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Judicial Nominations: Round Two By: Henry Mark Holzer
FrontPageMagazine.com | Friday, June 24, 2005


If anyone has lingering doubts about the stakes in the forthcoming fight over vacancies on the Supreme Court of the United States, they should be laid to rest after Thursday’s decision in Kelo v. City of New London.

According to the Court: “In 2000, the city of New London approved a development plan that . . . was ‘projected to create in excess of 1,000 jobs, to increase tax and other revenues, and to revitalize an economically distressed city, including its downtown and waterfront areas.’  * * * In assembling the land needed for this project, the city’s development agent has purchased property from willing sellers and proposes to use the power of eminent domain to acquire the remained of the property from unwilling owners for just compensation.” (Emphasis added.)  One beneficiary of the development plan is to be the non-governmental pharmaceutical company, Pfizer, Inc. 

Thus, the question for the Supreme Court was “whether the City’s development plan serves a ‘public purpose’” sufficient to justify condemnation and necessitate the payment of just compensation.

 

In a 5-4 decision, the Court’s answer was “yes”: New London could rob Peter [Kelo and other unwilling owners] for the benefit of Paul [Pfizer and other private beneficiaries].

 

One justice dissented, joined by three others—one of whom wrote a separate dissenting opinion.  The major dissent could not be clearer about what the majority had done:

Today the Court abandons [a] 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 [majority] 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 the words “for public use” from the Takings Clause of the Fifth Amendment.

The separate dissent, after shredding the precedents relied on by the majority, concluded with these words:

When faced with a clash of constitutional principle and a line of unreasoned cases wholly divorced from the text, history, and structure of our founding document, we should not hesitate to resolve the tension in favor of the Constitution’s meaning.

But that’s not what has happened in the Kelo case.  By invoking dubious precedent and rewriting the “public use” language of the Fifth Amendment’s Taking Clause, a narrow majority of five justices of the Supreme Court have given constitutional sanction to the naked transfer, by government fiat, of one person’s property to another person. 

 

Understandably, when one regards the skirmishes that have already taken place over judicial nominees—let alone the battles to come over Supreme Court vacancies—focus is apt to be on issues like abortion, affirmative action, the War on Terror.  But property rights issues are equally important, because without the right to own and use one’s property, ultimately one’s very life itself is in jeopardy.

 

This is why the fight over judges is so important, and why the fight over Supreme Court vacancies is more than important: it is crucial to our survival as a free nation.

 

And it is why the identity of the five majority judges in Kelo is so important.

 

The majority, predictably, included Breyer and Ginsburg, each appointed by Bill Clinton.

 

It included the opinion’s author, the liberal Justice Stevens—appointed by Republican President Gerald Ford. 

 

It included the ideological renegade Justice Kennedy—appointed by Republican President Reagan.

 

It included the liberal Justice Souter—appointed by Republican President Bush (I). 

 

Thus, the appointees of three Republican presidents have been responsible for, in the words of Justice O’Connor’s principal (and principled) dissent  (joined by Rehnquist, Scalia and Thomas) “wash[ing] out the words ‘for public use’ from the Takings Clause of the Fifth Amendment,” and in the process sending any meaningful principle of private property down the drain. 

 

There is a profound message in the Kelo case for President Bush and those (other than in the Senate) who will advise him on Supreme Court nominees.  It is well expressed in the separate dissent of Justice Thomas: the Court must make its decisions based not on ephemeral notions of public good, but “in favor of the Constitution’s meaning.”

 

Is George W. Bush listening?

 

Henry Mark Holzer (www.henrymarkholzer.com) is Professor Emeritus at Brooklyn Law School.


Henry Mark Holzer, Professor Emeritus at Brooklyn Law School, is a constitutional lawyer and author most recently of The Supreme Court Opinions of Clarence Thomas, 1991-2006, A Conservative’s Perspective.



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