AFF Sentinel Vol.2, #48

Thomas, O'Connor Respect Constitution

In recent Sentinels about the Kelo v. New London Supreme Court decision and private property rights, we explained the implications and the precedents. Given the importance of Kelo and the disappointing precedents, is there much hope for private property rights in America?

Some good news is that the dissent opinion written by Justice O'Connor and another by Justice Thomas were thorough and convincing. Although O'Connor will certainly soon be out of the picture, Thomas is one justice who hopes to reverse the trend and is spoiling for a fight.

O'Connor and Thomas found both precedent and language in the Constitution to show the case could have been decided differently. O'Connor stated flat out that she felt economic development takings are not constitutional.

While O'Connor can see some justification for some of the precedent cases, Thomas cannot. Thomas felt the court has been headed down the wrong path for a long time and precedent is not a good enough reason to abuse Constitutional rights any further. O'Connor and Thomas differ on whether the government can take private property if the community is being harmed by the property, such as a blighted neighborhood. Thomas holds that such takings should be handled by nuisance laws, not the Public Use Clause that cities have been using to justify their takings.

O'Connor's bottom line: "...whatever the reason for the condemnation, the effect is the same from the constitutional perspective - private property is forcibly relinquished to new private ownership."

One of O'Connor's finest statements is a courageous stand. She noted the majority opinion suggested that property owners might turn to the states to affect limits on economic development takings.

"That is an abdication of our responsibility. States play many important functions in our system of dual sovereignty but compensating for our refusal to enforce properly the federal Constitution (and a provision meant to curtail state action, no less) is not among them."

Because the Court has effectively given broad license to legislative branches to authorize takings, O'Connor points out another aspect of this decision that has direct implications for cattlemen.

"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. `That alone is a just government, wrote James Madison, `which impartially secures to every man, whatever is his own.'"

And what groups have substantial funding and disproportionate political power in today's political climate? Environmental and endangered species groups certainly could find encouragement and empowerment in this ruling, it appears to us.

Thomas is blunt in referring to the precedent the court relied on in its decision.

"Today's decision is simply the latest in a string of our cases construing the Public Use clause to be a virtual nullity, without the slightest nod to its original meaning. In my view, the Public Use Clause, originally understood, is a meaningful limit on the government's eminent domain power. Our cases have strayed from the Clause's original meaning, and I would reconsider them.

"In my view, it is `imperative that the Court maintain absolute fidelity to' the Clause's express limit on the power of the government over the individual, no less than with every other liberty expressly enumerated in the Fifth Amendment or the Bill of Rights more generally."

"The most natural reading of the Clause is that it allows the government to take property only if the government owns, or the public has a legal right to use, the property...When the government takes property and gives it to a private individual, and the public has no right to use the property," then the definition of public use has been violated. Part of the land in question would end up as private office buildings, hotels and restaurants. Thomas holds that the Framer's intent as to public use did not include "if the public realizes any conceivable benefit from the taking."

Thomas said the Clause "embodied the Framers' understanding that property is a natural, fundamental right, prohibiting the government from ?taking property from A. and giving it to B.'" (Calder v. Bull, 1798; Wilkinson v. Leland, 1829 and Vanhorne's Lessee v. Dorrance, 1795) "The Takings Clause is a prohibition, not a grant of power..."

In fact, Thomas points out a ridiculous irony. The court has recognized "the overriding respect for the sanctity of the home" (Payton) "when the issue is only whether the government may search a home." Incredibly, "Though citizens are safe from the government in their homes, the homes themselves are not."

"When faced with a clash of constitutional principle and a line of unreasoned cases wholly divorced from the text, history and structure of our founding document, we should not hesitate to resolve the tension in favor of the Constitution's original meaning."

So what now? The House has already held hearings on a bill that would make government agencies that take property in this fashion ineligible for federal funding. Many states are in some stage of legislative or constitutional action - perhaps appropriate since it was states themselves abusing the Clause that created the problems in the first place.

The Supreme Court hears roughly 80 cases a year of the 10,000 requests it gets. With the close 5-4 vote on this case, two new justices coming on board and dissenting justices (also Scalia and Rehnquist) very unhappy with this result, perhaps one of the thousands of similar cases out there will rise to the Supreme Court level again.

Correction: In the last Sentinel, in the case of Hawaii v. Midkiff, we said that much of the ownership of the island of Oahu was split between governments and 72 private landowners. Actually, the 72 landowners were the entire state's landowners. The island of Oahu had 22 landowners.

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