June 29, 2005
Wednesday

Half a century ago, H.L. Mencken observed of American judges: "No one can be sure anymore that in a given case they will uphold even the plainest mandate of the Constitution. On the contrary, everyone begins to be more or less convinced in advance that they won't. Judges are chosen not because they know the Constitution and are in favor of it, but precisely because they appear to be against it."

But even the unflappably cynical Mr. Mencken might have been struck by the revolutionary nature of last week's U.S. Supreme Court ruling that, in America, a man's home is no longer his castle.

The ruling centered on the efforts of New London, Conn., to seize land from longtime homeowners to be used for spiffy new corporate offices for Pfizer (the pharmaceutical giant) and a hotel. The Fifth Amendment bars the government from taking private property "for public use without just compensation." Traditionally, public use has meant such things as schools and highways - and the government has left it to private parties, through real-estate negotiations, to decide among themselves what is "just compensation" for private development. But, by a 5-to-4 margin, the court last week declared that governments may indeed grab someone's home and give it to private entities simply to boost tax revenues.

That means that the government, after going through a few formalities, may bulldoze your home and hand the land over to politicians' friends and supporters. Those of us who live in states where the civic culture is frayed, and government seems to operate in no small part to benefit special interests, have cause for concern.

In rendering their ruling, the majority upheld neither the plainest mandate of the Fifth Amendment nor the Founders' oft-stated views that the protection of property is crucial to individual liberty. As shrewd men who were well versed in history, the Founders recognized that once government could take a person's property at will, it could do pretty much anything to him. "The moment the idea is admitted into society that property is not as sacred as the laws of God, and that there is not a force of law and public justice to protect it, anarchy and tyranny commence," John Adams warned in 1787. Certainly, the experience of communist societies bears out his concern.

But, last week, only four justices - Sandra Day O'Connor plus the court's so-called extremist conservatives, Antonin Scalia, Clarence Thomas and William Rehnquist - stood up for the Founders' vision, and for the little guy, against the power of the state. The "liberal" members of the court sided with government and developers.

Ms. O'Connor laid out in plain language the implications.

"Any property may now be taken for the benefit of another private party, but the fallout from this ruling will not be random. The beneficiaries are likely to be those citizens with disproportionate influence and power in the political process, including large corporations and development firms," Justice O'Connor wrote.

Now, she warned, "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."

Would Washington, then, lead the charge to protect property? Unlikely. The supposedly conservative President Bush, for instance, often seems to be a friend of large corporations and of the use of goverment to benefit them. He issued a classically mushy response last week through his press secretary, Scott McClellan: "(W)e were not a party to that case. The president has always been a strong supporter of private property rights. Obviously, we have to respect the decisions of the Supreme Court, and we do."

Essentially, it seems, the only check on government's overreaching in land taking will be politicians' fear of public criticism and angry voters. But since few property owners will be targeted, and their opponents will be politically strong, that is a slender reed on which to lean.

Last week's ruling offers another reminder of the importance of the next appointments to the Supreme Court. Those who admire the Founders and the country they created can only hope that future appointees will understand the Constitution and limited government. H.L. Mencken wouldn't be very optimistic about that.

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