Take That!

by Don Boudreaux on September 28, 2004

in Law

The U.S. Supreme Court today announced that it will hear an appeal of a decision of the Connecticut Supreme Court that allows the city of New London, CT, to seize property using the power of eminent domain — using this power even when the city admits that the “public purpose” that must motivate the use of eminent domain is nothing more than the city-government’s desire for more tax revenue.

The dangers of allowing governments to use the power of eminent domain for such self-serving purposes are obvious.

Let’s hope that the U.S. Supreme Court, in deciding this case, doesn’t overlook the obvious. But I would not bet the farm on an outcome favorable to property owners. One reason is that conservative judges and justices have, over the past few decades, painted themselves into a peculiar intellectual corner. Being so utterly fearful of Warren-court-like activism, today’s conservative judges and justices have concluded that the Constitution is only a very limited bar to democratic outcomes — a weak constraint on whatever legislatures and their delegates do. If the Constitution doesn’t scream, in plain language, that some legislative action violates the document’s intent, that action passes judicial muster. (Robert Bork is the poster-boy for this interpretive approach.)

Consider this quotation from the CNN.com site:

“The record is clear that New London was a city desperate for economic rejuvenation,” the city’s legal filing states, in asking the high court to defer to local governments in deciding what constitutes “public use.”

The idea that legislatures can be trusted to police their own behavior for constitutional violations is untenable. But because conservative judges and justices find this “leave it to the legislature” stance so overwhelmingly appealing — for it does avoid Warren-court-like judicial activism — the city of New London’s argument before the Court might carry the day.

That outcome would be a damn shame, and a clear contradiction of the 5th Amendment’s takings clause.

The heroic Institute for Justice is playing a leading role in this struggle for the rights of property owners.

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