The dukes of Kelo
In the very first episode of the first season of the Dukes of Hazzard, the Hazzard County Health Department threatens to close a local orphanage unless its private owners can bring it up to code. The problem is, they have no money.
Of course, the threat to the orphanage has nothing to do with the health code and everything to do with the fact that Boss Hogg — Hazzard County’s crooked kingpin — wants the land and is trying to use the power of the county government to take it away. Boss Hogg owns the county government. As he tells the sheriff, “I’ve overpaid any debt I’ll ever have to you — I married your fat sister!”
In the end, the Duke boys find the money to save the orphanage. But if poor Boss Hogg had just gone to the U.S. Supreme Court, those orphans would be out on the street today. He could have seized the land for private development through the power of eminent domain by arguing that Hazzard County would get more tax revenue from his development than it would from any orphanage.
That would be a happy ending by the standards of the recent Kelo v. New London decision in which five justices gutted Americans’ Fifth Amendment property protections. The extraordinary effect of this is that the Constitution now protects your right to burn the flag and sell virtual child pornography, but not your right to keep the home you’ve owned and lived in all your life.
Justice Sandra Day O’Connor’s dissent in this case was the second best decision she’s made in 24 years on the court (the best, of course, being her recent decision to retire). Unfortunately, though, O’Connor was on the losing side. Under the legal doctrine of eminent domain, it has always been within the power of government to take for public use — to build roads or parks, for example — within the limitations of the Fifth Amendment to the Constitution: “nor shall private property be taken for public use, without just compensation.”
But with Kelo, the court has accepted almost any “public benefit” as a “public use.” The court’s decision allows the city of New London to seize fifteen properties from nine private owners for the sake of a city-backed development plan that will hand the land over to private developers on a 99-year lease for $1 per anuum. The project will supposedly increase tax revenue and bring more jobs to the city. As O’Connor writes in her dissent:
[T]he Court today significantly expands the meaning of public use. It holds that the sovereign may take private property currently put to ordinary private use, and give it over for new, ordinary private use, so long as the new use is predicted to generate some secondary benefit for the public-such as increased tax revenue, more jobs, maybe even aesthetic pleasure.
To begin with, it is at least debatable — and probably flat wrong — to assert that a cash-flush government is in citizens’ best interests. But the general threat to property owners is very real, especially for poorer owners and non-tax-producing owners. Days after the Kelo decision, two businesses in Oakland, Calif. — Revelli Tire and The Autohouse — were thrown out of their shops by the city government in favor of a condominium development. John Revelli told The San Francisco Chronicle, “The city thinks I cause economic blight because I don’t produce enough tax revenue. We thought we’d win, but the Supreme Court took away my last chance.”
Revelli’s business will make way for a city-subsidized real estate development that includes 1,200 market-rate apartments and condominiums and will make a fortune for a few well-connected developers. Boss Hog wins again.
The political consequences of this decision will redound through many election cycles and perhaps many Supreme Court nomination battles as well. Any homeowner — and really anyone at all — can see that this decision is a complete outrage. The American people are known for their sense of fairness, and so I’d hate to be a politician defending Kelo on the public stage.
That’s exactly what House Democratic leader Nancy Pelosi is doing. As the House began preparing legislation to withhold all federal funds from “redevelopment” projects that abuse eminent domain for private use, Pelosi declared her opposition. “I would oppose any legislation that says that we would withhold funds for the enforcement of any decision of the Supreme Court, no matter how opposed I am to that decision,” she said. “And I’m not saying that I’m opposed to this decision.”
Pelosi added this fatuous assertion that the Supreme Court is an all-powerful branch of government: “This is almost as if God has spoken.”
Rep. Harold Ford (D-Tenn.), a candidate for Senate in Tennessee next year, has actually endorsed this decision, to the delight of the four candidates seeking the Republican nomination. Expect to hear more about “Home-Robber Harold” in the 2006 cycle, and place your bet that this seat stays in Republican hands.
More immediately, any nominee for the Supreme Court must now be asked his or her opinion of Kelo and eminent domain. This will become even more important if Republicans ever try to defeat a Democratic president’s nominee in the future — “If you’re for Kelo, I’m voting against you.” This is a position the public can appreciate and support.
The landowners of New London’s now-condemned Fort Trumbull neighborhood fought long and hard to keep their homes. Their fight will not be in vain if justices respectful of the Constitution are confirmed and “progressive” legislators are thrown out of office because of this decision.
In the meantime, they and others whose property is threatened still have some means of clever resistance at their disposal, if they’re willing to play dirty. Introduce an endangered slug into your backyard. Leave your hose on overnight and call the EPA so that they can declare your property a “wetland.” If our judiciary and local governments refuse to respect the property rights that make our free society possible, we can at least make their legal theft as costly as possible.
David Freddoso, a native of Indiana, is a political reporter for Evans and Novak Inside Report.