Kelo v. City of New London: Attack on Nostalgia and Our Fundamental Rights

I know this case isn’t considered recent news, however it is one of those court cases that are very controversial and it’s future ramifications are tremendous; I predict this case will come up again.

I have many feelings towards Kelo v. City of New London, a Supreme Court case decided in 2005 that states government can use eminent domain to take over private property for private use if there is “public use” that comes out of it. Eminent domain is when the government takes over private property for public use, however the government must offer the fair market value of the property. Also, a stipulation of this is that it must be for “public use”.

Now, after reading about this case the thing that struck me was how the Court defined “public use”. They defined it as something for the good of the public and that benefits the townspeople’s general needs. They were planning on building office buildings for Pfizer on the land parcel they wanted to take over. This isn’t exactly what “public use” means to me, because I see it as something we get to use (like an airport) and I think the decision that it is “public use” because it brings more taxes for the community, doesn’t correlate well with the original intent of the Founders. I believe eminent domain was mainly used during wartime for hospitals and such and now is more commonly used (and stretched a little) to include airports, roads, etc. And that’s what the Founders meant it to be. I don’t think they ever imagined it to be applied to taking over private property to give to another private agent (like a company). Where do we draw the line? If the government uses eminent domain to take over this land for this company because the company generates more tax revenue, then who’s to say they won’t do that to you. No homeowner is safe under this law and this is the pinnacle of government interference into your life. They are dictating whether the property YOU bought shall remain yours or not.

The majority opinion of this case could be considered a loose constructionist view of the Constitution. Meaning, that the interpretation of the text of the Constitution was done so to adapt with changes within America and doesn’t always adhere to what the Founders intended. Loose constructionists think of the Constitution as a living document to which interpretations of the text can be changed with what society is like today. This is just a general assertion, but most liberals tend to be loose constructionists and most conservatives tend to be strict constructionists. Many great landmark decisions on social and civil liberties issues have been decided in a loose constructionist manner and rights of the people (and many people who previously didn’t have very many rights) were expanded and protected. One prime example of this is Roe v. Wade. The “right to privacy” was used as the Constitutional basis for the argument which was, that it shouldn’t be illegal for women to get an abortion (and as we know, there has to be basis for their decisions in the text of the constitution). However, nowhere is privacy expressly and explicitly mentioned, but it is implied in some amendments (like the 3^rd amendment) and so the judges expressed that a privacy right was “written in the penumbras” of the Constitution. I hope this example accurately illustrates what loose construction is; it could be seen as almost political advocating. They are deciding what is right and then molding the Constitution around their beliefs when really they are supposed to analyze what the Constitution says and then form their opinions.

I think many wonderful things (like women’s right to an abortion, and desegregation) have come out of loose construction but there is a potential of unspeakably horrible things to come out of it as well which could undermine the Supreme Court as an institution. One example of this is Plessy v. Ferguson where nowhere in the Constitution is separate-but-equal attached to the Fourteenth Amendment. It is obvious that the intent of the people writing the Fourteenth Amendment was to end discrimination, which segregation helps uphold but the Supreme Court of the time was able to shape the Constitution around their agenda. That is one of the dangers of loose construction; you get nine guys (and girls) in a room deciding the fate of all Americans and because of this potential horrible threat we have the Constitution. Whereas, a strict constructionist sticks to what the Constitution expressly says and may not be able to reach the heights a loose constructionist can, but also won’t reach the depths that can potentially happen with loose constructionist theory.

Another thing that irked me about Kelo is that it violates principles we hold so dear, like the right to “life, liberty, and property”. A right to property is something that is essentially American and has been in our lives since the very beginning (it’s found in the Constitution). We hold our property rights so dear and we fiercely protect them. Our property is an extension of ourselves and we have evolved to believe that WE have control over our property because it is OURS. Our homes are so important to us. They are not just four walls and a roof but they represent so much more. They represent nostalgia and are what help us remember our past and gives us hope for our future. Our homes are those hot summer afternoons where you sit on the porch, and can smell the grass, and are eating an ice cream cone and blowing bubbles. Or it’s camping in your backyard and playing baseball until it’s too dark you can barely see the ball, but you still keep on playing. Or it’s the warm family dinners laced with laughing and joy and rolls. It’s all of those things and that’s what the government is taking away to replace it with offices. Really? That just doesn’t seem right to me. Property is a basic tenant of our government and this has been raped by this decision. This property right has been severely diminished by Kelo because the government control over our property has just significantly expanded and the reasons why they can take our property away from us have expanded as well. I feel this basic principle of American life was very much overlooked by the Court during this decision and very much hope that this case will be overturned if this issue comes before the Court again.

To learn more about the case: http://www.oyez.org/cases/2000-2009/2004/2004_04_108 (I recommend listening to the oral argument; it's fascinating!)
Aftermath of Kelo: http://online.wsj.com/article/SB10001424052748704402404574527513453636326.html
Knowledge on strict vs. loose construction: Supreme Court/Government classes