There are many issues today that define, divide, and delineate the current political landscape. For years, issues like abortion and affirmative action have caused people to take sides, with newer issues like gay marriage and the war in Iraq strengthening this separation along political and philosophical lines. Yet, there is one issue that isn't as politically sexy, and therefore, doesn't get as much attention...from the media or the public....this is the issue of eminent domain through judicial activism. Now, it is my opinion that many of the aforementioned problems have been created by an overly active and political judiciary, but this will be left for another post. Here, I want to discuss one of the most recent tentacles to reach forth from the judicial activist beast... that of eminent domain. Here is a brief exposition of my thoughts on the matter:
1. History and definition. A concise definition of eminent domain(E.D.) is...Right of a government entity to seize private property for the purpose of constructing a public facility. Federal, state, and local governments can seize people's homes under eminent domain laws as long as the homeowner is compensated at fair market value. Some public projects that may necessitate such Condemnation include highways, hospitals, schools, parks, or government office buildings. In short, we've seen a rise recently in local and state governments claiming eminent domain to obtain private property(usually houses) so that a shopping mall, or some other 'economically advantaged' edifice, can be built. While the idea behind E.D. isn't a new one, the rapid and continual employment of the idea...and the current method of employment...have turned heads in the legal community for a couple of years now. For more information regarding previous cases that lead to the Supreme Court's treatment look here.
2. Kelo v. City of New London. The Kelo case is the definitive precedent setting case, as it is the most recent and comprehensive treatment of the issue by the Supreme Court. The basic facts of the case are fairly representative of the 'average' E.D. case....New London had fallen on hard times economically. In 1998, Pfizer showed interest in building a plant near town, and New London saw this as an opportunity for growth and economic revival. To encourage Pfizer, the city developed a plan to 'expropriate' private property from the Fort Trumbull neighborhood in order to build a resource facility to entertain and house Pfizer employees. In all, 15 houses out of 115, and their occupants, would be displaced...against their will. You see, they didn't want to sell, but were forced to under the guise of E.D. and public benefit. The occupants sued and lost. They appealed to the Supreme Court of Connecticut ....and lost. They, then, appealed to the U.S. Supreme Court....and lost.....forcing them to take what compensation that the government decided was 'appropriate'.
3. Philosophical objections. There are many for me...but, really, they all stem from the same overriding problem....that of a government confiscating private property and shielding itself from the owners of said property by using an unelected and politically active judiciary.
A. Confiscation of private property. The basic tenet for capitalism, democracy, and freedom is individual property rights. From Hobbes to Locke...Harrington to Hume....there is an intellectual lineage pointing to the relational, and causal, leap from property rights to liberty. There is no...and I mean no...more important element to freedom and liberty from tyranny of the state than that of property rights of the individual. The mere idea of a government arbitrarily confiscating the private property of its citizens..for the 'public good' is nothing short of a betrayal of the philosophies of democracy and freedom, and is communism in practice and effort. In fact, the textbook definition of communism is... A theoretical economic system characterized by the collective ownership of property and by the organization of labor for the common advantage of all members.
B. Protection coming from an unelected judiciary. Not only is it egregiously offensive to the philosophy of liberty to confiscate personal property, but to do so under the protective umbrella of a politically active...and unelected...judicial branch is simply repulsive. In this process, one is not just deprived of property due him, but also of any recourse for the action. This by definition is... tyranny.
4. Practical objections. Here are just a few:
A. Public 'use' or public 'purpose'. The Takings Clause found in the 5Th Amendment allows for the "taking of private property by the government for public use...with appropriate compensation...". Yet, in 1954, the U.S. Supreme Court redefined this statement to mean 'public purpose'. In effect, this removed a necessary component of the clause...that a demonstrable need be shown...in strictly definable terms...i.e. building a specific road.....to take private property. We can look to Kelo for an example of the effects of this kind of interpretation....which leads me to....
B. Taxes. The current interpretation of the Takings Clause by activist judges results in a decision like Kelo. Meaning, the city of New London had a tax flow problem, and found a way to change this...by confiscating the personal property of its citizens. I'm not as well versed in these types of decisions as others, but to my knowledge, under the previous, or stricter, interpretation, taxes wouldn't have satisfied the legal definition of 'public use'....as the onus would be on the government to show exactly how the money was going to be put to use. Under the 'public purpose' interpretation, though, there is no need for the government to show any of this...which is perfect, as government agencies have no idea where most of our taxes actually go...and, if they do, are loathe to disclose this information. Simply, taxes are generally not for public use specifically....they are gathered for the continuance of whatever government policy or project needs funding at that time...and this changes often. Now, there may be some benefit for the public...but the fact is that with taxes constricted... government has to constrict....when taxes are expanded...government is able to grow. What we have here is an example of the government instituting a policy for its own growth...on the backs of its citizens.
