ED Troubles

Most of what the US Supreme Court does – except when it discusses abortion – passes more or less unremarked by most members of the public. (Unless you’re sentenced to death and wish to call your Mother as a witness, this week’s decision in Oregon v. Gruzek will concern you little. And few folks are likely to run afoul of the Rooker-Feldman doctrine explained and applied in Lance v. Dennis on Monday)

A notable exception is last term’s decision in Kelo v. New London, the eminent domain case, which produced significant public interest and backlash.

Perhaps the prospect of losing one’s home because some big developer "needs" it to push a particular project just gets under people’s skin.

The decision created some interesting political alliances. Almost instantly, most of the "right wing" – long suspicious of government power in general, and the power to restrict property rights in particular – rose up, condemning the decision and urging legislation to curtail its reach. Curiously, many voices of the left – you know, those champions of "the little guy" – remained conspicuously silent. Brookings, perhaps the dean of left wing think-tankery, published a short blurb "in defense of eminent domain", calling it "... an important revitalization tool for distressed municipalities, and their residents, across the nation. The evidence can be seen in projects as varied as Baltimore's famed Inner Harbor to Lansing's Oldsmobile Park Stadium." Not one word about – or concern over – where the people who used to live there presently reside.

The Constitution prohibits taking private property except for "public use". As Justice Stevens’ majority opinion points out, Courts initially took the words "public use" as meaning precisely that, but noted that this fealty to the text "... had eroded over time .. given the diverse and always evolving needs of society". (That sort of language sends shivers down the spine of anyone who believes that the language of the Constitution actually means something) Stevens pointed out – with historic accuracy – that the power to take private property had, in fact, been delegated to purely private entities, such as railroads, without (successful) constitutional objection.

Justice Kennedy, in his concurrence, noted the long history of judicial deference to legislative authority in such cases when any the taking is "rationally related to a conceivable public purpose". While the Court’s deference to the Legislature is refreshing – would that they accorded the same deference in abortion cases – note the slight of hand: "public purpose" is NOT the same as "public use". Judges, wishing to arrive at a particular result, often substitute close synonyms for the actual language of the document they purport to construe. They call this a "living constitution".

The question raised in Kelo presents no problem for an originalist Justice. Justice (emeritus) O’Connor – displaying her somewhat quirky fidelity to the language of the Constitution – concluded that a law which takes property from A and give it to B, allegedly for the "public benefit", eviscerates the language of the Takings Clause. Justice Thomas, as he so often does, wrote sagely:

"Allowing the government to take property solely for public purposes is bad enough, but extending the concept of public purpose to encompass any economically beneficial goal guarantees that these losses will fall disproportionately on poor communities. Those communities are not only systematically less likely to put their lands to the highest and best social use, but are also the least politically powerful. If ever there were justification for intrusive judicial review of constitutional provisions that protect "discrete and insular minorities,"surely that principle would apply with great force to the powerless groups and individuals the Public Use Clause protects. "

Here in New Jersey, we witness precisely that. In Long Branch, for instance, perfectly serviceable homes are declared "blighted" so that land may be seized and developed for high end housing. In Newark, whole blocks are to be taken, with dozens if not hundreds of homes and businesses destroyed, to provide for "redevelopment". The common thread: relatively poor people get evicted; rich folks reap a windfall.

One can understand why municipal officials – and anyone living in a neighborhood of the municipality other than that being bulldozed – love this power. New businesses, and rich residents, pay higher taxes, might create new jobs, etc. Quite possibly, everyone other than those people unceremoniously evicted from their homes and businesses stands to benefit.

But the glorious thing about the Constitution is that it protects us from majority tyranny. However well-intentioned these municipal officials might be, if redevelopment is to be undertaken in a particular area, let the developer pay the residents a price they are willing to accept. Or cut an appropriate deal. If the property owners are stubborn, and wish to stay, build around them. (Your homework assignment for today: watch Batteries Not Included, a Spielberg flick) There’s absolutely no reason why redevelopment needs to be done wholesale, with grandiose projects encompassing whole neighborhoods. It can be effected piecemeal and, if the folks living there don’t want to sell, tough beans.

The Constitution embodies the Framers’ views that property rights are fundamental to a free society. However great the asserted benefit to the public at large might be, and however pigheaded and stubborn a landowner might be, property rights simply cannot be ignored and may only be trumped by the most compelling public need, for a "public use". A better class of neighbor simply is NOT a basis for ignoring these most basic of our rights.

Even if we could depend upon the New Jersey Supreme Court to do something other than simply make up the law as it goes along, New Jersey’s Constitution EXPRESSLY authorizes precisely the sort of outrages presently being practiced. Nothing less than excising the offending constitutional language suffices. New Jersey should stand in the forefront of protecting property rights, not be – yet again – an abject example to the rest of the nation of government run amok.

About the Highlands, and the "taking" of private property without even a semblance of compensation therefor, more in a future post.