Out of Control Policy Blog

Justice O'Connor to Retire

Justice Sandra Day O'Connor has announced her retirement:

    Sandra Day O'Connor, the first woman on the Supreme Court and a wing vote on abortion as well as other contentious issues, announced her retirement Friday. A bruising Senate confirmation struggle loomed as President Bush pledged to name a successor quickly.

Nice to see this Kelo reference in the article:

    She expressed her views pungently at times. Last week, in a dissent in a 5-4 ruling that let local governments take personal property to build malls and other businesses, she wrote that the majority had unwisely handed more power to the powerful.

    "The specter of condemnation hangs over all property," O'Connor wrote. "Nothing is to prevent the state from replacing ... any home with a shopping mall, or any farm with a factory."

To give Justice O'Connor's dissent its proper due, here's a longer excerpt (full dissent here):

    Today the Court abandons this 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 Court 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 any distinction between private and public use of property–and thereby effectively to delete the words "for public use" from the Takings Clause of the Fifth Amendment. Accordingly I respectfully dissent.

    [...]

    Here [...] New London does not claim that Susette Kelo's and Wilhelmina Dery's well-maintained homes are the source of any social harm. Indeed, it could not so claim without adopting the absurd argument that any single-family home that might be razed to make way for an apartment building, or any church that might be replaced with a retail store, or any small business that might be more lucrative if it were instead part of a national franchise, is inherently harmful to society and thus within the government's power to condemn.

    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.

    [...]

    Even if there were a practical way to isolate the motives behind a given taking, the gesture toward a purpose test is theoretically flawed. If it is true that incidental public benefits from new private use are enough to ensure the "public purpose" in a taking, why should it matter, as far as the Fifth Amendment is concerned, what inspired the taking in the first place? How much the government does or does not desire to benefit a favored private party has no bearing on whether an economic development taking will or will not generate secondary benefit for the public. And whatever the reason for a given condemnation, the effect is the same from the constitutional perspective–private property is forcibly relinquished to new private ownership.

    [...]

    The logic of today's decision is that eminent domain may only be used to upgrade–not downgrade–property. At best this makes the Public Use Clause redundant with the Due Process Clause, which already prohibits irrational government action. [...] The Court rightfully admits, however, that the judiciary cannot get bogged down in predictive judgments about whether the public will actually be better off after a property transfer. In any event, this constraint has no realistic import. For who among us can say she already makes the most productive or attractive possible use of her property? 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.

    [...]

    Any property may now be taken for the benefit of another private party, but the fallout from this decision will not be random. The beneficiaries are likely to be those citizens with disproportionate influence and power in the political process, including large corporations and development firms. As for the victims, the government now has license to transfer property from those with fewer resources to those with more. The Founders cannot have intended this perverse result. "[T]hat alone is a just government," wrote James Madison, "which impartially secures to every man, whatever is his own."

Let's hope that her replacement holds similar sentiments.

PS -- If you're so inclined, O'Connor Kelo dissent apparel is now available. Is this a great country or what?!

Leonard Gilroy is Director of Government Reform


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