WASHINGTON -- Rampant redistribution of wealth by government is now the norm. So is this: It inflames government's natural rapaciousness and subverts the rule of law. This degeneration of governance is illustrated by the Illinois Legislature's transfer of income from some disfavored riverboat casinos to racetracks.
Illinois has nine licensed riverboat casinos and five horse-racing tracks. In 2006, supposedly to "address the negative impact that riverboat gaming has had" on Illinois horse racing, the Legislature -- racing interests made huge contributions to Gov. Rod Blagojevich -- mandated a transfer of 3 percent of the gross receipts of the four most profitable casinos, those in the Chicago area, to the state's horse-racing tracks. This levy, subsequently extended to run until 2011, will confiscate substantially more than $100 million.
What is to prevent legislators from taking revenues from Wal-Mart and giving them to local retailers? Or from chain drugstores to local pharmacies? Not the tattered remnant of the Constitution's takings clause.
The Fifth Amendment says private property shall not "be taken for public use without just compensation" (emphasis added). Fifty state constitutions also stipulate taking only for public uses. But the Illinois Supreme Court ignored the public use question. Instead, the court said it is "well settled" that the takings clause applies only to government's exercise of its eminent domain power regarding land, buildings and other tangible or intellectual property -- but not money.
Conflicting rulings by state courts demonstrate that that question is chaotically unsettled. That is one reason the U.S. Supreme Court should take the Illinois case and reject the preposterous idea that money is not property within the scope of the takings clause -- an idea that licenses legislative confiscations. Another and related reason why the court should take the case is to reconsider its 2005 ruling that rendered the "public purpose" requirement empty.
The careful crafters of the Bill of Rights intended the adjective "public" to restrict government takings to uses directly owned by government or primarily serving the general public, such as roads, bridges or public buildings. In 1954, in a case arising from a disease-ridden section of Washington, D.C., the court broadened the "public use" criterion. It declared constitutional takings for the purpose of combating "blight" that is harmful to the larger community.
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