But I have been asked several times (because I am a lawyer, I guess) by non-lawyers what I think of the Kelo case just down from the Supreme Court. And I have given that a little thought. Now that I have gone as far as I can go, I set out my thoughts and ask for your help in thinking further.
Here's how the Washington Post summarized the issue in the Kelo case:
"Eminent domain" is a more technical term than "condemn" to describe the fundamental power and right of the government -- at various levels (municipality, county, state, or nation) -- to claim property belonging to a private party and then to convert it to the government's use. The property owners must be compensated, of course, but property owners are often dissatisfied with their remuneration -- for a variety of valid and invalid reasons. Thus, if my house sits in the path of planned highway, I can be forced to sell the property to the state (in Minnesota for the value of "highest and best use" of the property -- not necessarily the fair-market value). And there has been little controversy about the practice of eminent domain in situations involving roads, dams (for controlling floods, e.g.), and other projects that are clearly "public." All property rights are ultimately conditioned by the government's ultimate claim on the property.
The redevelopment program at issue in yesterday's case -- the plan of the Connecticut city of New London to turn 90 acres of waterfront land into office buildings, upscale housing, a marina and other facilities near a $300 million research center being built by pharmaceuticals giant Pfizer -- was also expected to generate hundreds of jobs and, city officials say, $680,000 in property tax revenue.
New London, with a population of about 24,000, is reeling from the 1996 closing of the Naval Undersea Warfare Center, which had employed more than 1,500 people.
But owners of 15 homes on 1.54 acres of the proposed site had refused to go. One of them, Susette Kelo, had extensively remodeled her home and wanted to stay for its view of the water. Another, Wilhelmina Dery, was born in her house in 1918 and has lived there her entire life.
What distinguishes the Kelo case is that New London doesn't plan to use the property it wants to condemn for a "public use" -- e.g., a road, a government building, or the like. It wants to take the property in order to give it to developers who will build more expensive properties on it. In this case, as I understand it (without having studied the opinion -- which I will do after I draw my conclusions!), the government fits hand-in-glove with private corporations to convert property from one set of owners to another. Wilhelmina, for example, wouldn't sell to the developer, and there was nothing the developer could do without the government's exercise of its "taking" power.
I'm not a student of eminent domain law, but this seems like a bit thing to me -- and a major change. Of course, the law has always been more than sympathetic with corporations and monied-people; that is a given that cannot be disproven. But there have been limits, and the court has often stepped in to maintain some balance. This case seems to shift the limits, again, in favor of the big powers. Now, it seems, I am no longer able to keep my lakefront property because it's only worth $300,000, and some developer wants to raze it and build a $1 million dwelling: If the government wants to benefit from the property taxes on the more expensive building (duh!), it can take the property and give it (in some way or form) to the developer (who will in turn reap a wonderful profit from the deal).
What seems even odder to me than the ruling in this case is that it was the liberals who handed down this decision, and it was John Paul Stevens, the most liberal of the justices, who wrote the opinion. Corporations are the darling of conservatives -- but Rehnquist, Scalia, and Thomas joined in O'Connor's dissent. They argued, per the Post, that the majority had tilted in favor of those with "disproportionate influence and power in the political process, including large corporations and development firms." I think they are most assuredly correct, and I haven't said that about Scalia in a long time (if ever --actually, I think I agreed with him in a flag-burning case, but I'll have to check).
It seems at odds with fundamental fairness that the "little guy" not only can't fight city hall, but that he can't now fight WalMart, either. It seems that there must be biblical issues involved here.
Among the biblical issues would be the seventh-commandment issue of stealing: The corporations will gain a windfall far in excess (not just in total dollars, but in percentages of investment) of that of the compensated land-losers. It evokes images from Amos, and Hosea, and Jeremiah. And coupled with that is the problem of government and corporation ganging up on the relatively poor and powerless: The same prophets decried such a combination -- even if the corporation as we know it now did not even exist in their era. But the confluence of big money and government underlay much of what they said. There is also the issue of the place of the weak in the face of the strong. In this country (in contradistinction to many places around the globe), we don't need to worry about the power of a soldier's automatic weapon placed in our face. We are, however, mere toys to the corporated bigwigs. The mixture of greed, disdain for anything but the bottom line, and a kind of general nihilism make much of corporate life spiritually killing.
I have not, I think, taken on the Supremes before -- well, not in this blog anyway. But this is a case that resulted in injustice. Now I'm going to read the case to see if was also wrong-headedly argued.