Progressive judges protect those who cannot protect themselves in the political process. For example, the Warren Court expanded the rights of the criminal accused and struck down laws persecuting blacks. This tendency to protect our most vulnerable citizens belies the conservative caricature of progressives as wantonly willing to sacrifice individual rights to the whims of “big government.”
But in the recent Supreme Court case of Kelo vs. New London, the more progressive justices ignored their role as tribunes of the powerless and provided fodder to those who claim they reflexively endorse government power.
New London exercised its authority of eminent domain to seize the homes of ordinary citizens – not for a traditional use such as a highway or railroad, but to transfer the land to private developers. How could five Supreme Court justices (including the supposed progressives) uphold this unconscionable action?
The Fifth Amendment of the Constitution gives government power to take possession of private property needed for a “public use” (provided it give “just compensation” to the owner). However, today states and municipalities routinely use this power to transfer property to private parties, claiming that doing so confers a constitutionally adequate public benefit. Even before Kelo, the Supreme Court approved this practice.
To a limited extent, this can make sense – land may serve a legitimate public purpose even in the hands of a private party. Imagine that land abutting a dangerously overcrowded private hospital, the only health care facility in a community, is taken by the government to expand the hospital. This exercise of eminent domain serves a crucial public purpose that might otherwise be neglected.
But it does not follow that most uses of eminent domain to transfer property to a private party are acceptable. A transfer should never be used solely as a means to redistribute wealth – to take from X to give to Y because the government favors Y. Moreover, it makes some difference whose land is taken. For example, seizing a multi-generation family farm is different from seizing an apartment building leased for profit.
These distinctions have been ignored by the courts for some time, culminating in the egregious Kelo decision. The courts have swept aside virtually any objection to any exercise of eminent domain, essentially holding that “public use” is whatever the government says it is, and tough luck for those booted from their homes and communities.
To be sure, the Supreme Court has said that a “purely private taking could not withstand the scrutiny of the public use requirement; it would serve no legitimate purpose of government and would thus be void.” But this assurance is empty, because the government can always concoct an ostensible public purpose. When municipalities hand land to businesses or developers, they predict increased employment and tax revenue that will serve the community. But if this prediction proves wrong, there is no recourse for those who lost their homes. Moreover, there are invariably alternative measures to spur the economy other than evicting innocent people, such as finding other sites for development or offering loans and public works programs.
As Justice Sandra Day O’Connor stressed in her dissent, Kelo leaves no American secure. Any house can be seized by government and turned over to Wal-Mart, Motel 6 or any business that promises to create jobs or tax revenue. As O’Connor noted, such transfers inevitably reward those with “disproportionate influence and power in the political process, including large corporations and development firms.”
Ironically, her dissent was joined by Justices Antonin Scalia, Clarence Thomas and William H. Rehnquist, who often close their eyes to corporate control of American politics and economics. We can only guess how the progressive justices felt to be lectured by their conservative brethren about kowtowing to the powerful and trampling the rights of ordinary citizens, but this much is clear: In Kelo, the conservatives on the court were correct.
The situation is not hopeless. Many states have a “takings clause” (or other means of safeguarding private property from government) in their own constitutions, and state judges are the ultimate interpreters of their constitutions. And state legislatures may enact new protections. Both judges and legislators should do what the U.S. Supreme Court manifestly failed to do: protect their politically powerless citizens from government abuse.
Ralph Nader is a consumer activist in Washington, and Alan Hirsch is a professor of legal studies at Williams College in Massachusetts.
Copyright 2005, Hartford Courant