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June 23, 2005

'AN OMINOUS PRECEDENT': Supremes pull the feeding tube from the 5th Amendment

A five-member majority of the U.S. Supreme Court (with O'Connor joining expected dissenters Rehnquist, Scalia and Thomas) has declared it sees no constitutional problem with a local government seizing the property of one private entity and turning it over to another private entity whenever that local government deems that such a transaction serves "the public good"—in other words, whenever it pleases.

The Fifth Amendment's protection against illegitimate takings of private property was already on life support, but this decision pretty much finishes it off.

I suppose Stevens, writing for the majority, was trying to make us feel better when he pointed out that local governments could opt not to exercise this perversion of eminent domain power. On the contrary: now that local governments have the green light here, the potential for corruption will know no bounds.

The Times story (linked above) quotes O'Connor:
In a bitter dissent, Justice Sandra Day O'Connor said the majority had created an ominous precedent. "The specter of condemnation hangs over all property," she wrote. "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 property, but the fallout from this decision will not be random," she wrote. "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," Justice O'Connor went on, "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."
I wish O'Connor would defer to the Founders' intent more often, but I'm still happy to see her on the right side on this one.

The Dems know what's at stake in the coming battles over Supreme Court nominations. I hope the Republicans—especially those who still retain a shred of respect for the Constitution as originally written—understand as well.

Complete text of the decision: PDF, HTML
Commentary from Texas Insider

Click the 'Eminent Domain' link on the sidebar for other C-Pol postings on the subject.

1 comment:

Andrew J. said...

Tim this precedent really conserns me. I can guarentee that I will be reading my constitution on eminent domain tonight. My gut feeling is that this can not possibly be what our founding fathers wanted. I am truly surprised and frightened by this. This in no doubt leaves the door open to possible tyranny.

The moment the idea is admitted into society that property is not as sacred as the laws of God, and that there is not a force of law and public justice to protect it, anarchy and tyranny commence. If `Thou shalt not covet' and `Thou shalt not steal' were not commandments of Heaven, they must be made inviolable precepts in every society before it can be civilized or made free.

John Adams, A Defense of the American Constitutions, 1787