The View From 1776

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We are confronted with a dilemma.  On the one hand, there seems no justice in taking people’s homes via eminent domain merely because those homes don’t generate as much in real estate taxes as their proposed replacement with commercial properties.  On the other hand, a Federal legislative effort to counter such actions further augments the already immense power of our socialistic welfare state to meddle in purely local affairs.

The Supreme Court’s recent decision in Kelo v. City of New London has produced a predictable uproar, surprisingly even from socialists like Representatives John Conyers and Maxine Waters.  House Minority Leader Nancy Pelosi, however, remained true to her socialist religious beliefs that collectivizing public power and diminishing private property rights can only be a force for bettering society.

An article in the July 1st edition of the Washington Post reported the following:

“The House voted yesterday to use the spending power of Congress to undermine a Supreme Court ruling allowing local governments to force the sale of private property for economic development purposes. Key members of the House and Senate vowed to take even broader steps soon.

“Last week’s 5 to 4 decision has drawn a swift and visceral backlash from an unusual coalition of conservatives concerned about property rights and liberals worried about the effect on poor people, whose property is often vulnerable to condemnation because it does not generate a lot of revenue.

“The House measure, which passed 231 to 189, would deny federal funds to any city or state project that used eminent domain to force people to sell their property to make way for a profit-making project such as a hotel or mall. Historically, eminent domain has been used mainly for public purposes such as highways or airports........

“The House bill is sponsored by Judiciary Committee Chairman F. James Sensenbrenner Jr. (R-Wis.). Its Democratic co-sponsors include Reps. John Conyers Jr. (Mich.), Maxine Waters (Calif.) and Peter A. DeFazio (Ore.).........

“House Minority Leader Nancy Pelosi (D-Calif.) criticized the measure. “When you withhold funds from enforcing a decision of the Supreme Court, you are in fact nullifying a decision of the Supreme Court,” she told reporters. “This is in violation of the respect of separation of powers in our Constitution.”

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Despite House Minority Leader Pelosi’s assertion, it can hardly be said that legislative action by Congress violates the separation of powers in the Constitution.  The Court did not order New London to seize private homes, it merely said that New London’s taking of property does not violate the Constitution, however questionable an interpretation that may be.  What seems to be intended by Ms. Pelosi’s muddled pronouncement is that the Supreme Court has the final authority to legislate, because only the personal opinions of its Justices (the liberal contingent, at least) correctly reflect liberal social justice. 

But is the proposed Congressional legislation a good idea? 

First, it must be remembered that one of the most fundamental of the Constitution’s checks and balances was the rights reserved to the states.  These were the so-called police powers to deal with the health, safety, and morals of each state’s citizens as they thought best.  From that originalist viewpoint it can be argued that the Federal government should not have been involved in the local Connecticut fracas at all, neither in the Supreme Court, nor in Congress.

The best of all possible solutions would be what may now be occurring in the Connecticut General Assembly, where bills have been introduced to define more stringent limits to “public purpose” takings of private property. 

Let each state pursue the same remedy.  Towns and cities are corporate creatures of a state’s legislature and can be more appropriately regulated locally than by the sledge-hammer, one-size-fits-all approach necessary at the Federal level.  Public purpose may be very different in a western state like Wyoming than in an old and settled state like Connecticut.

The mischief occurs as a consequence of the growing impulse during the 20th century for the Federal government to invade the legislative territory not specifically granted by the Constitution to the Federal government, and reserved to the people and to the states by the 9th and 10th Amendments of the Bill of Rights.

To some extent this was an inevitable outgrowth of the late 19th century development of interstate corporations on a scale vastly larger than anything ever before experienced in the sphere of private economic activity.  Those corporations preferred a single set of Federal regulations to a welter of individual state regulations.  Moreover their interstate operations suggested that their activities might properly come under Congress’s Constitutional authority to regulate commerce among the states.

The muckraking journalists of the first decades of the 20th century – Lincoln Steffens, Ida Tarbell, David Graham Phillips, Ray Stannard Baker, Samuel Hopkins Adams, and Upton Sinclair – popularized the term Robber Barons, and Teddy Roosevelt struck a resonant chord with voters by denouncing “malefactors of great wealth.” The public demanded government restraints on the disproportionate power of Wall Street bankers and corporate directors of “monopolies” in the great cities to trample upon small-town rights and interests.

The unsuccessful 1896 candidacy of William Jennings Bryan, endorsed by both the Democratic and the Populist parties, was based on just this platform.  The victorious McKinley administration leaned toward the traditionalist reluctance to expand the role of the Federal government.  But when Vice President Theodore Roosevelt acceded to the Presidency after socialist-anarchist Leon Czolgosz assassinated President McKinley in 1901, we got our first activist President. 

Teddy was literally a product of Harvard’s swing toward secularity and social-justice activism, under the impetus of the socialism absorbed by Harvard faculty members in their stints to acquire PhDs at the great, socialist German universities (see Our Fathers’ Education).  He was a model for what is now the Eastern liberal establishment: secular, materialist, and agnostic, if not atheistic, fully confident in the power of intellectual minds to reorder society and perfect humanity, provided government were granted enough regulatory power. 

A good example of this mindset was the eugenics movement, which was a product of the Darwinian evolution hypothesis, promoted by Charles Darwin’s cousin, Sir Francis Galton.  Teddy was a supporter and national board member of the American Eugenics Society, which was animated by the belief that scientific administrators had a right and a duty to sterilize women who produced children whose traits would, they declared, mongrelize American society. 

This predisposition reached full flower under Teddy’s young cousin Franklin Roosevelt in the New Deal of the 1930s.  Franklin’s effort failed to secure an immediate majority to approve his socialistic programs by packing the Supreme Court with additional Justices.  But the game was over when several conservative Justices retired, and FDR appointed enough liberals to remove future scruples about mere Constitutionalism.  By 1937 FDR had a fully compliant Court that could find no wrong in collectivized management of the economy in the fashion of Stalin’s Soviet Union and Mussolini’s Fascist Italy.

Had the United States remained true to the Constitution, which prescribed a Federal government of strictly limited powers, the New London eminent domain case would have remained a local Connecticut affair.  The Kelo case reached the Supreme Court only because of the New Deal Court’s expansion of jurisdiction on the theory that the 14th Amendment made states directly subject to terms of the Federal Constitution and the public’s presumption since the New Deal that “there ought to be a Federal law” to right every grievance.  Without this, we would have been spared the ignoble anti-business, socialistic welfare-state lust that drove businesses out of Connecticut and left cities like New London in their dire economic straits.

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