Saturday, July 2, 2005

You may own your own home and expect to live there the rest of your life. But keep your bags packed, because the U.S. Supreme Court has decreed local politicians can take your property away and turn it over to someone else, just by using the magic words “public purpose.”

We’re not talking about the government taking your home to build a reservoir or a highway for public benefit. The Constitution always allowed the government to take private property for “public use,” provided the property owner was paid “just compensation.”

What the latest Supreme Court decision does with verbal sleight-of-hand is change the Constitution’s requirement of “public use” to a more expansive power to confiscate private property for whatever is called “public purpose” — including turning that property over to some other private party.

In this case — Kelo v. New London — the private parties to whom the government would turn over confiscated properties include a hotel, restaurants, shops and a pharmaceutical firm.

These are not public uses, as the Constitution requires, but are said to serve “public purposes,” as courts have expanded the concept beyond the language of the Fifth Amendment — reflecting those “evolving” circumstances so dear to judges who rewrite the Constitution to suit their own tastes.

No sane person has ever denied circumstances change or that laws need to change to meet new circumstances. But that is wholly different from saying judges are the ones to decide which laws need changing, and how and when.

What are legislatures for except to legislate? What is the purpose of the separation of powers except to keep legislative, executive and judicial powers separate?

When the 5-4 Supreme Court majority “rejected any literal requirement that condemned property be put into use for the general public” because of the “evolving needs of society,” it violated the constitutional separation of powers on which the American system of government is based.

When the Supreme Court majority referred to its “deference to legislative judgments” about property takings, it was as disingenuous as inconsistent. If constitutional rights of individuals are to be waived because of “deference” to another branch of government, the citizens may as well not have constitutional rights. What are these rights supposed to protect the citizens from, if not the government?

This very court, just days before, showed no such deference to a state’s law permitting the execution of murderers not yet 18 years old. Such selective “deference” amounts to judicial policy-making rather than carrying out of the law.

Surely the justices must know politicians whose whole careers have been built on their ability to spin words can always come up with some words that will claim a “public purpose” exists in what they are doing.

How many private homeowners can afford to litigate such claims all the way up and down the judicial food chain? Apartment dwellers thrown out on the street by the bulldozers are even less able to defend themselves with litigation.

The best that can be said for the Supreme Court majority opinion is that it follows — and extends — certain judicial precedents. But, as Justice Clarence Thomas said in dissent, these “misguided lines of precedent” need to be reconsidered, to “return to the original meaning of the Public Use Clause” in the Constitution.

Justice Sandra Day O’Connor’s dissent points out that the five justices in the majority — Ruth Bader Ginsburg, Stephen Breyer, David Souter, John Paul Stevens, and Anthony Kennedy — “wash out any distinction between private and public use of property.” As a result, she adds: “The specter of condemnation hangs over all property. Nothing is to prevent the state from replacing any Motel 6 with a Ritz-Carlton, any home with a shopping mall, or any farm with a factory.”

In other words, politicians can replace your home with whatever they expect will pay more taxes than you do — and call their money grab a “public purpose.”

Thomas Sowell is a nationally syndicated columnist.

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