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REWRITING THE CONSTITUTION
by James Kilpatrick
The most regrettable decision of a regrettable term came a week ago, in the eminent domain case of Kelo v. City of New London. Speaking through Justice John Paul Stevens, the court applied the law according to Humpty Dumpty. To that eminent jurist, words meant only what he chose them to mean, and neither more nor less. Until last week, the words "public use" meant "public use." Now they mean "public purpose or private benefit."
To be sure, this was not the first time the court has effectively amended the Constitution by judicial interpretation. The subtle process dates from the days of John Marshall. Only a few weeks ago the court rewrote the 21st Amendment in order to nullify the liquor laws of Michigan and New York. Last week's plastic surgery on the Fifth was surgery at a more critical level.
Every sixth-grader can identify a public "use." The indispensable power of eminent domain permits governments to build roads, establish parks, erect public buildings and establish public schools. These are public uses.
Nothing of the sort was at the heart of last week's decision. The city now may proceed to seize the unoffending home of Susette Kelo, smash it to bits, haul away the debris, and sell the vacant land to the highest bidder. A few doors away, the redevelopers will evict Wilhelmina Dery from the home she has occupied for more than 80 years.
Will the owners receive "just compensation"? Of course, but for Kelo and other owners, the modifying "just" mocks the noun. Their property will not be put to a "public use." It will pass unjustly to private developers. If all goes well, the developers can go to their banks with a bundle. Ms. Kelo and her neighbors can go to — they can go to some other neighborhood, somewhere else.
In his majority opinion for the court, Justice John Paul Stevens smiled upon the city's rose-petaled justification. The city has been slowly losing jobs and population. What to do? Get rid of the owners! Then land could be cleared for the Pfizer corporation to build a $300 million research facility. The city fathers licked their chops. Their eyes rolled around like Mr. Toad's when he saw the motorcar. They saw classy restaurants, retail stores, a marina! There would be 80 new residences, none of which Susette Kelo could afford. What a deal!
To Stevens and his four colleagues, the "narrow view" that "use" means "use" is a view that has steadily eroded over time. A literal interpretation has proved to be "impractical" and "difficult to administer." Mrs. Kelo's eviction must be viewed "in light of the entire plan." This plan "unquestionably serves a public purpose, and the takings satisfy the public use requirement of the Fifth Amendment."
Justice Sandra Day O'Connor filed a powerful dissent: "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."
She asked rhetorically: "Are economic development takings constitutional?" She answered without equivocation: "I would hold that they are not."
In a separate dissenting opinion, Justice Clarence Thomas agreed with O'Connor: "If 'economic development' takings are for a 'public use,' any taking is, and the court has erased the Public Use Clause from our Constitution. ... Once one permits takings for public purposes in addition to public uses , no coherent principle limits what could constitute a valid public use ..."
So ends the court's term. It should have ended when it began nine months ago.
(Letters to Mr. Kilpatrick should be sent by e-mail to firstname.lastname@example.org.)
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