BCT Editorial – 6/28/05

This page was last updated on June 28, 2005.

A fine line; Editorial; Beaver County Times; June 28, 2005.

I was waiting for this editorial. The author would have us believe the Times supports property rights, while at the same time it published four editorials from March 31^st to May 31^st arguing against property rights when it comes to smoking.

Below is a detailed critique of the subject editorial.

“A closely divided U.S. Supreme Court handed down a ruling last week that shows just how important the next few appointments to the nation’s top bench are going to be, and it’s in an area that few people are giving any thought to - property rights, and, by extension, environmental rules and regulations.

“In a significant decision, the court ruled 5-4 that local governments may seize people’s homes and businesses against their will for private development. The Associated Press reports the decision involved some residents of New London, Conn., whose homes have been slated for destruction to make room for an office complex.

“The residents argued that cities have no right to take their land except for projects with a clear public use, such as roads or schools, or to revitalize blighted areas.

“The five justices in favor of this misuse of eminent domain were John Paul Stevens, who wrote the majority’s opinion, Anthony Kennedy, David H. Souter, Ruth Bader Ginsburg and Stephen G. Breyer. The dissenters were Chief Justice William H. Rehnquist and Justices Antonin Scalia, Clarence Thomas and Sandra Day O’Connor, who wrote the dissenting opinion.”

[RWC] You’ll note the majority consisted of the four consistently liberal justices and one of the two “fence sitters,” Justice Kennedy. The dissenters consisted of the three consistently conservative – or originalist – justices and the other fence sitter, Justice O’Connor.

Given the Times’ professed position on this issue and its own political leanings, you can understand why the editorial failed to note the ruling was along conservative/liberal lines.

“The majority’s ruling is troubling. As O’Connor wrote, cities should not have unlimited authority to uproot families, even if they are provided compensation, simply to accommodate wealthy developers. We would have preferred the court had followed her line of reasoning because property rights are one of our nation’s founding principles.”

[RWC] “Wealthy” is relative. As long as another person’s use will generate more tax revenue, what’s to stop government from taking property from one homeowner and giving it to another because the new homeowner plans to build a more expensive house?

We need to remember this situation has local relevance. If you recall, eminent domain was used in 2004 by Hopewell Township to take land from a homeowner and give it to a residential developer so he could use it for a sewer line. Without a sewer line, the developer could not build his bunch of new houses. If I recall correctly, the Township justified its position by noting increased tax revenue from the housing development. The Beaver County Court upheld Hopewell’s taking of the land.

“However, that comes with a huge caveat.

“Benjamin Wittes wrote in the May issue of The Atlantic Monthly that there is a movement afoot in the conservative ranks that sees environmental laws as violating the Fifth Amendment’s takings clause, which prohibits government seizure of private property without ‘just compensation.’

“Wittes reports that in ‘recent years the courts have made aggressive use of the concept of ‘regulatory taking’ - that is, government action that so diminishes property values as to constitute a taking even without formal expropriation.’

“Wittes wrote that the underlying theme is ‘a libertarian suspicion of regulatory power. Environmental laws represent some of the most aggressive uses of federal power, and by their nature they limit the use of private property, sometimes quite intrusively.’

“Environmental law pushes the power of the federal government to the constitutional limit, and any tightening of those limitations, no matter how small, could have a domino effect on environmental law, Wittes wrote.

“President Bush is expected to fill two or three Supreme Court vacancies. We can only hope that his nominees see the folly of the Connecticut decision but understand the value and importance of environmental regulations. It’s a fine line, but, as Wittes pointed out, some conservatives are walking it.”

[RWC] The only way that President Bush’s nominees will “see the folly of the Connecticut decision” is if they are conservative/originalist. I think it’s fair to assume the Times will oppose any conservative/originalist nominees.