C. The idea of compensation. My gripe is very simple....that the government is able to come in and take your property....and they are the ones that decide what is 'just compensation'. Allow me to give you a brief example. A close relative of mine recently had the city/county come to him and decide that a storm drain needed to be built on his property and claimed eminent domain. In short, they offered compensation, but the number they came back with was 20% of the appraisal that he received from three independent parties/appraisers(this is important as the number is based on how much the drain will reduce the overall value of his property). This relative fought the city/county in court and won. When speaking with him about this, he was reflecting on this ridiculous experience and said, "...you know, the bad thing is that if I didn't have the money and time to hire an attorney and fight them...I would've had to accept their offer....I bet people are getting cheated all over the place...". Unfortunately, he is right.
5. Final thoughts. The current use of eminent domain as a tool for the government to expand its tax base and/or investment potential is not just constitutionally wrong , but is contrary to the very idea of individual liberty. We, as citizens, and individuals, in a larger community, need to be more vocal about this issue and supportive of others who are going through this. The government knows that, individually, people are weak and unable to fight a lawsuit with the force and might of government behind it. Simply, if we as citizens ignore this, and those who promulgate this type of governance, we will suffer.
Yet, there is a larger issue here. None of this would be possible without the politically active gavel of the liberal Left. In the Kelo case, the government won with a 5-4 majority...and one doesn't have to strain to figure out which judges sided with the idea of government seizure of private property. Those who believe and govern as if government itself is the primary solution to problems, and is, therefore, serving a 'higher purpose', are the very ones that believe that this policy is morally right. The larger philosophical and political idea here is that of socialism... to the end that individual rights be curbed for 'a greater good'. This is unacceptable, and should be exposed for what it is at every turn....tyranny.
* please excuse the 'e.d.'abbreviation...there was no way around it.
4 comments:
herodotus, this was one of two highly publicized SCOTUS decisions in June 2005, both of which I vehemently opposed. The other was Gonzales v. Raich, a split decision in favor of federal supremacy in state marijuana-legalization or -decriminalization legislations. Chief Justice Rehnquist dissented in both cases, though the Left objected only to GvR and not KvCNL, blaming Gonzalez, the Bush administration in general, and conservatives on the Court for the former. This is all, of course, intellectually dishonest. Individual freedom is curtailed in both decisions, but this is not the ultimate complaint of the majority of the Left. If such curtailment (some might say "tyranny") results in an ultimate "greater good," then violating the principle of individual rights is just fine. I will even go so far as to say that such tyranny is not their major objection in the case of GvR, but rather the broader, more vague principle of social liberalism, embodied in narcotic decriminalization or outright legalization. I am not in favor of such a program, or of ending the "war on drugs" per se, but I AM opposed to the continuing and increasing subjection of states' rights---of federalism---to central authority. The principle of eminent domain, I think we both agree, is certainly the more aggregious of the two, but I think they are both part of the same judicial ideology. And how dare anyone castigate the so-called conservatives on the Court for Gonzales v. Reich?! It is the constructionists (with the exception of Scalia, in this case) that are still maintaining what shreds of individual and state liberties we still enjoy. I hope Americans will wake up to this danger at some point. (Oh, wait...what can they do? Impeach or unelect such judges? Hmmm...)
testud- thoughts/reply:
1. in short, i agree with you...mostly. as you well know, the idea of a strong federalism is at the heart my truncated politcal philosophy. yet...
2. if memory serves...the gonzales case dealt primarily with interstate commerce ideas...with relation to the commerce clause. in addition... again, this is just from memory...there were a couple of other cases pending in lower courts that were 'tied in', so to speak, with this case....i think one had to do with personal possession of pornography. the overarching idea was that, though a specific intent to distribute wasn't shown, it is not necessary to trigger a justified suspicion that one could use the established illegal marketplace. now, i'm not saying that i necessarily agree with the decision, but this case, for me, isn't as offensive...legally, or otherwise.
herodotus, you're right that the interstate commerce clause was the basis of Gonzales' argument. In a dissenting opinion, Clarence Thomas negated the applicability of that principle to this case, as the defendant cultivated and distributed his "crop" only locally, not across state lines. The probable cause of "intent" to distribute across state lines was the loophole Gonzales successfully argued. I wasn't suggesting that this decision is as offensive or corrosive to personal liberties as the principle of eminent domain, just that they both seemed symptomatic of the so-called "liberals" on the SCOTUS and their penchant for elevating central authority above local government, favor for some "greater good," and disregard for local legislation. I also linked the cases for their chronological proximity, KvCNL following right upon GvR in June '05.
testud-
1. what's interesting for me in these two examples is the differing treatments by scalia. he has always been exceedingly supportive of police authority and patrol, but is also leary of an overreaching court in local/executive/legislative issues. here we see that dynamic at work. in gonzales, he sides with his tendency to police action...and with kelo he reverts to his federalist judicial construct. this is why scalia fascinates me....where the ginsbergs and thomas' are predictable, scalia has a 'nuanced' judicial philosophy. yet, he is treated as some sort of fundamentalist troglodyte by the left.
2. and yes... this is a perfect example of an intellectual dishonesty that is pervasive in most parts of the modern leftist/progressive political movement. in fact, i can think of no better example...chronologically, or otherwise.
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