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Analyzing the Kelo v. New London Decision PDF Print E-mail
Written by Steve Dittmer   
Tuesday, 27 September 2005
AFF Sentinel Vol.2, #46

Themes on Individual Private Property Rights in America

In our last Sentinel discussing the importance of Supreme Court nominees to the long- term fate of agriculture, we described briefly the Kelo v. New London Supreme Court decision as a shocking blow to private property rights.

To those of us non-lawyers, Kelo might have seemed like a bolt out of the blue, a hard-to- comprehend assault on the rights of American citizens. However, reading the majority opinion of the Supreme Court for the Kelo case is even more of a shock. The private property rights most Americans are certain were embedded in the bedrock of the Constitution have in actuality been gradually taken away from us beginning over 100 years ago. State legislatures, state courts, appellate courts and the Supreme Court have been reducing individual property rights and broadening government power - or allowing it to be broadened -- until the pile of precedents leading up to Kelo made it relatively easy for justices sympathetic to ever increasing government influence to decide the way they did.

In Kelo, the Supreme Court extended the power of eminent domain to allow a city government to take property from private citizens and give it to another private non-profit entity, and in part to private companies, to enhance the tax base and create jobs. The taking -- to pave the way for hotels, restaurants and office buildings -- is in stark contrast to most people's definition of "public use" as a highway, airport, railroad, etc.

In general, a few themes stand out in a reading of the majority opinion. For one, precedent means a lot more to judges and lawyers than it does to the average citizen. It has an almost sacred air about it, as if it is more important that precedent be satisfied than the original law or the constitutional provision in question. Whether the line of precedent is leading in the wrong direction seems to, over time, become beside the point.

It seems analogous to an animal's pedigree. As generations go by, the result may be straying far away from the original intended path. But reverence for the ancestry of the line itself blinds people to the deviation from the original intent.

The legal community also takes comfort in the stability of the line of precedent. "We have held" is a common phrase many justices use to refer to past Supreme Court decisions. As nominee John Roberts underlined during his confirmation hearings, the legal community finds it disturbing for any decision not to follow precedents.

Another theme is the worship of a detailed plan. The majority opinion continually refers to the detailed plan the city of New London had assembled for the redevelopment of the neighborhood in question, as if the plan was the key, not the individual rights of the landowners involved. It is an eerily similar mindset to the deference courts have shown to the detailed plans of environmentalist groups or government agencies to preserve some relatively inconsequential species or habitat and trample the rights of human citizens. It seems that, as former attorneys, the justices are overly impressed with the volume and complexity of a plan, such that it only requires enough secondary bases be covered to justify a taking of private property. That the plan is all beside the point if individual private property rights are to be respected, gets buried under the pile of paper.

Still another theme is supposed to be one of the justifications for the ruling but instead looks like an excuse the Court uses for not adhering to the Constitution. The Court protests that it should not second-guess the legislature's decisions as whether or not to allow such a taking, yet it is exactly that function the Court should be performing. The Court was devised by the Founders as the defender of the Constitution, and the Constitution was designed to protect the rights of citizens from government at all levels. For the Supreme Court to hold that it's not its job to determine the validity of laws and actions by government legislative bodies is a copout, an abdication of its responsibility. And deciding that they can allow city governments to tell citizens that other people can make better use of the land on which their house sits than they are doing and they'll have to get out, is unconscionable and unconstitutional.

Whether citizens will have to undertake a state- by-state campaign to regain their lost property rights or whether a re-aligned Supreme Court will take the opportunity to revisit the issue in the future is an open question. Justice Clarence Thomas, for one, in his scathing dissent to the majority opinion, certainly hopes the Supreme Court gets another chance to redress the wrong done to individual property rights in the Kelo case. My guess is that concerned groups better press forward on both fronts. There is no time to waste and much to lose if we do not.

Next Time: How Did We Get to this Sorry State?

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