Thursday, February 24, 2005

Who disturbs my slumber???

There must be something really interesting going on for me to awaken from my winter hibernation!

And indeed there is. To wit: the case of Kelo v City of New London (CT), which takes a look at the "limits" to which ANY LEVEL of government can use the 5th amendment "freedoms" of Eminent Domain for their purposes. For in-depth background and on-the-scene reaction from the arguments presented yesterday, read SCOTUSblog.

This is why I'm writing today: this issue disgusts and intrigues me on an intellectual level. Now I know that the appeals process is a strange animal, where the ruling on a case is less about the actual merits of the case than it is about the lower court rulings and prior similar rulings from the SC. In this particular instance (and inferring from Marty Lederman's observations linked above), while it is hard to exactly determine how the Justices feel about the local governments assertion of Eminent Domain in this case, it is pretty much understood that the majority of the Supremes will not move to overturn earlier decisions by the SC which essentially grant local governments carte blanche in using the practice in question.

Why all the hubbub? First of all, this is a sickening display of the temporary nature of "ownership" in the face of "progress" as determined by politicians. The city evicted the people living in 15 homes in a fairly low-output economic zone essentially because they felt that the land could be put to more profitable purposes--not because of poor upkeep by the owners (which has been used in the past) or through any other fault of the owners. After two lower court decisions, the case has now been transformed into the following key question: can economic development ALONE be used as a valid reason to engage in the practice of Eminent Domain? According to the CT Supreme Court, that answer is yes--unanimously.

(Note: the decision at the CT Supreme Court level was NOT unanimous--but the idea of economic development as a valid reason for ED was agreed upon even by the dissenting judges)

Do you get that? According to the CT Supreme Court (and possibly the U.S. Supreme Court, depending on how this decision is written), any city that sees a need for development of land for economic purposes (by which I mean places of commerce, like shopping malls and restaurants--but which COULD BE greatly abused in the future to place some high-priced (i.e. highly-taxed) homes in a primo location currently occupied by lower-taxed owners. Didn't CA have an issue with this similar problem a few years ago???) is free to take whatever land they wish in the exercise of Eminent Domain.

This is wrong on SOOOO many levels! But I'll take the highest-minded level in my rant today: the SCOTUS has, through two other property-rights decisions and possibly a third on this case, refused to step in and rule against the "interests" of a local legislature. If this ruling goes against Kelo, it will be the largest gift yet to local governments, granting them virtually unchecked power to seize land from private owners for almost any reason. And I can understand, on some level, the desire for the SC to choose to stay away from overruling the express desires of an elected governing body--but a) that hasn't stopped them before; and b)what about checks and balances? By saying that the local government is the last word on the interest of a locality, the Supreme Court is taking itself (and the entire judicial system) out of the picture to ensure proper treatment of that locale's citizens. And that isn't how the system is supposed to work, at least not according to how I remember that week in my high school social studies class.

All I know is this: if I lived in a rural part of a county that was experiencing quick economic growth, I'd be looking really hard at how I could turn my private property into a business interest--and fast!


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