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.