said in a statement."
------------------------------------------------------------------------------------

It seems to be that when a government official thinks that A can make better use of the property of B, and hence decides to transfer that property to A, it is often not the case that A does not really represent the interests of the majority, and A who gets the lion's share of the benefit of making "better use of B's property", happens to be a small minority elite. There is no socialism here.

Ryan said at June 23, 2005 12:04 PM:

By blurring the lines of distinction between what is and is not "public use", they have opened the door (further) towards socialism.

Stephen said at June 23, 2005 3:55 PM:

Randall, I think your article is a bit of a one-sided characterisation.

You say, "This property rights violation is being carried out for the benefit of Pfizer.", but in reality the courts of original jurisdiction found that it was a civic reconstruction effort developed by local government. For instance, the Supreme Court quoted the lower courts' decisions:


The record clearly demonstrates that the development plan was not intended to serve the interests of Pfizer, Inc., or any other private entity, but rather, to revitalize the local economy by creating temporary and permanent jobs, generating a significant increase in tax revenue, encouraging spin-off economic activities and maximizing public access to the waterfront). And while the City intends to transfer certain of the parcels to a private developer in a long-term lease which developer, in turn, is expected to lease the office space and so forth to other private tenants—the identities of those private parties were not known when the plan was adopted.

Also, you make it sound like the decision is a new interpretation, when it is in fact it is merely a reiteration of a precedent set 100 years ago when the Supreme Court decided that "public use" was too hard to interpret in a complex economy and that the original authors really meant "public purpose".

Therefore, the decision itself falls into the 'nothing to see here' category.

That said, the there is a problem, and the better argument would have been that the decision 100 years ago to interpret "public use" as "public purpose" was flawed and should have been overturned.

Stephen said at June 23, 2005 4:08 PM:

For the record, I prefer a narrow interpretation of 'public use' - ie I agree with the thrust of the article, just not with the examples being used.

However, I can see where the Court is coming from - ie once you accept that 'public use' includes compulsory acquisitions for essential infrastructure (ie a privately owned railway line), then exactly where do you draw the line?

Ned said at June 24, 2005 5:18 AM:

At least it's nice to see O'Connor lining up with the true conservatives on the Court, although this decision does not have a clear liberal-conservative slant. "Business" conservatives may like it because it favors a big multinational corporation, and liberals may favor it because it expands the power of govewrnment over private property. Personally, I think the decision stinks. It illustrates why appointments to the courts are so important.

dearieme said at June 24, 2005 10:05 AM:

Invisible Scientist: on the contrary, that's "real, existing socialism" in the form that it always takes

Braddock said at June 24, 2005 10:47 AM:

Bummer.

Ned said at June 24, 2005 1:45 PM:

"nor shall private property be taken for public use, without just compensation."

- Fifth Amendment, US Constitution

First of all, I'm sympathetic to the city of New London, an economically depressed area that's had very little private sector job creation in recent times. The jobs and tax revenue will certainly be welcome. That said, I still think the decision stinks. If all the land were to be used for public waterfront development, the case would never have gone to court. The issue that cuts to the core is that most of the land will be used for private development or the expansion of the Pfizer plant. Pious declarations that that the land grab was not primarily intended to serve the needs of Pfizer or that the identities of the developers were not known at the time are meaningless. Note that there is nothing now that prohibits Pfizer or the private developers from buying (or attempting to buy) the land they seem to covet. They are perfectly free to approach the owners, either right up front or through shell corporations, and attempt to buy what they seek. The owners may or may not choose to sell, but, given enough financial incentive, they will probably agree. When, many years ago, the Disney Corporation wanted to buy land for its theme parks in central Florida, it didn't approach the state and ask it to condemn this land and give it to Disney. No, Disney quietly bought the land through a series of shell corporations so that no one would know who was buying and so drive up the price. This was (and is) perfectly legal. But I wonder if Disney (or any other big corporation) would do it that way now. No, they would bully the appropriate governmental body, talk about all the jobs and taxes they were going to bring, and threaten to go elsewhere if they didn't get what they wanted.

Roger Pilon of the Cato Institute got it right. What the government is essentially being allowed to do is to pick winners and losers among competing private interests - the government feels that this parcel of land will be more productive in the hands of drug manufacturers or land developers than homeowners. Governments are notoriously bad at this. Pfizer and the developers are going this route because its cheaper and faster than negotiating with a bunch of property owners, and I don't blame them for trying. But the Supreme Court should have known better. Elected governments sometimes have a tough time standing up to this kind of pressure ("City Loses 500 New Jobs Because Council Fails to Act!"), but the courts should be able to.

By the way, I note that Pfizer has just announced the closure of a big facility in Holland, Michigan, leaving the plant vacant and eliminating hundreds of jobs. I wonder if the same thing could happen in New London?

Paul said at June 24, 2005 8:29 PM:

I am literally stunned beyond words by this ruling. So long, Fifth Amendment.

And for those who think Randall and I are exagerating, keep in mind that this new power granted to city governments to sieze property doesn't apply only blighted areas. It can now be used for any properties that an alderman might think would generate higher tax revenue as a casino or shopping center. That's "for public use," isn't it?

Ned said at June 28, 2005 12:32 PM:

Someone is trying to persuade a town in New hampshire to condemn Justice Souter's house so a hotel can be built! I love it!

http://www.freestarmedia.com/hotellostliberty2.html


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