Thomas Sowell

You may own your own home and expect to live there the rest of your life. But keep your bags packed, because the Supreme Court of the United States has decreed that local politicians can take your property away and turn it over to someone else, just by using the magic words "public purpose."

 We're not talking about the government taking your home in order to build a reservoir or a highway for the benefit of the public. The Constitution always allowed the government to take private property for "public use," provided the property owner was paid "just compensation."

 What the latest Supreme Court decision does with verbal sleight-of-hand is change the Constitution's requirement of "public use" to a more expansive power to confiscate private property for whatever is called "public purpose" -- including turning that property over to some other private party.

 In this case -- Kelo v. New London -- the private parties to whom the government would turn over confiscated properties include a hotel, restaurants, shops, and a pharmaceutical company.

 These are not public uses, as the Constitution requires, but are said to serve "public purposes," as courts have expanded the concept beyond the language of the 5th Amendment -- reflecting those "evolving" circumstances so dear to judges who rewrite the Constitution to suit their own tastes.

 No sane person has ever denied that circumstances change or that laws need to change to meet new circumstances. But that is wholly different from saying that judges are the ones to decide which laws need changing and in what way at what time.

 What are legislatures for except to legislate? What is the separation of powers for except to keep legislative, executive and judicial powers separate?

 When the 5 to 4 Supreme Court majority "rejected any literal requirement that condemned property be put into use for the general public" because of the "evolving needs of society," it violated the Constitutional separation of powers on which the American system of government is based.

 When the Supreme Court majority referred to its "deference to legislative judgments" about the taking of property, it was as disingenuous as it was inconsistent. If Constitutional rights of individuals are to be waved aside because of "deference" to another branch of government, then the citizens may as well not have Constitutional rights.

 What are these rights supposed to protect the citizens from, if not the government?

 This very Court, just days before, showed no such deference to a state's law permitting the execution of murderers who were not yet 18. Such selective "deference" amounts to judicial policy-making rather than the carrying out of the law.

 Surely the Justices must know that politicians whose whole careers have been built on their ability to spin words can always come up with some words that will claim that there is what they can call a "public purpose" in what they are doing.

 How many private homeowners can afford to litigate such claims all the way up and down the judicial food chain? Apartment dwellers who are thrown out on the street by the bulldozers are even less able to defend themselves with litigation.

 The best that can be said for the Supreme Court majority's opinion is that it follows -- and extends -- certain judicial precedents. But, as Justice Clarence Thomas said in dissent, these "misguided lines of precedent" need to be reconsidered, so as to "return to the original meaning of the Public Use Clause" in the Constitution.

 Justice Sandra Day O'Connor's dissent points out that the five Justices in the majority -- Ginsburg, Breyer, Souter, Stevens, and Kennedy -- "wash out any distinction between private and public use of property." As a result, she adds: "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."

 In other words, politicians can replace your home with whatever they expect will pay more taxes than you do -- and call their money grab a "public purpose."

Thomas Sowell

Thomas Sowell is a senior fellow at the Hoover Institute and author of The Housing Boom and Bust.

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