Judicial Coup

While we were looking the other way, toward the war in Iraq and its detractors in the Senate, the Supreme Court pulled off a coup. In a 5-4 decision, the Court invalidated the property rights we have depended on throughout our history, demolishing the traditional understanding of the Fifth Ammendment's Public Use Clause (full story here and here).

The majority opinion was written by Justice Stevens, and he was joined by Justices Kennedy, Souter, Ginsberg, and Breyer. Stevens stated in his opinion, "The city has carefully formulated an economic development that it believes will provide appreciable benefits to the community, including -- but by no means limited to -- new jobs and increased tax revenue."

That's all well and good, but this economic development project should follow the time-honored process of finding property through the free market and then adjusting the plan to allow for the people who will not sell. Unfortunately, I realize that theft and coercion (and maybe even corruption) are long-standing (though not honored) traditions as well. Now the Supreme Court majority has codified these as part of their broadening of Fifth Ammendment interpretation.

Justice O'Connor wrote the minority opinion, and she was joined by Chief Justice Rehnquist and Justices Scalia and Thomas. "Any property may now be taken for the benefit of another private party, but the fallout from this decision will not be random," O'Connor wrote. "The beneficiaries are likely to be those citizens with disproportionate influence and power in the political process, including large corporations and development firms."

And the losers will be individuals, companies, and organizations not wealthy enough to defend themselves. Especially vulnerable will be churches, since their property is removed from the tax rolls. Cities with a desire to convert property to tax-increasing use will likely begin examining the churches within their jurisdiction. And developers with city officials in their pockets have probably already started reviewing possible development sites, with an eye for eminent domain acquisitions.

Justice Thomas added to O'Connor's dissent, "[T]he Court has erased the Public Use Clause from our Constitution."

This ruling is in a different class entirely from earlier rulings that upset the majority of the population. Striking down the Texas sodomy law, or ruling that capital punishment cannot be applied to murderers who were under age 18 at the time of their crime, apply to small segments of the population. But yesterday's decision that, essentially, your property really belongs to the government and not to you, is one that affects everyone who either owns property or wants to.

There is safety only in a handful of states. As reported by AOL News, "At least eight states - Arkansas, Florida, Illinois, Kentucky, Maine, Montana, South Carolina and Washington - forbid the use of eminent domain for economic development unless it is to eliminate blight."

Tom McClintock, California state senator, "plans to introduce an amendment to the California Constitution to restore the original meaning of the property protections in the Bill of Rights."

If it doesn't pass, maybe I'll move to Montana.