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Monday, June 27, 2005

In high school, I, along with many other students, were asked to read Zen and The Art of Motorcycle Maintainance. It's an interesting book, but one of the more salient points it makes is explicated about halfway through and in a not terribly ostentatious manner. Namely, the book's protagonist undergoes the revelation that "For any given phenomenon, there exists an infinite number of perfectly rational
hypothesis to explain it." The point this is built up to draw attention to the fact that, in the sciences, when theories are created to explain, say, why it is when you release a ball, Plato can say that things of a like nature have a propensity to want to be together, Einstein can say that space is curved (and, oh yea, time too) and
neither of them is wrong in the sense that neither is actually making reference to a metaphysical ideal, but rather is trying to describe a percieved phenomenon. Einstein's description makes the math (itself a description) easier to visualize in a more tactile way, but it's not right.

Which brings me to Kelo v. City of New London, a recently decided Supreme Court case that saw the the Kelo family's (and other's) house seized under the doctrine of eminent domain so that the property could be used for more economically robust purposes. This was done at the recommendation (and under the auspieces) of a private corporation. Anyone who is interested in more legal discussion (being
participated in by more knowledgable and intelligent people than I), there's a whole lot of it at the SCOTUSblog Kelo subsection. There are of course a myriad of arguments about property rights and the special protections a primary domicile ought to be afforded, but those are best left for someone else or another time. Now, I'm not a law-talking person, so my knowledge of the Takings clause and so on is largely based on my limited reading of SCOTUS jurisprudence, the Federalist Papers, and a basic understanding of the world when the fifth amendment was written. On the other hand, I am also possessed of a rare object which the majority in Kelo is apparently not.

I recieved it long ago, when I was just a boy. My father gave it to me as I reached second grade - he told me then that its ancient secrets would help guide me in life, and would give me the keys to success that so many in the world lack. It was filled with rows andcolumns of the very building blocks of thought and understanding, allowing me to deconstruct the complex. This archaic tome has served me well, but I'm afraid I must now implore Breyer, Kennedy, Ginsberg, Stevens and Souter to invoke. It's called a dictionary. You may have heard of it.

See, I think where they got off on the wrong foot is to misunderstand what the phrase "public use" means. The fifth amendment states, "...nor shall private property be taken for public use, without just compensation." Now, the people who wrote this stuff were pretty smart. Pretty good on the uptake. None of this namby-pamby 20th century, inner-city public school stuff for Jefferson, no siree - he knew him some English. So you sort of have to ask: would these guys have added all the qualifiers they did if they hadn't meant for someone to notice them? Luckily, this was asked and answered by the Supreme Court to the effect that we are to treat each word as significant. So that whole "public use" thing should have meaning. And, consulting our handy thesaurus, we find that... nope! "Public" does not in fact mean the same thing as "private."

The rationale that the majority uses to get around this is to say that there is a public interest in having more economic activity. Now, Thomas makes a more elloquent defense of the difference between use and benefit in his dissent, but I don't really feel as if a blistering sermon on the evils of government encroachment is necessary. Again, while the majority has Breyer and Souter, the
dissenters have Miriam, Webster, and Black. (No, not the exhumed corpse of Zombie Hugo Black, back from the dead and forcing the court to question whether 'life terms' extend to the grave, but Black of Black's Law Dictionary. Silly.) See, the word "use" has eleven different definitions, including seven sub-definitions. Yet none of
them would seem to indicate that something's "use" is "an ancillary benefit utterly disconnected from the primary intention and purpose."

See, to me, something being taken for "public use" would connote that, whatever is created, its primary purpose will be one from which the general population will gain. So if one needs to build a highway, any given individual stands to benefit from the transportation it affords. If a firehouse is built, again, everyone benefits. If an office park goes up, then the primary use is going to be for the office owner and the tenants who rent from her. The fact that there is some benefit that the public gains something in the form of increased tax revenue and, presumably, the sale price does not change that the primary result is not for a public use. It should be noted, also, that one of two things is going to be true about the actual aquisition and subsequent sale of the property. Either the aquisition price via eminent domain is less than or equal to the price paid by the government entity. If the former, then the government is clearly not compensating the individuals fairly (as 'just compensation' seems to imply 'fair compensation') and also provides a pretty perverse incentive. Or the latter is true, where the government is simply an intermediary and the private entity is de facto forcing a sale at a deflated rate. We know that the rate is deflated, as ostensibly the offer was made (In Kelo it was) and rejected by the possessor of the property.

This brings me back to where I began. The problem with the court accepting that ancillary goods justify eminent domain takings is very obvious. There will always be a rational explanation the government can put forth as their stated reason. If the court is going to defer in this case, which is so blatently clear, then they're pretty much stuck deferring to the legislature in other cases. Their test ought to be extremely loose, as there is perpetually a danger in the courts overstepping their role as interpreters of the law - but when something happens that is overtly contrary to the intent of the constitution, literal interpretation and common sense understanding of very simple words like "use," the deferral isn't a recognition of their place in the constellation of a Federalistic government, it's turning a blind eye to an actual, real-world injustice. The government's ostensible reason for keeping women from working in the late 18th century was a vested interest in protecting children, but any idiot could see that it had much more to do with upholding the patriarchy. In the fifties, blacks and whites were kept separate on grounds of protecting black children from ridicule when it was obvious that racism was the actual reason. Even today, when homosexuals are kept out of the military because of "unit cohesion," hardly a white, rich, conservative senator can be found who doesn't become mealy-mouthed when forced to talk about a subject their homophobia encroaches upon. When bigotry (and hey, guess who lives in areas that cities want to 'economically develop'? Hint: They aren't named 'Madeline' nearly so often as 'Martinez') is enacted through the legislatures, the court needs to take a real look at what is really going on. Deferral is fine, but putting on blinders is just stupid.

cranked out at 11:40 AM | |

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