Okay, so my first reaction to the Supreme Court's ruling on the New London case was that it smelled seriously funky, but I didn't want to comment on it until I had looked into it a little more. I discovered, to my horror, that the ruling was, in fact, constitutionally sound. And, uh, so was the dissenting opinion. Huh?
(Untwist your panties, Steve; I do have a solid position to take on this one.)
So, yeah, I sided with Scalia on this one. I. Sided. With Scalia. It actually sounds better to say that he sided with me. See, J.P. Stevens said that the taking of private property by the state for public use falls within the Takings Clause of the Fifth Amendment, to which I say "Meh." Only kind of. It all depends on whether or not private commercial ventures would benefit the community enough that handing an 87-year-old woman a check and knocking down her house is something we think is okay. Said clause doesn't really draw a line between the benefits from a highway overpass or a public building and the benefits from a shopping mall. Plus, not every house subject to eminent domain has an 87-year-old woman in it; it could be argued that a shopping mall would definitely benefit the community more than a crack den.
That's where I started to actually agree with the ruling a little bit, because Stevens also made the point that eminent domain covers a wide variety of cases. It wouldn't make sense to rule on the basis of an 87-year-old woman if it would hinder the progress of a town looking to get rid of a crack den. He said that state legislatures and courts were in a better position to "discern local public needs" and that it was their place to make such rulings. And that makes sense.
Except it totally doesn't, because seemingly without realizing it, Stevens did make this ruling on the basis of an 87-year-old woman. The Supreme Court didn't refuse to hear the case because it was better decided in state courts; they heard it and he ruled on it, and now there's precedent. Now, a town is free to tear down a crack den to make room for profitable economic development, which is great, but there's also judicial precedent saying that a community's power of eminent domain is basically unlimited as long as they can make it sound pretty. And that just isn't right.
I had a conversation a few months ago with a law student named Harry who admired Scalia greatly and also thought that he was kind of a dick, an opinion which I greatly respected even if I didn't happen to agree. The conversation wasn't so much about Scalia, though, as it was about O'Connor, who has a tendency to ride the fence between ruling rightly on one case and ruling rightly to set precedent. Harry made the point that sometimes, a Supreme Court justice really does have to screw over one certain party, because that ruling is going to become the law of the land. It could be that that particular party in that particular situation is completely in the right, but that to say so would be to open the door to lots of other parties whose similar situations might leave them entirely in the wrong. I'd never really thought about it that way before, and it really stuck with me.
Justice Stevens, I can give you this guy's e-mail address if you want. See, you've just laid down what amounts to a law saying that a state's rights under the Takings Clause are basically unlimited. Sure, you said that state legislatures can do what they want with it, but how long will it be before a city is knocking down a well-kept low-income neighborhood to build a mini mall and saying, "Hey, Kelo et al. v. City of New London et al. Suck it." O'Connor made the point that "[t]he specter of condemnation hangs over all property. 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." You have given the state the power to steal from the poor to give to the rich, and that's not okay. Maybe in this particular case, your ruling made sense, but you can't rule on one case without considering the impact on the rest of the country years into the future. That's your burden as a Supreme Court justice.
And dude, you made me agree with Scalia.