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Monday, June 27, 2005


After careful consideration, I doubt there is any conservative lawyer who has expressed his feeling concerning the Kelo case as well as Eugene Volokh at The Volokh Conspiracy :
I've been trying all day to craft a post that could capture my astonishment--ok, outrage--towards this ruling. But I keep getting so wound up that I have to scrap it. I'll just give you a few snapshots of my false starts as Subject Lines for posts since mid-day today:
1. Government by the "Honor System": The only restraint on government violations of the Bill of Rights is the "honor system"--certainly would make it easier to conduct the war on terror and censor political criticism if those rights were also enforced by the honor system...

2. Wal-Mart Celebrates: Now Wal-Mart need not lobby for huge development and tax subsidies for its new stores, it can just get the government to take the land it wants...

3. Would the Supreme Court feel the same way if Pfizer was building its new office on the Chevy Chase Country Club?...

You can probably get the drift of why I scrapped each of these as perhaps being a bit too over-the-top.

So I'll just add--temperately enough, I hope--that I thought the purpose of the Bill of Rights was to create rights that would be protected from the government, so that we wouldn't have to rely on the honor system of the government to do the right thing, but had rights that would be enforced. Why not apply the honor system to constitutional protections for speech, religion, and criminal procedure? We can't trust the government when it comes to allowing a prayer at a high-school graduation, but we can when it comes to taking an old-woman's house in which she raised her family? It would sure make the war on terror easier if the government could just arrest anyone in the name of the public good as long as it cut an undercompensatory check for the inconvenience afterwards.

The potential for abuse in this ruling is obvious, and the fact that governments cannot be trusted to do the right thing is exactly the reason why the Michigan Supreme Court reversed Poletown earlier this year. And Justice Thomas hits the nail on the head when he observes that it won't be (and historically hasn't been) the rich and powerful who are finding their homes condemned and given to corporations, Wal-Mart, or simply someone who will build a bigger house and promise to pay more property taxes (as Will Wilkinson observes, "That is, if you have something somebody richer than you wants, watch out.").
Sure it took him a couple of tries, but all the false starts were pretty good.

Limits on the government? Let's suppose you live in a nice neighborhood and your house is taxed on a valuation of $300,000. However, if Joe Big Developer convinces the local authority that by condemning your house (and those of your neighbors) he will build a development of homes which will be valued at $600,000 (doubling the revenue to the local authority) then you can pretty much say adios to your house if the local authority bites on the deal. Think it won't happen? Just wait.

My suggestion: time to check out the protections offered by your state constitution. As I understand it, state consitutions can provide greater protection than those offered by the US Constitution (but not less). Therefore, it may be possible to stop the madness by using local law. What an interesting result the Supremes may have wrought by blowing off the clear intent of the founders - bringing back the importance of states.

Update: What a typo rich environment. I think I caught most of them. Never let the gremlins have their way.

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