Question for opponents of 'judicial activism'I was disappointed to read my (increasingly amateurish) local paper re-running this editorial from The Washington Post. The editorial dealt with a prominent eminent domain case before the US Supreme Court. Eminent domain is when the government takes private property for public use. This is quite often done for things like roads.
Eminent domain is controversial but also constitutional. The 5th Amendment reads, "nor shall private property be taken for public use, without just compensation."
So basically the government can take private property for public use provided they give fair compensation to the property owner. Usually, the only question is the definition of 'fair': in other words, how much should the government pay.
But this case is a little different. The city of New London, Connecticut wanted to use eminent domain to seize property not for public use but to sell to businessmen who wanted to re-develop the land into something more economically lucrative.
The city argued that this did indeed constitute public use. Economic development is something in the public interest. The hotel, offices and other business would bring in much more property and sales tax revenues than mere family dwellings. New London is an economically downtrodden area and this would help both the city's coffers and provide employment to residents.
The Post (and, implicitly, my local paper too) said that this is a legitimate way to define public use. In fact, it's taking away land from modest, middle class home owners and giving it to big, politically connected developers. It's nothing less than forcible land redistribution. All that's missing is some 'patriotic' militias and you could just as easily be in Robert Mugabe's Zimbabwe, which also uses the rhetoric of 'economic necessity' to justify this process of punishing the have nots to help the haves.
The Post writes: Traditionally, the courts have shown great deference to legislatures as to what constitutes a public use. Letting the courts make those judgments case by case would greatly encumber many legitimate projects... New London is unquestionably a distressed city in need of economic development, and federal courts shouldn't be second-guessing the city's determination of how best to accomplish that very public goal.
This raises an interesting question, particularly for some conservatives. Should the Court engage in so-called judicial activism to strike down the obviously unconstitutional taking of private property for PRIVATE use? Or should it show 'judicial restraint' and defer to the unconstitutional will of elected officials?