Big brother is taking from you -- or the tax and spend Demos at the Court

I've been carefully reading the decision in Kelo v. City of New London, which Justice Stevens authored, and have been spitting and sputtering. I've got little marginal notes all over my copy about the difference between previous takings that the Court authorized, which tended to envision a concrete, immediate benefit (freeways, railways, industrial access), as opposed to the current, hypothetical "maybe the economy will improve" scenario. Even in those situations where the Supreme Court authorized blatant redistribution of wealth, the benefit was immediate. The most obvious example of the latter situation is a case on which Justice Stevens relies heavily, Hawaii Housing Authority v. Midkiff, 467 U.S. 229 (1984). In that case, Hawaii enacted a statute under which the legislature said that landlowners would be forced to transfer title to their tenants (for a price) whether or not they wanted to. Even the normally insane Ninth Circuit baulked at this one. It characterized this as "a naked attempt on the part of the state of Hawaii to take the property of A and transfer it to B solely for B's private use and benefit." The Supreme Court, though, took the social engineering bit in its teeth and ran with it. It stated that case that it was perfectly acceptable for the State to eliminate the "social and economic evils of a land oligopoly." (Hawaii Housing Authority, 467 U.S. at 241-242.) Even in that extreme case, though, the envisioned benefit was instantaneous -- the oligopoly was broken, and the public good was presumably benefitted as of that minute. What distinguishes the current case is the tentativeness of it all. In the very first sentence, Justice Stevens notes that there is no immediate or obvious benefit to be derived from dispossessing the homeowners (one of whom has lived in her home since 1918): "In 2000, the city of New London approved a development plan that, in the words of the Supreme Court of Connecticut, was 'projected to create in excess of 1,000 jobs, to increase tax and other revenues, and to revitalize an economically distressed city....'" (Emphasis mine.) And again, in writing of the plan that led to the eminent domain seizure, Justice Stevens notes that the planners "intended the development plan to capitalize on the arrival of the Pfizer facility and the new commernce it was expected to attract." (Emphasis mine.) To dispossess people based on the remote possibility that some money might come down the government pikeway in the future, in the form of increased taxes, strikes me as almost immoral. As the Petitioners put it in their (unfortunately unsuccessful) brief:

Petitioners advocate a bright-line rule that the possible increase in taxes and jobs does not qualify as a public use. If, however, this Court finds that economic development can qualify as a public use, it should still reject these condemnations. Respondents seek to take Petitioners' homes for an office building that will not be built in the foreseeable future, if ever, and for some other, unidentified use. With no reasonably foreseeable use and no standards to ensure that "economic development" will ever result from these condemnations, Respondents seek to remove Petitioners from their homes on the assumption that someone will figure out what to do with the property later. Economic development condemnations bring enormous social costs and significant constitutional risk. At the very least, there must be a reasonable certain of realization of the "public" benefits used to justify the takings in the first place. Here, there is no such reasonable certainty.

Justice Stevens swats off these concerns with the back of his hand using nonresponsive gobbledy-gook to show his confidence that Big Brother government -- which has never shown any financial savvy in the past, in this country or in others (witness the European economies) -- knows what is best:

Orderly implementation of a comprehensive redevelopment plan obviously requires that the legal rights of all interested parties be established before new construction can be commenced. A constitutional rule that required postponement of the judicial approval of every condemnation until the likelihood of success of the plan had been assured would unquestionably impose a significant impediment to the successful consummation of many such plans.

Sounds good, doesn't it? But think about the difference between a freeway that will definitely be built, so it's a pretty damn sure thing, and a good economic bet even for a government to take, and the possibility that an office park might, at some point in the future, be built, and that it might bring in business and profits that could possibly increase the community's tax base. What kind of standard is that? I leave the last words to Justice O'Connor, who opens her dissent as follows:

Over two centuries ago, just after the Bill of Rights was ratified, Justice Chase wrote: 'An ACT of the Legislature (for I cannot call it a law) contrary to the great first principles of the social compact, cannot be considered a rightful exercise of legislative authority . . . . A few instances will suffice to explain what I mean . . . . [A] law that takes property from A. and gives it to B: 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.' Calder v. Bull, 3 Dall. 386, 388 (1798) (emphasis deleted). Today the Court abandons this long-held, basic limitation on government power. Under the banner of economic development, all private property is now vulnerable to being taken and transferred to another private owner, so long as it might be upgraded -- i.e., given to an owner who will use it in a way that the legislature deems more beneficial to the public -- in the process. To reason, as the Court does, that the incidental public benefits resulting from the subsequent ordinary use of private property render economic development takings 'for public use' is to wash out any distinction between private and public use of property -- and thereby effectively to delete the words 'for public use' from the Takings Clause of the Fifth Amendment. Accordingly I respectfully dissent.