Wednesday, June 29, 2005

Supreme injustice

It is interesting to me that, in coverage of the US Supreme Court, pretty much the entire British media establishment, from the BBC to The Times, has written about the Court’s incoherent dual (dueling?) rulings on the display of the 10 Commandments, its unsurprising ruling on file sharing, and its refusal to involve itself in the Plame investigation, but not one media outlet here has covered what is to me the most important ruling of the session – the ruling that it is constitutional for local governments to force private property owners to sell their property to other private entities to make way for “economic” development.

The case involved a plan by the city of New London, Connecticut, to redevelop 90 acres of waterfront land into an upscale marina/office/living area by authorizing a private, non-profit entity, the New London Development Corp, to first establish a development plan for the area, and then to purchase the land so as to begin development. The problem was that several homeowners refused to sell. So the city delegated its eminent domain powers to the NLDC to seize the land. The homeowners sued, and the case landed in the Supreme Court. In a 5-4 decision, the Court ruled that the city’s use of eminent domain, or rather the NLDC’s use of it on behalf of the city, was constitutional, and the homeowners are therefore out of luck.

The ruling is a remarkable interpretation (if that is the correct word for pretending words mean something other than their plain meaning) of the Constitution’s fifth amendment, which allows the government to seize private property for “public use” provided “just compensation” is offered. The relevant question is whether a private development owned and operated by a private developer for use by private businesses and private individuals qualifies as a “public use”. The city of New London claims that it does, on the grounds that such a development would produce more jobs and taxes than it does currently, and would “revitalize” the city’s economy. Amazingly, the Supreme Court agreed with it.

It is worth noting that the majority on the Court was comprised of its left-wing, joined by “centrist” Justice Kennedy. Characteristically dispensing with any fidelity to the meaning of the words which comprise the document they ostensibly use to justify their decisions, the liberal justices also seem to have dispensed with the myth that it is the left which looks out for the little guy. After all, as Justice O’Connor pointed out in her dissent, it will be those with “disproportionate influence and power in the political process” who will reap the benefit of this ruling, since “the government now has license to transfer property from those with fewer resources to those with more.”

The ruling is even likely to result in lowering the threshold of “just compensation”. In the past, developers such as NLDC had to entice hold-out homeowners with more attractive buy-out packages. Now there is no incentive at all to make a bid more attractive, since it can ultimately just grab the property anyway through eminent domain.

It is an appalling ruling. Justice Scalia asked the New London lawyers, during oral arguments “You can take from A and give to B if B pays more taxes?" The answer, apparently, is yes. As Justice O’Connor put it, without any exaggeration, “Under the banner of economic development, all private property is now vulnerable to being taken and transferred to another private owner, so long as it might be upgraded--i.e., given to an owner who will use it in a way that the legislature deems more beneficial to the public--in the process.”

That strikes me as much more newsworthy, and as having far greater implications for the future of the nation, than whether or not the public will be able to catch a glimpse of the 10 commandments in a courthouse. Although, it must be said, the liberal members of the court could apparently use a refresher on those commandments, one of which says, if I recall correctly, something about not stealing.


Blogger Richard John said...

This sounds like a shocker. The kind of thing that happens in France (where private/public corruption at the expense of the little-guy is endemic) but not, one would have thought, in the US.

4:50 PM  
Anonymous Natalie said...

This decision by the Supreme Court has everyone in the US up in arms. This decision is one that Republicans and Democrats feel is completely unjust. The entire fabric of being a US citizen is woven with the concept of private property. I can tell you the state houses in every state are going to be inundated with calls to strenghthen state laws and statutes to curb this land grab by the greedy developers and corrupt local politicians!



4:51 PM  
Anonymous Mark said...

To follow up with what Natalie said, the Supreme Court decision also said that the states could place their own restrictions on imminent domain usage. I'm sure that property owners will be galvanized to act and toughen up those restrictions, and be mindful of them in the future.

I feel uncomfortable with this decision, but I don't own property. I'm uncomfortable with the principle of it. In the past, property has been seen as an almost inviolable right. There were a few cases where property could be taken, but they were demarcated and clear. What this decision does is in its broadest sense redefines the meaning of property. Property used to be seen as principly a private interest. Yes, property owners had to pay property taxes if one lived in a jurisdiction that charged it, and they had to apply for permits for certain modifications or uses of their property, if the local law required it, but otherwise it was the owner's property. I don't think that was ever in dispute. Now, with the way the Court has defined it, property can be viewed by a locality strictly as a revenue stream for the city! If the law allows it and the city deems that you aren't producing enough revenue for them, you're out. Fortunately they still have to pay you something for it, but, like TAE said, there's no incentive to pay anything but bottom dollar.

I think potential property owners who are looking to stay someplace for the long term are going to be looking seriously at which states provide the best level of protection for their property. They can't just live anywhere they want anymore.

The thing about this decision is it does not "legalize" the practice. This has actually been going on in various places around the country for a long time. For example, New York City has allowed this for decades. Several months ago CBS did some reports on this practice taking place in some moderate size towns. The property owners challenged it, and won in some cases, but they had to fight pretty hard. In all cases, the cities said they needed to do this for the economic health of the area. I guess the question I have is, is it essential? Is the town literally going to die if some people aren't pushed out? If not, I question the rationale for doing it at all.

The rationale that pushing people out and bringing in big developers is necessarily going to improve the economy I think is speculative. It could have the desired effect, but then again it may not. It could have the opposite effect of "the public good".

10:58 AM  
Anonymous Natalie said...

Further to what Mark concluded...
One only has to look to Atlantic City NJ to see that new developement does not necessarily lead to clean, robust new economies for the entire city...

12:26 PM  
Anonymous Anonymous said...

So, laws will be written in the states, only to be overturned by SCOTUS.

Look at the above link for a broader view of why the decision was made.

6:56 PM  

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