Anthony Kennedy’s big lie

Matthew Hoy
By Matthew Hoy on December 28, 2010

I’ve been outraged about the infamous Kelo decision ever since it came down. For those of you who are unfamiliar with it, the Supreme Court in a 5-4 decision construed the “public use” clause of the Fifth Amendment to include higher tax income. Before Kelo if the government was going to take property through eminent domain, they had to be using it for roads, schools or some other public use. After Kelo the government only had to prove that they would get more tax money by forcibly transferring land from one person to another.

Some states responded by passing laws to narrowly define “public use” as, well, public use. Others did not. The federal government did not.

But in his concurrence, squish Justice Anthony Kennedy claimed to narrowly circumscribe this new definition of public use, as Damon W. Root at Reason magazine noted:

When he cast the fifth and deciding vote in the Supreme Court’s notorious 2005 decision in Kelo v. City of New London, Justice Anthony Kennedy laid down a few stipulations. First and foremost, Kennedy declared, while the local officials in New London did possess the controversial authority to seize private property and hand it over to another private owner for the purpose of “economic development,” this sweeping eminent domain power was not a blank check. “Transfers intended to confer benefits on particular, favored private entities, and with only incidental or pretextual public benefits,” he wrote, “are forbidden by the Public Use Clause.”

As for identifying those nefarious “favored private entities,” Kennedy explained that officials in New London “reviewed a variety of development plans and chose a private developer from a group of applicants rather than picking out a particular transferee beforehand.” In other words, under the binding terms of Kennedy’s tie-breaking vote, the primary private beneficiary of an eminent domain taking must be “unknown at the time the city formulated its plans.”

Last week, attorney and former New York Civil Liberties Union director Norman Seigel decided to take Kennedy up on his word, filing a petition with the Supreme Court asking it to hear the case of Tuck-It-Away, Inc. v. New York State Urban Development Corporation. At issue is last June’s disastrous ruling by New York’s Court of Appeals—the state’s highest court—allowing New York’s powerful Empire State Development Corporation (ESDC) to seize private property in the West Harlem neighborhood of Manhattanville and hand it over to Columbia University, an elite private institution, which wants to build a new research campus in the neighborhood. Notably, the Court of Appeals’ 34-page decision made no mention of Kelo.

Which brings us back to Justice Kennedy’s tie-breaking and therefore controlling vote in Kelo. In that case, the relevant public officials determined the purpose and scope of the project before settling on the transferee who would reap the profits. That way the prime beneficiary of government power wasn’t also helping to direct that power toward its own ends. In the Columbia case, however, the state agency worked hand-in-glove with its preselected private beneficiary from the very start, even colluding with Columbia in order to “manufacture support for condemnation.” Nor did the ESDC ever consider any alternative plans for the neighborhood. That's exactly the sort of favoritism and corruption forbidden under Kelo. As the Supreme Court begins work on its new term, let’s hope the justices give the petition in Tuck-It-Away, Inc. the careful scrutiny it deserves.

Earlier this month, the Supreme Court declined to hear the Tuck-It-Away, Inc. case. Justice Kennedy’s outline of limitations on the Kelo decision are now null and void. The inestimable Instapundit noted in the New York Post:

In this case, the government lacks even the weak excuse that the change will boost tax revenues, since -- as Megan McArdle of The Atlantic Monthly pointed out -- the property is being transferred from taxpaying businesses to a largely non-taxpaying enterprise.

Part of the American Dream was the expectation that if you started a business, you might go broke but you didn't have to worry about the government seizing your business on behalf of those with more political juice. That sort of thing was for Third World countries, corrupt kleptocracies where connections mattered more than capability.

Not anymore. In fact, some of those formerly corrupt Third World countries have started providing stronger protection for private property, as they've realized that the more power you give to politicians and their cronies, the less incentive people have to try to succeed through hard work. What's the point, if you're at the mercy of the cronies?

We, on the other hand, seem to be moving backward.

The fact is the powerful and connected -- the Bloombergs, the Bollingers, et al -- don't really need strong legal protections. Nobody's going to take their property anyway. (When's the last time you heard of a rich guy's home being condemned?) For those with juice, things seldom get as far as the courts.

The courts are supposed to be there to protect the rest: The people without the connections, the ones who depend on the rule of law to keep the predators away.

This new Congress should put this right. The Court’s Kelo jurisprudence needs to be swept aside. Public use means public use, not increased tax revenues, “redevelopment” or anything else. Whether this can be done with simple legislation or whether we need another constitutional amendment the people’s representatives need to act – who exactly would stand against them?

(Here’s a question for you: What would this constitutional amendment look like? “With regard to the Fifth Amendment, the Court shall read the text as plain and simple English.”)

One comment on “Anthony Kennedy’s big lie”


Perfectly said: “It’s not that the statue had become unworthy of the museum. It’s that the museum had become unworthy of the statue. “

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