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Eminent case of domain poisoning

- The Washington Times - Sunday, July 3, 2005

Do you know Nancy Pelosi? Her job is leading the Democratic members of the House of Representatives. They should have asked for references. Here's her reaction to the Supreme Court's recent decision on "eminent domain":

"It is a decision of the Supreme Court," said the Minority Leader. "So this is almost as if God has spoken."

That's not how Abraham Lincoln saw it: "If the policy of the government upon vital questions affecting the whole people is to be irrevocably fixed by decisions of the Supreme Court ... the people will have ceased to be their own rulers."

I'm with Abe. On this Independence Day weekend, the people might wish to give some thought as to how they might reclaim their independence from the godlike Supremes.

Rule by the judicial interpretation of principles is problematic enough for some of us. But rule by the judicial interpretation of lack of principles takes us to dizzying new heights. Last week, in two rulings, the Supreme Court decided that (a) displays of the Ten Commandments are constitutional and (b) displays of the Ten Commandments are unconstitutional.

Don't worry, all nine judges aren't that wacky, just the deciding vote in both 5-4 decisions. That belonged to Stephen Breyer, who nixed the Ten Commandments in Kentucky but gave 'em two thumbs up in Texas. His basis was that the Texas Commandments had been there 40 years and were thus part of "a broader moral and historical message reflective of a cultural heritage," whereas the Kentucky display was newer and "a more contemporary state effort to focus attention upon a religious text is certainly likely to prove divisive."

Really? Not as "certainly likely" to prove divisive as grandfathering the display of some Commandments but not others, so the only way to be sure yours is constitutional is to sue over it. For one thing, Justice Breyer didn't identify the year in which he believes the Commandments ceased to be constitutional -- 1968, 1973?

Or maybe a sliding scale? If you put up the Commandments before 1965, you can have all Ten; between 1966 and 1979, you can have six firm Commandments plus a couple of strong recommendations; from 1980 to 1991, it's two Commandments and a half-dozen lifestyle tips?

To be sure, the Supreme Court took other factors than the year of manufacture into consideration -- whether the display was inside or outside, whether it was surrounded by a full supporting cast of religious artifacts or secular knick-knacks, etc. But it's hard to discern any principles here, at least when compared to their one-size-fits-all abortion absolutism.

To the best of my knowledge, Justice Breyer has never claimed you can have a first-trimester abortion in the parking lot, but for the full partial-birth you must be indoors.

A couple of days earlier, the majesty of the law had turned its attention to "eminent domain" -- the fancy term for what happens when the government seizes the property of the private citizen. It pays you, of course, but that's not much comfort if you've built your dream home on your favorite spot of land. Most laymen understand the "public interest" dimension as, oh, they're putting in the new Interstate and they don't want to make a huge detour because one cranky old coot refuses to sell his ramshackle dairy farm.

But the Supreme Court's decision took a far more expansive view -- that local governments could compel you to sell your property if a developer's proposal would generate greater tax revenue. In other words, the "public interest" boils down to whether or not the government gets more money to spend.

I can't say that's my definition. Indeed, the constitutional conflation of "public interest" with increased tax monies is deeply distressing to those of us who happen to think letting governments access too much dough too easily leads them to create even more useless government programs that enfeeble the citizenry in deeply destructive ways.

Nonetheless, across the fruited domain, governments reacted to the court decision by sending the bulldozers round to idle expectantly on John Doe's front lawn: Newark. N.J., officials moved forward with plans to raze 14 downtown acres and build an upscale condo development; Arnold, Mo., intends to demolish 30 homes, 14 businesses and the local Veterans of Foreign Wars to make way for a Lowe's Home Improvement store and a strip mall developed by THF Realty.

Get the picture? New Hampshire businessman Logan Darrow Clements did. He wants to build a new hotel in the town of Weare, and he's found just the right piece of land -- the home of Supreme Court judge David Souter. In compliance with Justice Souter's view of the public interest, Mr. Clements' project will generate far more revenue for Weare than Mr Souter's pad ever could. The Lost Liberty Hotel will include the Just Desserts Bar and a museum dedicated to the loss of freedom in America.

I don't know about you, but the last time I was in Weare, N.H., I couldn't help thinking what the town urgently needs is a good hotel. If it will help the Board of Selectmen in their decision, I personally pledge to take the most expensive suite in the new joint for the first month it's in service. I'll be sluicing plenty of big columnist bucks around town, racking up big New Hampshire Meals Tax payments at Weare's finest restaurants and, along with my fellow guests, doing far more for the local economy than one ascetic, largely absentee bachelor like Justice Souter could. Indeed, under Judge Souter's definition, it would be hard to think of a property doing less for the public interest than his own house. So let's get on with putting his principles into action and with luck his beloved but economically moribund abode will be rubble by the end of the year.

North of Weare, by the way, many Granite State municipalities face problems with land that generates even less revenue than David Souter's. In small North Country towns like Warren, for example, half the land belongs to the White Mountain National Forest, and thus is off the tax rolls. Can the Select Board of Warren force the federal government to make way for a logging camp? Or even for a rusting doublewide for David Souter once he is booted out of Weare?

How does that banned-in-Kentucky Commandment go? "Thou shalt not covet thy neighbor's house, nor his ass." However, if thy neighbor is an ass and thou hast financing for a luxury hotel, covet away.

Lincoln was right about a robed state: a handful of whimsical commissars settling the rights of 300 million citizens is not republican government. This Independence Day, America needs a "new birth of freedom."

Mark Steyn is the senior contributing editor for Hollinger Inc. Publications, senior North American columnist for Britain's Telegraph Group, North American editor for the Spectator and a nationally syndicated columnist.