Lessons from the Kelo Decision

July 4,  2005  

One week after the Kelo decision by the Supreme Court, Americans are still reeling from the shock of having our nation’s highest tribunal endorse using government power to condemn private homes to benefit a property developer.  Even as we celebrate our independence from England this July 4^th, we find ourselves increasingly enslaved by petty bureaucrats at every level of government.  The anger engendered by the Kelo case certainly resonates on this holiday based on rebellion against government.

The City of New London, Connecticut essentially acted as a strongman by seizing private property from one group of people for the benefit of a more powerful private interest.  For its services, the city will be paid a tribute in the form of greater taxes from the new development.  In any other context, what’s happening in Connecticut properly would be described as criminal.  However, the individuals losing their homes understand that stealing is stealing, even if the people responsible are government officials.  The silver lining in the Kelo case may be that the veneer of government benevolence is being challenged.

Kelo has several important lessons for all of us.  We are witnessing the destruction of any last remnants of the separation of powers doctrine, a doctrine our founders considered critical to freedom.  The notion that the judicial branch of government serves as a watchdog to curb legislative and executive abuses has been entirely exposed as an illusion.  Judges not only fail to defend our freedoms, they actively infringe upon them by acting as de facto legislators.  Thus Kelo serves as a stark reminder that we cannot rely on judges to protect our freedoms.

It is folly to believe we will regain lost freedoms if only the right individuals are appointed to the Supreme Court.  Republican presidents, including conservative icon Ronald Reagan, have appointed some of our very worst Supreme Court Justices.  In today’s political context, it frankly matters very little whom President Bush appoints to replace Justice O’Connor.  Even the most promising jurist can change radically over the course of a lifetime appointment.  We are supposed to be a nation of laws, not men, and the fixation on individuals as saviors of our freedoms is misplaced.  America will regain lost freedoms only when her citizens wake up and reclaim a national sense of self-reliance, individualism, and limited government.  A handful of judges cannot save a nation from itself. 

The Kelo case also demonstrates that local government can be as tyrannical as centralized government.  Decentralized power is always preferable, of course, since it’s easier to fight city hall than Congress.  But government power is ever and always dangerous, and must be zealously guarded against.  Most people in New London, Connecticut, like most people in America, would rather not involve themselves in politics.  The reality is that politics involves itself with us whether we like it or not.  We can bury our heads in the sand and hope that things don’t get too bad, or we can fight back when government treats us as its servant rather than its master.

If anything, the Supreme Court should have refused to hear the Kelo case on the grounds that the 5^th amendment does not apply to states.  If constitutional purists hope to maintain credibility, we must reject the phony incorporation doctrine in all cases-- not only when it serves our interests.  The issue in the Kelo case is the legality of the eminent domain action under Connecticut law, not federal law.  Congress can and should act to prevent the federal government from seizing private property, but the fight against local eminent domain actions must take place at the local level.  The people of New London, Connecticut could start by removing from office the local officials who created the problem in the first place.