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SCOTUS: What a Tangled Web They Weave

It says here that some senators and representatives are grumbling about the recent Kelo decision handed down from our Judicial Overlords. Of course, much grumbling is in order, considering the reckless extension of eminent domain jurisdiction. Recall that Kelo validated the seizing of an individual’s property for private development encouraged in the name of potential future tax revenues and other ephemeral gains.

However, the suggestions coming out of both the House and the Senate carry the unworthy tone of a legislative branch crouching in the shadow of the judiciary branch’s raised fist. Many suggestions deal with withholding federal money from projects that utilize land seized under Kelo. It’s a nice gesture, but why on earth would Congress not simply pass a statute limiting government seizures to only those that have a clear public purpose? Who’s in charge here?

But wait…why on earth would Washington have anything to say? The seizure in Kelo, like most such cases, was a state affair. Why have we seen not a single state statute in response to Kelo? Hmmm…could it be because a Supreme Court decision trumps state law and this is another preemptive strike against Federalism?

Judicial supremacy is not merely an undignified vexation for a free people. It is in fact an excruciating deliquesce with serious repercussions for the entire American enterprise. An unaccountable, unabashed judiciary provides the federal legislature with a ready accomplice when they feel compelled (as they often do) to abdicate their responsibility. An emasculated Congress leads to less participation in the federal legislative process. States decline in influence, and measures to keep the States on life support often come from executive officers. And so we circle the bowl, and will until drastic action is taken.

Comments (2)

John Paul:

>>>It’s a nice gesture, but why on earth would Congress not simply pass a statute limiting government seizures to only those that have a clear public purpose? >>>

Because their judicial masters say they can't.
The states as soverigns in their own right have eminent domain power unchecked by the federal constitution (It is a power resevered to the states under Amendment 9/10), except to the extent that the 5th Amendment is incorporated into the notion of liberty under the 14th Amendment. And while remedies for 14th amendment violations may be established by Congress (section 5), the "rights" under the 14th amendment are determined by the Court. (I forget the case name, but the Court articulated this principle when evaluating the Religious Freedom Restoration Act, which attempted to reverse by law how the Courts enforced the 1st Amendment Free exercise right incorporated under the 14th amendment.) I cannot imagine a different result were Congress to pass the law you suggest.

Also, almost all urban economic development is done with federal grant money (directly), or with state grant money that is provided in part with federal aid (subject to federal strings of course). This is likely to be quite effective, and something that O'Connor would regularly approve of. (E.g, abortion, but no mandated federal funding, No federal gun free school zones, deprivation of federal funding for states that do not have such laws.)



Good points. Thank you.

The federal legislation I had in mind would of course only pertain to federal takings. But one would hope that the State legislature would take up the torch and limit such takings within their borders. I have subsequently read that many states are considering that, but there is nothing on the books yet.

The power of the purse has always been an important tool for Congress, and I agree that a law like the ones suggested would be effective. I only meant to use this post-Kelo discussion to point out the larger problem of Congress being subservient to the Court. To the best of my limited knowledge, Congress has never passed "takings' legislation. All the Constitution will tell us is that state and federal government’s power to seize private property sits along a continuum from just about "whenever they want" to "almost never." A hundred years ago, the needle pointed toward "almost never." After Kelo, the needle points toward "whenever they want." It’s good that our elected officials have noticed that there has been a change and that it’s bad. My question is this: Where the hell have they been? If governments are going to be freer to take private property, Congress needs to drive that bus, not ride it in a booster seat with a sippy cup.

Congress needs to begin to assert itself against a usurping judiciary. Withholding funds may help keep private property reasonably safe, but it tacitly acknowledges that it has to work in the shadow of the Courts.

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