23. June 2005 · Comments Off on Slouching Toward Fascism · Categories: General, Politics

Straight on the heals of Raich, which establishes that Washington can limit any activity, we now have Kelo, which establishes that we have private property rights only so far as it is convenient to government. In her dissenting opinion, Justice O’Connor says it:

In dissent, O’Connor criticized the majority for abandoning the conservative principle of individual property rights and handing “disproportionate influence and power” to the well-heeled.

“The specter of condemnation hangs over all property,” O’Connor wrote. “Nothing is to prevent the state from replacing any Motel 6 with a Ritz-Carlton, any home with a shopping mall, or any farm with a factory.”

At least Justice Kennedy seems to recognize some limits to the license granted to governments by Kelo:

Kennedy was not so reticent. Although he joined the Stevens opinion in full, it is clear from his concurring opinion that he sensed that the prospect of abuse was more evident than Stevens had acknowledged. Since his vote was necessary for the city of New London to prevail, his separate opinion in some sense may be said to be controlling.

According to Kennedy, if an economic development project favors a private developer, “with only incidental or pretextual public benefits,” that would not be tolerated even by applying the minimum standard of “rational basis review.”

His opinion elaborated: “There may be private transfers in which the risk of undetected impermissible favoritism of private parties is so acute that a presumption (rebuttable or otherwise) of invalidity is warranted under the Public Use Clause.” He called it a “demanding level of scrutiny,” thus indicating that it was something like “rational basis-plus.”

He did not spell out such a heightened standard further, saying the Kelo decision “is not the occasion for conjecture as to what sort of cases might justify a more demanding standard.”

Glenn Reynolds sees the probability of political fallout:

I predict that this will be a big political issue, on both the left and the right. For Bush and the Republicans it’s a big vulnerability — if they don’t do anything about it, many conservatives will stay home in disgust at the next election. On the other hand, if they do something — like, say, backing Congressional action to limit takings for private use — they’ll offend wealthy real estate developers, merchants, and influential local populations. They’ll be squeezed, and I don’t think that “help us confirm our judges to reverse this” will be a sufficient answer, though they’ll try to make it one.

On the left, it’s seen (rightly) as a victory for the hated Wal-Mart, and as a rule whose burden is sure to fall mostly on the poor. (When did a city ever level a rich neighborhood for this sort of thing?) On the other hand, the left isn’t big on limits to government power, especially in the economic sphere.

It’s certainly a hot issue on talk radio and in the blogosphere already. I suspect it’ll stay that way through the 2006 elections.

Perhaps this will drive more people to vote Libertarian? That would be a good thing.

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