Head West, Turn Right

The Joint Blog of the Conservative Northwest Blogging Alliance: Red State Points of View from a Blue State Point on the Compass.

Thursday, June 23, 2005

How do you know which wallet belongs to Justice Thomas?

Today, the Supreeeeeeeeeme Court ruled that government can take your property for whatever the hell it wants. From CNN today,
The Supreme Court on Thursday ruled that local governments may seize people's homes and businesses -- even against their will -- for private economic development.
As a result, cities have wide power to bulldoze residences for projects such as shopping malls and hotel complexes to generate tax revenue.
The Institute for Justice gives an abbreviated description of the case:
In 1998, pharmaceutical giant Pfizer built a plant next to Fort Trumbull and the City determined that someone else could make better use of the land than the Fort Trumbull residents. The City handed over its power of eminent domain—the ability to take private property for public use—to the New London Development Corporation (NLDC), a private body, to take the entire neighborhood for private development.

In regards to her dissent, the AP article says
Justice Sandra Day O'Connor…issued a stinging dissent.
Some choice excerpt from her dissent include
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.

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…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.

The specter of condemnation hangs over all property. Nothing is to prevent the State from replacing any Motel 6 with a Ritz-Carlton, any home with a shopping mall, or any farm with a factory.

If legislative prognostications about the secondary public benefits of a new use can legitimate a taking, there is nothing in the Court’s rule or in Justice Kennedy’s gloss on that rule to prohibit property transfers generated with less care, that are less comprehensive, that happen to result from less elaborate process, whose only projected advantage is the incidence of higher taxes, or that hope to transform an already prosperous city into an even more prosperous one.

Today nearly all real property is susceptible to condemnation on the Court’s theory. In the prescient words of a dissenter from the infamous decision in Poletown, “[n]ow that we have authorized local legislative bodies to decide that a different commercial or industrial use of property will produce greater public benefits than its present use, no homeowner’s, merchant’s or manufacturer’s property, however productive or valuable to its owner, is immune from condemnation for the benefit of other private interests that will put it to a ‘higher’ use.”

But the truly scathing dissent comes from Justice Thomas
If such “economic development” takings are for a “public use,” any taking is, and the Court has erased the Public Use Clause from our Constitution…
Justice Thomas puts some sting into it with this
Today’s decision is simply the latest in a string of our cases construing the Public Use Clause to be a virtual nullity, without the slightest nod to its original meaning.
Much to my enjoyment, Thomas continues to define himself as a strict Constitutionalist. And he’s not afraid to show his love for Original Intent.
Tellingly, the phrase “public use” contrasts with the very different phrase “general Welfare” used elsewhere in the Constitution. (“Congress shall have Power To … provide for the common Defence and general Welfare of the United States”); preamble (Constitution established “to promote the general Welfare”). The Framers would have used some such broader term if they had meant the Public Use Clause to have a similarly sweeping scope.
He then takes SCOTUS to task for the ambiguity of this ruling in relation to others.
The Court has elsewhere recognized “the overriding respect for the sanctity of the home that has been embedded in our traditions since the origins of the Republic,” Payton, supra, at 601, when the issue is only whether the government may search a home. Yet today the Court tells us that we are not to “second-guess the City’s considered judgments,” ante, at 18, when the issue is, instead, whether the government may take the infinitely more intrusive step of tearing down petitioners’ homes. Something has gone seriously awry with this Court’s interpretation of the Constitution.
Justice Thomas then opens a can (whoop-ass, not Coke) and almost literally asks if those in the majority opinion are trying to gut the Constitution.
It is far easier to analyze whether the government owns or the public has a legal right to use the taken property than to ask whether the taking has a “purely private purpose”—unless the Court means to eliminate public use scrutiny of takings entirely. Obliterating a provision of the Constitution, of course, guarantees that it will not be misapplied.
To finish his lashing of the rest of the court, he closes by suggesting a review of all previous takings cases.
For all these reasons, I would revisit our Public Use Clause cases and consider returning to the original meaning of the Public Use Clause: that the government may take property only if it actually uses or gives the public a legal right to use the property.

Justice Thomas is leaving no doubt as to his understanding of the Constitution. And it is a beautiful thing. He’s also leaving no doubt about his opinion of some of his fellow bench mates. The more I read the decisions of Justice Thomas, the more I hope he becomes Chief Justice after the departure of Rehnquist.

To answer the question in the title, it's the one that says Bad Motherf**ker.
Crossposted @ I&I


At 1:02 PM, Blogger Brian B said...

Damn Straight. Clarence has my utmost respect.

At 5:54 AM, Blogger Palm boy said...

Excellent posting, even better points.

At 4:50 PM, Anonymous Anonymous said...

I havent been blogging in a couple of months and came on and found this excellent post. Here is a little article that blew me away as the ultimate answer to this ruling. http://www.worldnetdaily.com/news/article.asp?ARTICLE_ID=45029
Take care,


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