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tOR Talk Radio
is a freelance writer and biologist in Cambridge, Mass. Mr.
Johnson holds a Doctorate in Molecular and Cellular Biology
from Baylor College of Medicine. He is a frequent opinion contributor
Events Online. His website can be found at macjohnson.com [go
to Johnson index]
All the Good the Public Needs
[Mac Johnson] 6/30/05
The great irony of America is that it has achieved so much public
good by letting people simply tend to their private business.
By contrast, the most disastrous social experiments
of our age –Marxism
and its less ambitious offspring-- have ruined so many private
lives by holding the “public good” so high that no
one life seemed to matter. But the public good is, in the end,
nothing more than the sum of several million seemingly insignificant
private lives. You cannot dispose of these individuals and their
individual rights and somehow increase the public good.
That is why last week’s Supreme Court decision in the
case of Kelo
v. New London, regarding government’s now
unfettered power of “eminent domain” is so disturbing –and,
frankly, so un-American. “Eminent domain,” of course,
is the power of government to seize the private property of citizens
against their will. This power has always existed in this country,
being rooted in Common Law far older than America itself, and
it is sometimes a necessary measure that must be taken to protect
the public good.
It is, however, a loathsome and dangerous practice,
subject to much abuse, and contrary to the more general principle
protection of private property rights that is so fundamental
to our society. So it has been –until now – fairly
limited in the United States. Historically, land was seized for
public projects –such as roads, military bases, canals,
or other public facilities. In many cases, these facilities must
occupy a very particular piece of land to be functional. And
(in principle, anyway) they are something a society cannot do
without. They simply must be built to have a nation of any worth.
But the case decided last week was not about public use. In
a 5-4 decision, the Supreme Court has made it legal for government
to seize the property of one citizen and deliver it (at a government
determined price) to another private citizen or corporation simply
because it claims the new owner might put it to better use.
Your house may be nice, but wouldn’t a strip mall be a
bit better? If the city council thinks so, you now have no choice.
You will sell to the mall developer whether you want to or not,
and you will be told the price. Anyone can now be openly forced
to “sell” his or her property to a politically more-favored
potential owner. Any farm might be better used as a resort for
rich folks. Any business might occupy the perfect spot for a
competitor’s business, which after a few “campaign
donations” could be deemed a better use of the land.
But what is a “better use” exactly? Specifically
mentioned in the Kelo case was the issue of “tax and other
revenues”. In this case, the city of New London, Connecticut
has decided to “revitalize” its downtown and waterfront
areas with grand new businesses and homes. Some evidently not
very vital people already have businesses and homes there, however,
so the city is using the power of eminent domain to take their
properties. They will then transfer these properties to the preferred
new development –which includes a hotel, a “small
urban village” of quaint shops and restaurants, and a “riverwalk” for
the residents of better, upscale housing. The current properties
are not blighted or run-down, but the city successfully claimed
that this land-grab benefits the public good, because the new
development, being worth more than the old neighborhood, will
pay more in “taxes and other revenues.” In other
words, people are being kicked out of their well-maintained homes
simply because the City wants to replace them with more efficient
The value of people can now be determined, it seems, by how
much money they can provide government.
After the City of New London’s victory in this case, governments
may now use eminent domain to cultivate taxpayers like some sort
of revenue garden. Those crops that don’t produce can simply
be weeded out and re-planted with a higher yielding taxpayer –or
the mayor’s brother-in-law, whichever suits the powerful
at the time.
This can now occur despite the fact that the
Constitution limits the power of eminent domain in the Fifth
Amendment, stating “nor
shall private property be taken for public use, without just
compensation.” It makes no mention of private property
being taken for someone else’s private use, an unthinkable
concept to the authors of the Bill of Rights. Indeed, the concept
of a law taking property from one person and giving it to another
was so obviously impermissible to the Founders that (as quoted
in the dissenting opinion in the Kelo case), Justice Samuel Chase,
appointed to the Supreme Court by George Washington, once used
it as a hypothetical example of the sort of thing that was so
outrageous that it would violate “the great first principals
of the social compact” from which all legislatures draw
their legitimate power to govern. Adding, “it is against
all reason and justice, for a people to entrust a legislature
with such powers; and, therefore, it cannot be presumed that
they have done it.”
Those who actually founded the United States
may never have thought to presume such a thing, but Justices
Souter, Kennedy, and Ginsburg –the five who voted for the
permissibility of the new power of eminent domain-- are not limited
in their presumptions by any such social compact.
Four Justices, however, stood against creating
a new power of government to assign land to preferred owners:
Scalia, Thomas, and Rehnquist -- the last three being the “conservative” members
of the court and O’Connor being at least right-leaning.
Cases such as this –which are about preserving the Constitutional
rights of ordinary individuals, rather than finding new rights
for criminals, promoting social causes from the bench, or expanding
the power of government—are precisely why it is important
that conservatives fight for new Justices that believe in the
clear limitations placed on government by the original intent
of the Constitution and its amendments.
The dreadful Kelo case did not have to be decided this way;
the left-leaning Justice Anthony Kennedy (perhaps best known
for his belief that he can use foreign law to decide US cases)
sits on the court today because Democrats in the Senate defeated
the conservative nominee Robert Bork in 1987.
It will be tempting for President Bush, when
the next Supreme Court vacancy soon occurs, to nominate another “moderate” like
Anthony Kennedy to make Senate confirmation politically easy.
I hope that Kelo v. New London reminds him that we have paid
for the one such compromise for 18 years now.
We need Justices that understand that the public good is best
served by preserving the rights of private citizens. tOR
This piece first appeared at Human
2005 Mac Johnson