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Thursday, June 23, 2005

Give It Away Now

It feels very strange to see a 5-4 Supreme Court system where I find myself agreeing more with the view of Justices O'Connor, Scalia, Rehnquist, and Thomas than with the other five justices.

The United States Supreme Court has ruled in favor of New London in the Kelo v. New London case.

I discussed this case at length in Febuary, at which time I concluded that the lower court had reached the incorrect decision.

While it's certainly accurate to suggest that I wouldn't trust a lot of courts with the ammunition that a ruling in favor of the plaintiffs would have provided them (note Justice Thomas' strong hits that he would like to see Midkiff and Berman overturned for instance), I still think this decision was wrong. (Come to think of it, you could say the same exact thing about Raich v. Ashcroft, the California medical marijuana case.) I would never have tagged Sandra Day O'Connor to have written the dissenting opinion in this case, but she more or less nails it in this sentence:

Any property may now be taken for the benefit of another private party, but the fallout from this decision will not be random...[the] beneficiaries are likely to be those citizens with disproportionate influence and power in the political process, including large corporations and development firms.

The majority opinion speaks of deference to local government decisions regarding land usage:

Just as we decline to second-guess the City's considered judgments about the efficacy of its development plan, we also decline to second-guess the City's determinations as to what lands it needs to acquire in order to effectuate the project.

And while it's a fair point to suggest that local governments might be better arbiters of public benefits than federal judges, the political process at the local level has shown itself to be an inadequate protector of rights time and time again.

That said, I'm not wailing and gnashing my teeth over this, and not just because there will be no precedent here that the "Constitution-in-Exile" movement will be able to use. This isn't the seismic shift in legal doctrine some people think it is; eminent domain law had long been assumed to be by and large outside the purview of the federal government and federal judiciary. Real property is a more or less a creature of state law and nothing about this decision changes that.

I would not expect a new rash of eminent domain condemnations; indeed, with the sort of publicity this case is already receiving, I would actually expect a new backlash against local government excercising eminent domain on behalf of private parties. But time will tell.


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