laws. Far more is at stake here than meets the eye, a narrow USSC majority protected us against future far-right judicial activism, and a right-wing noise machine disinformation campaign has been turned up to the max.
The case pitted elected government against property, and elected government won. Whom would a victory for property have helped more, big corporations or ordinary working people?
This case involved an attempt to re-interpret the Fifth Amendment in a way that would have affected much much more than local zoning. For almost 20 years now, the ultra-right has been plotting to roll back government regulatory powers to pre-New-Deal levels using radical USSC stretches of the Fifth Amendment. Funded by millions of dollars from Scaife and other wingnut foundations, far-right think legal think tanks have been trying to cripple elected government's Fifth Amendment regulatory powers in favor of unlimited corporate power. Narrowly, they lost Kelo from a legal standpoint, but they are trying for--and apparently getting--a propaganda/disinformation victory.
Justice Kennedy's concurring opinion puts this week's decision in context: The ruling upholds the presumption that local eminent domain decisions serve a public purpose, and puts the burden on property owners to show otherwise. Clearly, corporations can corrupt elected governments. But had the court ruled the other way, in favor of expansive property rights under the Fifth Amendment, THAT could have benefited corporations even MORE.
The USSC circumscribed corporations' exercise of power through their ownership of property, which is arguably much more pervasive than their corruption of elected governments.
Had the decision gone the other way, environmental regulations, workplace safety, and even minimum wage laws could have been at much greater risk in the near future.
Here are links to the USSC decision and an article from The Nation on the nutty far-right "takings" doctrine.
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From
http://caselaw.lp.findlaw.com/scripts/printer_friendly.pl?page=us/000/04-108.html"... KELO ... v. CITY OF NEW LONDON, CONNECTICUT...
Justice Kennedy, concurring....
This Court has declared that a taking should be upheld as consistent with the Public Use Clause, U. S. Const., Amdt. 5., as long as it is "rationally related to a conceivable public purpose."... This deferential standard of review echoes the rational-basis test used to review economic regulation under the Due Process and Equal Protection Clauses...
A court applying rational-basis review under the Public Use Clause should strike down a taking that, by a clear showing, is intended to favor a particular private party, with only incidental or pretextual public benefits.... A court confronted with a plausible accusation of impermissible favoritism to private parties should treat the objection as a serious one and review the record to see if it has merit, though with the presumption that the government's actions were reasonable and intended to serve a public purpose."
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And, from http://are.berkeley.edu/courses/EEP131/Gieder.pdf :
"The Nation - October 15, 2001
The Right and US Trade Law: Invalidating the 20th Century, by William Greider
"...The Federalist Society organized a lawyers' forum with a provocative title--"Rolling Back the New Deal"--and its star attraction was Richard Epstein, law professor at the University of Chicago and intellectual lion of the right. Epstein's theory of "regulatory takings" galvanized the movement fifteen years ago when his book Takings: Private Property and the Power of Eminent Domain first appeared, describing an ingenious new constitutional interpretation designed to rein in modern government. Regulations, he argued, should be properly understood as "takings" under the Fifth Amendment ("...nor shall private property be taken for public purpose without just compensation"), so government must pay those businesses or individuals whose property value is in some way diminished by public actions....
"The New Deal is inconsistent with the principles of limited government and with the constitutional provisions designed to secure that end." In telephone conversation, I asked the professor for examples and he obliged with gusto. "Most of economic regulation is stupid.... What possible reason is there for regulating wages and hours?" Epstein said. "If my takings doctrine prevails, you have no minimum-wage laws. That's fine. You'd have an OSHA a tenth of the size. That's fine too...." His position ... would not invalidate the regulatory laws that legislatures enact. He would merely make the public pay for them. "We will allow the majority to have its way so long as it's willing to buy off its dissenters at a fair valuation," Epstein told the libertarian magazine Reason.
A host of conservative litigation groups have sprung up to argue Epstein's doctrine in court and taken a series of cases to the Supreme Court. So far, the Court's pro-takings decisions have dealt only with subsidiary questions and stopped short of fully embracing Epstein's claim...."
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