Many who wrote in the immediate aftermath of the Supreme Court's Kelo decision (see here for a sampling of links) have now taken a taken a step back for a more dispassionate analysis. I think a number of them are getting it wrong. (I am not going to name names and link posts. If you go through the sites in my original list of links you will see all of these arguments)

One argument I have read is that a good deal of the outrage stems from the stories if the individuals involved in this case. While I don't doubt that sympathy for the individuals being forced from their homes played some part in the reaction, attributing the outrage to that factor alone misses the point and vastly underestimates the thinking of those who are deeply troubled by this ruling.

This argument is usually offered hand in hand with the observation that takings for purposes of increased tax revenue are nothing new and the court is merely ratifying existing practice and precedent. Therefore the reaction must stem form the particulars of this case. Post hoc ergo proctor hoc. This thinking clearly, and surprisingly, disregards a concept that that has become quite popular in both amateur and professional punditry. The idea of the tipping point. There has been a constant erosion of property rights via regulation and eminent domain. This case represented perhaps the last chance to stop that erosion.

I was aware of the issue of municipalities taking property purely for a tax revenue gain. Clearly the facts of the Kelo case, stripped of the particular stories of the individuals involved, are not unique. It is an unfortunately old and too frequently told story. Many people, myself included, looked at these cases and were angered. But we were not without hope. However naive some think that hope to have been, the issue had not been decided. There was the hope that when it reached the court, tax revenue would be determined not to be public use and the practice would be brought to a halt. Now there is no avenue of appeal. The issue has been decided. The hope has been destroyed. For the average homeowner, there is little or nothing standing in the way of their town seizing their property to give it to someone who can generate more tax revenue.

I always felt our first house was at risk. It was located just over the line that separated a commercial zone from a residential. At the end of our street was an on-ramp for I95. The town is building a new station on the Metro North commuter line about half a mile away and development of the area is already booming. When we moved I put that concern aside. We live in a quiet residential neighborhood that got its start as a 1950's subdivision. A cluster of capes on small lots. Most of the houses have been renovated and expanded, having gone from their original 1200 square foot size to an average of probably 1800 - 2000 sf. The average price for a house on my street is probably about $650,000. (yes I happen to live in one of the most ridiculously expensive parts of the country.) Could the city see an increase in tax revenue by giving the land to a developer who would bulldoze the neighborhood and put up a dozen or so 3500 sf mcmansions that would probably sell for $1 million or better. Definitely. Does this concern me. Definitely. Am I pissed off that I even have to give this a second thought. Definitely.

People are undoubtedly looking at their own lives and their own property and realizing that if the government can stretch the concept of public use to cover just about anything then their rights to their property are at risk. How can anyone misunderstand why this upsets people?

Another argument that quite frankly has me a bit befuddled is centered around limited government/judicial restraint vs big government/judicial activism. Maybe its me, but some people seem to have this so completely backwards. I have read the argument that conservatives who wanted the court to rule against the town of New London were in the unusual position of advocating for judicial activism and bigger government. This argument holds that overturning the evolving practice of takings for tax revenue and the existing precedents would be an act of judicial activism. On the contrary, refusing to expand the definition of “public use” beyond any rational meaning would hardly be judicial activism. And if halting and overturning previous judicial activism is to be considered a bad thing, then what is the point of going through the fight to put originalists on the bench in the first place. Is it enough then for conservatives to say judicial activism stops now, but we wont try to undo any of the damage that has been done? I don't think so.

It is not enough to say we only want to prevent any further erosion of the Constitutional protection of our rights. Stopping where we are is not enough.

A third argument I have read is the Federalist argument. I have read that this is the right decision because what constitutes a “public use” should be determined at the local level. While I am a strong supporter of states rights and think more often than not the federal government interferes in in local matters too much there are some principals that to broad and too important to be left to patchwork of state and local policies. If this were an issue that was to be left to the states, the Fifth Amendment would not include the language in protection of property that it does. The fact that the courts have allowed the protection of property rights to be eroded away to virtually nothing does not change the fact that from the ratification of the Bill of Rights, they were protected Constitutionally.

I have not seen a decent argument yet to the effect that this was a good, or even reasonable decision. This is yet another instance of the government systematically eroding the rights of the individual. We are not people to them, we are revenue sources. And if we are not producing enough they will bring someone who will.

Posted by: Stephen Macklin at 02:48 PM | No Comments | Add Comment