'Crown' rules (eminent) domain
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'Crown' rules (eminent) domain

Palm Beach Post | August 29 2005
By Tom Blackburn

"The poorest man may in his cottage bid defiance to all the force of the Crown. It may be frail, its roof may shake, the wind may blow through it. The storms may enter. The rain may enter. But the king of England may not enter. All his forces dare not cross the threshold of the ruined tenement."

Those famous words, from a speech in 1760 by William Pitt the Elder, are one of the world's great quotes. The thought wasn't exactly true, of course, even at the time. British history shows many violations. But a violator in those days had to make a pretense of respecting Mr. Pitt's aspiration and explain why he believed that it didn't apply to his violation.

Mr. Pitt was describing, vividly, what Supreme Court Justice William O. Douglas called "the right to be left alone." Justice Douglas held that the right is implied in the Ninth Amendment to the Constitution. Some of Judge John Roberts' more enthusiastic supporters hope that he will join other justices in ruling the right to privacy out of the Constitution again. The Douglas precedent was part of the Roe vs. Wade decision. Rather than argue that it was applied wrongly in Roe, which would require an effort of the intelligence, the root-and-branch reformers — the ones who do whatever it takes to get their way — would just sweep privacy away.

Who'd notice? The Patriot Act was written, and renewed, to allow the king to march right in with the wind, the storms, the rain and his electronic devices. It justified all that as a response to a threat that, we are told, no mortals ever faced before. The poor man's cottage — and the rich man's mansion, for that matter — are being invaded by government left and right.

If you still think a person's home is his or her castle, ask the Israeli settlers from Gaza what they think. And they live in what's supposed to be the democracy of the Middle East. They got into their homes for reasons of state, and they were thrown out for reasons of state. Long live, ahem, the state.

But you don't have to go to Israel to ask. Ask the U.S. Supreme Court. The court decided in June that the city of New London, Conn., could take the homes of Suzette Kelo and Wilhelmina Dory under eminent domain and call it economic development. The city didn't claim that their homes were blighted, as cities did in old-style urban renewal. Nor did it claim that the public would have access to what it was helping developers build. It merely claimed that the private development replacing their homes will, as the Supreme Court majority put it, "provide appreciable benefits to the community, including — but by no means limited to — new jobs and tax revenue."

The record doesn't reveal what is covered by the words "by no means limited to." With sports stadiums, one of the alleged benefits is being able to call yourself a "big-league city." As everyone knows, people in Florence and Copenhagen eat their hearts out because their cities aren't up to the big league level of Arlington, Texas. No doubt, New London expects some such intangibles, and no one should notice if private players make more money from New London's public-private project than the public gets in tax benefits. That's how it usually works.

The court divided 4-4-1 in this decision, with Justice Anthony Kennedy concurring with the four who wanted to leave New London unchained, but with somewhat less enthusiasm. Those four, usually in the liberal bloc, primly took a conservative stance. The court, they said, should not second-guess local authorities. Local authorities, as everybody knows, never find themselves in league with private interests against the general good, so it's comforting to see the court wanting to keep its hands and eyes off such takings.

In the dissent, Justice Sandra Day O'Connor wrote that "under the banner of economic development, all private property is now vulnerable to being taken and transferred to another private owner so long as it may be upgraded — i.e., given to an owner who will use it in a way that the legislature deems more beneficial to the public — in the process." In case you didn't get it, Justice O'Connor added, "The beneficiaries are likely to be those citizens with disproportionate influence and power in the political process, including large corporations and development firms. As for the victims, the government now has license to transfer property from those with fewer resources to those with more."

Your castle is increasingly a thoroughfare for the king, his minions and his best-connected friends. Violators don't even pretend that they are making an exception.

 

 

 


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