Thoughts on Kelo

Bill inquired, (reasonably):

Did you accidently smoke some of the plants you're growing?

Yesterday, the ruling of the Supreme Court came down in a case called Kelo v. City of New London. I'll skip the legal analysis, but we've been waiting to hear the outcome in Land Use Planning class.

As the court writes:

Petitioner Susette Kelo has lived in the Fort Trumbull area since 1997. She has made extensive improvements to her house, which she prizes for its water view. Petitioner Wilhelmina Dery was born in her Fort Trumbull house in 1918 and has lived there her entire life. Her husband Charles (also a petitioner) has lived in the house since they married some 60 years ago. In all, the nine petitioners own 15 properties in Fort Trumbull--4 in parcel 3 of the development plan and 11 in parcel 4A. Ten of the parcels are occupied by the owner or a family member; the other five are held as investment properties. There is no allegation that any of these properties is blighted or otherwise in poor condition; rather, they were condemned only because they happen to be located in the development area.

In other words, unlike a blighted neighborhood, or a house that's falling down and hazardous, these houses are just fine. The working class families that live there don't want to leave. The city is using its power of eminent domain in order to assemble a large parcel of land, with nice views, for new development. Yet, the plan has no specific use in mind for part of this land.

[One Parcel] is slated, mysteriously, for " 'park support.' " At oral argument, counsel for respondents conceded the vagueness of this proposed use, and offered that the parcel might eventually be used for parking. (cites omitted)

So, how would you feel if your home was condemned just because a developer promises to the town that it thinks it can earn higher returns on the property? Again, this wasn't to build a hospital, or a road, or a park. This condemnation takes property from one person, to give to another.

One of the most important aspects of property ownership, its "settledness," is thereby wiped away. As Justice O'Connor wrote in the dissent:

In moving away from our decisions sanctioning the condemnation of harmful property use, the Court today significantly expands the meaning of public use. It holds that the sovereign may take private property currently put to ordinary private use, and give it over for new, ordinary private use, so long as the new use is predicted to generate some secondary benefit for the public--such as increased tax revenue, more jobs, maybe even aesthetic pleasure. But nearly any lawful use of real private property can be said to generate some incidental benefit to the public. Thus, if predicted (or even guaranteed) positive side-effects are enough to render transfer from one private party to another constitutional, then the words "for public use" do not realistically exclude any takings, and thus do not exert any constraint on the eminent domain power.

So, I suspect, there will be political fallout from this, probably much more than the Court expected. The question becomes, other than a constitutional amendment, what mechanisms do the representative branches of government have in order to correct this wayward court. And that's the research I'll want to do when I have the time.

And finally, as to the phrase "Black Robed Masters." In his syndicated column for June 30, 1996 on the VMI decision, George Will famously described the Supreme Court as "our robed masters." The "robed masters" part stuck, and over time "Black" got prefixed to it (since, of course, the Supreme Court Justices do wear black robes.) Nixon was accused of running an "Imperial Presidency," the equivalent accusation for critics of the Supreme Court emphasizing their overreach is to describe them as the black robed masters.