Friday, June 24, 2005

Eminent Disaster

The American supreme court has ruled "that fostering economic development is an appropriate use of the government's power of eminent domain" (New York Times). The idea is that the government can take land from private citizens and give it to private companies. Not surprisingly it was the more liberal judges who were for this. Scalia and Rhenquist were both opposed. I found the liberal justification for this action surprisingly Lockian: developers will make better use of the land than the citizens who were living there previously.

Funny story: in Israel, where a similar argument is being used to justify the expansion of Jerusalem and other cities, the liberals are radically opposed to the government's use of eminent domain.


jacob said...

It is actually somewhat surprising that liberal judges would support this. The NAACP and others filed briefs in opposition noting that these "landgrabs" (to borrow a term popular in Yehuda's part of the world) disproportionately hurt minroities.
The real shock is Justice O'Connor's strong dissent. The reason it is shocking is that she wrote the opinion in Midkiff - the case that started us on this road to the destruction of property rights. That is one of the reasons I dislike O'Connor. She tries to be "moderate" but utterly fails to see the slippery slope her precedent sets. In Midkiff she had no problem obliterating property rights so long as she saw it directly helping the "little guy." Now she complains that the court is allowing a community to take private property for private use. To analogize, I think if Sandra Day were a judge in Zimbabwe she would have support taking white farms from the few to give it to the poor black farmers without land so long as the legislature could show a public purpose and interest (that would not be hard). But, take a farm from a few black farmers (who are no longer productive on that land) to give to developers so that they can revitalize the neighborhood and she would be all up in arms. SDO tries to distinguish this case from Midkiff but does a bad job at that. Basically, she says that there was a real public interest in undoing the "oligopoly resulting from extreme wealth." You will notice that Thomas has a seperate dissent. It is a much better dissent in which he argues that Berman and Midkiff need to be revisited.
Those who know me, know that I am not a sensationalist and I do not state after each succesively worse SC decision that the country has gone to hell but last night I got very scared. You see this case completely destroys private property rights as we know them. (Anyone notice the NYT editorial that put scare quotes around "property rights?" Absolutley scandalous! Read the last two sentences in that editroial and tell me they couldn't have been written in support of the Bolshevik revolution.) Thanks to the SC and to the earlier precedent set by Midkiff and SDO there is no longer any concept of private property rights in America. All property belongs to the "public." I have more to say on this but I might save it for the blog i intend to create so I will just end with the frightening words of the dissent:
"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." Very very frightening indeed. Hopefully, this is the last time I post anything harsh.

kaspit said...

FYI my post on Clarence Thomas, with some links on the eminent domain case. Good shabbos all.

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