Monday, February 28, 2005
Or, a reason lefties can hate the left wing the SCOTUS
But that isn't why New London wants to tear down the 112-year-old Victorian that Susette Kelo worked so hard to renovate, or the house at Walbach and East streets where Wilhelmina Dery has lived for all of her 87 years. The city doesn't want their land for a public facility or a new road. It simply wants the expanded tax base and economic growth that will come with new development. Can that be what the Constitution means by "public use" — the trickle-down benefits of private use?
Once, Supreme Court justices would have given short shrift to such a claim.
"The despotic power . . . of taking private property when state necessity requires, exists in every government," Justice William Paterson wrote in a 1795 case, Vanhorn's Lessee v. Dorrance, but the state must not invoke that power "except in urgent cases." He could not imagine any situation that would justify "the seizing of landed property belonging to one citizen, and giving it to another citizen. . . . Where is the security, where the inviolability of property, if the legislature . . . can take land from one citizen, who acquired it legally, and vest it in another?"
But there is no echo of Paterson's spirited defense of property rights as the justices consider Fort Trumbull.
When Bullock argues that New London wants to throw people out of their homes for the sake of ordinary economic development, Justice Ruth Bader Ginsburg asks why that's a problem. New London is depressed, she says; what's wrong with trying to "build it up and get more jobs?" If the city could buy property on the open market and turn it over to a developer, wonders Justice David Souter, why can't it use eminent domain to achieve the same end? Justice Stephen Breyer notes that there is bound to be some public benefit from almost any land taking. Isn't that enough to satisfy the Constitution's "public use" requirement?
Once, Supreme Court justices would have given short shrift to such a claim.
"The despotic power . . . of taking private property when state necessity requires, exists in every government," Justice William Paterson wrote in a 1795 case, Vanhorn's Lessee v. Dorrance, but the state must not invoke that power "except in urgent cases." He could not imagine any situation that would justify "the seizing of landed property belonging to one citizen, and giving it to another citizen. . . . Where is the security, where the inviolability of property, if the legislature . . . can take land from one citizen, who acquired it legally, and vest it in another?"
But there is no echo of Paterson's spirited defense of property rights as the justices consider Fort Trumbull.
When Bullock argues that New London wants to throw people out of their homes for the sake of ordinary economic development, Justice Ruth Bader Ginsburg asks why that's a problem. New London is depressed, she says; what's wrong with trying to "build it up and get more jobs?" If the city could buy property on the open market and turn it over to a developer, wonders Justice David Souter, why can't it use eminent domain to achieve the same end? Justice Stephen Breyer notes that there is bound to be some public benefit from almost any land taking. Isn't that enough to satisfy the Constitution's "public use" requirement?
