RESPONSE:

The Supreme Court Repeals the Constitution

The clause holds, “[Nor] shall private property be taken for public use, without just compensation.” Since, as the Supreme Court wrote in 1926, “It cannot be presumed that any clause in the Constitution is intended to be without effect,” we have to read each word closely. In his dissent in the recent case, Kelo v. City of New London , Supreme Court Justice Clarence Thomas does just that. Parsing the clause with great care, he shows there is no reasonable reading but this: if the government wants to take a person’s property, it may do so only for public use (such as a road) and only if the owner is fairly paid. Thus the Takings Clause was intended to be, Thomas writes, “an express limit on the government’s power of eminent domain.”

Before proceeding I must say that eminent domain assaults the individual freedom that Americans will go through the motions of celebrating on July 4. The very term should make us suspicious in that it tells us that government asserts, according to Merriam-Webster’s Dictionary of Law , “the superior dominion of its sovereignty over all lands within its jurisdiction.” In other words, we live on the land at the pleasure of the sovereign. As a matter of law, this principle is a vestige of absolute monarchy and is contrary to the libertarian spirit of the American founding. As a matter of logic, no “just compensation” is possible in a forced sale of property, because the only just price is the one freely negotiated by seller and buyer. What makes a transaction morally legitimate is not compensation but consent. Eminent-domain cases are distinguished precisely by their lack of seller’s consent.

It’s an unfortunate historical fact that the American Framers did not condemn the power of eminent domain. But it is also a fact that they sought to limit it through the public-use and just-compensation provisions in the Bill of Rights. This is why the Kelo decision is such a blow. As Justice Sandra Day O’Connor writes in her dissent, the Court has “effectively [deleted] the words ‘for public use’ from the Takings Clause of the Fifth Amendment.”

We are all less secure in our homes than we were on June 22. But some are more secure than others: the homes of low-income people are far more likely to be taken than those of the affluent. The winners are big, well-connected businesses — and revenue-hungry local politicians, such as those in New London, Connecticut. They condemned a number of homes and stores in a decent working-class neighborhood to make way for upscale restaurants and other businesses. Several homeowners objected, including an elderly woman who has lived in her home all her life, and they sued all the way to the Supreme Court. The city argued that since the new businesses will produce increased tax revenue and jobs, the takings will benefit the public, even if the city doesn’t directly use the land.

In ruling for the city, the 5-4 majority held that “public use” needn’t mean public use. It may mean any intended public benefit. Quoting a 1984 case, Justice John Paul Stevens declared, the “Court long ago rejected any literal requirement that condemned property be put into use for the general public.”

If the Court can liberate itself from any “literal requirement” when reading the Takings Clause, it follows that it can liberate itself from that requirement when reading any other part of the Constitution. But that means we can never know how the Court will claim to understand the Framers’ limits on government power. Which means: there are no limits on government power.

We’ve been in postconstitutional America for some time now. Kelo adds an ominous P.S.: There’s no turning back.