Monday, July 18, 2005

Property rights have become — quietly and suddenly — the battle cry for conservatives in the brewing fight over replacing retiring Supreme Court Justice Sandra Day O’Connor.

Conservatives say last month’s Supreme Court ruling that expanded the government’s power of eminent domain is now Exhibit A for their case that the high court has abandoned the original meaning of the Constitution and is in desperate need of more conservative jurists.

“It’s so bad, it’s good,” said Sean Rushton, executive director of the conservative Committee for Justice, which is dedicated to getting President Bush’s judicial nominees confirmed. “Property rights is now the number one issue.”

In Kelo v. New London, the Supreme Court ruled 5-4 that the government can seize private property from its lawful owner and give it to a private developer who promises to generate more tax revenue with it.

Since the presidency of Ronald Reagan, “conservatives have relegated property rights to the back burner,” said Nancie Marzulla, president of Defenders of Property Rights. “We feel like we have been laboring in the vineyards for years and then, all of a sudden, Kelo comes along.”

She called the ruling “a dark cloud” that essentially eliminates all property rights.

“But even with the darkest cloud, there is a silver lining,” Mrs. Marzulla said. “The timing of this has been just brilliant for us.”

In the Kelo case, the high court ruled that government officials could seize private property and give the land to private developers to build an office complex, a health club and a hotel. Prior to the ruling, eminent domain was legally restricted to only projects with a clear public use such as roads or schools.

“The city has carefully formulated an economic development that it believes will provide appreciable benefits to the community, including — but by no means limited to — new jobs and increased tax revenue,” Justice John Paul Stevens wrote for the majority.

Justice O’Connor wrote a scathing dissent.

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

The ruling has united a broad cross section of activists — from conservatives to the National Association for the Advancement of Colored People — outraged by the decision. In Congress, bills have already been introduced in the House and in the Senate to remedy the ruling.

Many liberals worry that the new powers of eminent domain will be used mainly to seize the property of poor people in urban areas. Conservatives are using the issue to rally around a conservative replacement for Justice O’Connor.

Judicial Confirmation Network, a newly formed group supporting Mr. Bush’s nominees, released an Internet ad last week saying the Kelo ruling is only the latest Supreme Court decision that has “violated the Constitution and undermined our democracy.”

Mark R. Levin, president of Landmark Legal Foundation, said the court has become the “guardian of big government, not the guardian of individual liberty.”

“A revolution was fought for a lot less than this,” he said.

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