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

The Intrigue of Campaign Finance

A huge decision was made by the Supreme Court recently on the issue of Campaign Finance. The opinion basically states that banning campaign contributions for corporations is unconstitutional because that violates the first amendment (freedom of speech) and campaign contributions are a form of political speech. The case was Citizens United v. Federal Election Commission, No. 08-205 and was decided on a 5-4 vote. Justice Kennedy wrote the majority opinion and was joined by Chief Justice Roberts and Justices Thomas, Scalia, and Alito. Justice Stevens wrote the dissenting opinion and was joined by Justices Breyer, Ginsburg, and Sotomayor.

The other side to this argument is that corporate speech is not the same as individual speech. I don’t know about the strength of this argument because corporations are just made up of many people (the investors, the Board, etc.) and because of that they, generally, have more money than the individual. Should they not be allowed to practice their “free speech” and endorse whom they want because they have more money? The Supreme Court says not. And you may be thinking to yourself; how can they spend the money on campaigns? I don’t know all the logistics, but they have to get the shareholders approval for this because it is their money. So, that is a check on the CEO or the board so that they can’t spend money on campaigns without approval. Even if there isn’t an official “vote” before the money is spent, the shareholders can elect new board members and that is a huge power and check on this type of spending.

This case was so huge because it overturned two precedent cases (meaning these issues have already been ruled upon by the Court), which are Austin v. Michigan Chamber of Commerce and McConnell v. Federal Election Commission. Austin was a decision that basically said corporate restrictions on political spending, more specifically on the support or opposition of a candidate, are okay. McConnell v. Federal Election Commission was the case that upheld the Bipartisan Campaign Reform Act, generally known as the McCain-Feingold Act. McCain-Feingold “banned the broadcast, cable or satellite transmission of ‘electioneering communications’ paid for by corporations or labor unions from their general funds in the 30 days before a presidential primary and in the 60 days before the general elections.” When the Court overturns precedents it’s admitting that they were “wrong” on the previous issues. Because of “stare decisis”, which is, “the legal principle by which judges are obliged to obey the precedents established by prior decisions” (more:http://en.wikipedia.org/wiki/Stare_decisis), the Court really only does this rarely (like in the case of Brown v. The Board of Education of Topeka, Kansas which overturned Plessy v. Ferguson).

The ramifications of this decision are wide-ranging. First of all, we must realize that there are things that may not seem “right” that are protected by the law and that is the problem I have with this case. I do believe there shouldn’t be censorship on free speech and concur with Justice Kennedy’s statement that “When government seeks to use its full power, including the criminal law, to command where a person may get his or her information or what distrusted source he or she may not hear, it uses censorship to control thought. This is unlawful. The First Amendment confirms the freedom to think for ourselves.” But I also agree with something Sandra Day O’Connor said: “Of course I’m worried about it” — ‘it’ being the potential of so much more political spending by corporations — “because so much money has been going into judicial campaign races in recent years. It has the effect of turning judges into these politically elected figures. And [what] the framers of our constitution tried to achieve…was an independent federal judiciary.” Now, she is only talking about the effect on the judiciary, but if that branch was somehow “compromised” by political spending which therefore turns judges into politicians with agendas, then that is most definitely unconstitutional because the judiciary established in the Constitution is supposed to be “independent” from politics and the bullying of politicians. Politicians seem to have views on this issue also. For example, Obama took a swipe at the Court in his State of the Union address when he said, “last week the Supreme Court reversed a century of law that I believe will open the floodgates for special interests — including foreign corporations — to spend without limit in our elections. I don't think American elections should be bankrolled by America's most powerful interests, or worse, by foreign entities.” This decision also affects elections of politicians generally; money is power. And because it seems like the person who puts the most money up wins the nomination for their party…well, that is also interfering with democracy. We, the people, are supposed to decide who our candidates are, not some elitist CEO or corporation with their own agendas. So how do we bridge the gap between free political speech and the hindering of our democratic processes? It looks like we haven’t figured that out yet.

Further reading:

1. http://www.nytimes.com/2010/01/22/us/politics/22scotus.html
2. http://www.cnn.com/video/data/2.0/video/living/2010/01/28/tsr.wolf.oconner.interview.cnn.html: Interview with Sandra Day O'Connor
3. http://www.oyez.org/cases/2000-2009/2008/2008_08_205
4. http://www.nydailynews.com/news/politics/2010/01/28/2010-01-28_full_transcript_text_of_president_obamas_2010_state_of_the_union_address_with_vi.html?page=1: Obama's State of the Union speech