Kelo et al v. City of New London: A Victory for Federalism; a Victory for Democracy

Last week, the Supreme Court handed a solid victory to federalism, communities, and voters. Surprisingly, the reaction has been overwhelmingly negative.

In Kelo et al vs. City of New London, the court ruled that it would not stand between citizens and their city councils.

Citing the need "of affording legislatures broad latitude in determining what public needs justify the use of the takings power," Justice Stevens upheld the right of communities to determine how best to utilize the 5th Amendment power known as eminent domain.

Americans across the political spectrum hit the roof. Michelle Malkin called the ruling a "devastating blow against homeowners and private property rights." Virtual Memories said, "Nice job by the Supreme Court, deciding that property seizure for private development is Constitutional. I guess I've changed over the years, because I never thought I'd say, 'I really agree with Rehnquist, Scalia and Clarence Thomas on this one.'"

The minority's dissent, written by Justice O'Connor, is an eloquent defense of private property rights, opening by arguing, "Under the banner of economic development, all private property is now vulnerable to being taken and transferred to another private owner, so long as it might be upgraded—i.e., given to an owner who will use it in a way that the legislature deems more beneficial to the public—in the process."

One of the interesting things about the response to Kelo is that the Court didn't interpret anything differently than it had in the past, nor did it create what many blogs and individuals seem to be asserting: a previously non-existent right of property seizure.

What the court said is that it will continue to defer to the most local units of elected government in matters relating to eminent domain. In other words, my fellow Americans, the Supreme Court ruled 5-4 that we are responsible for the laws governing property seizure in our states, and if we don't like those rules, we have to change them. This should be music to the ears of conservatives, but instead it has been jeered from the right as a liberal ruling.

Property ownership is radically unlike other issues that Americans and the courts debate today. Gay marriage and affirmative action, for instance, are issues that are deeply important to a small minority of Americans on either side of a deep divide. Private property, though, is a concept that applies universally, and all Americans, even children, understand that when a person buys something, it belongs to him or her. (It takes adults to explain the vagaries of taxation, of course.)

Children also fundamentally understand the notion of democracy without too much difficulty. It's quite straightforward: people vote, and the person with the most votes gets to make laws. If the person makes bad laws, he or she won't get the most votes in the next election. Fundamentally, that's how a republican democracy is supposed to work. The fact that this very basic overview bears almost no relation to our actual democratic process is worth mentioning.

The ruling of the Court in Kelo is, at its heart, a direct repudiation of an electorate that believes that government can be allowed to operate without oversight.

America is a place where problems get solved, and it always has been. Political innovation was the key to the early success of the republic, and technological innovation has long propelled American economic power far beyond our shores. America is a place where individual liberty extended the do-it-yourself ethos to every sphere of society and life. "The American Dream" itself presents the template: America is a place where people are self-made and success chases after hard work and smart living.

Why did none of the petitioners in Kelo run for office, or recruit others to do so? Kelo was initially filed in October 2000, and an injunction protected the majority of the petitioners' properties until the SCOTUS ruling. That left a long period of time to recruit city council candidates for the 2002 and 2004 elections who would pledge to revamp the development project and protect private property.

America is not a place where those who own homes are out of the mainstream. It's not as if the salient issues of the case are foreign to New Londoners or anyone else in America. The state is taking a few citizens' homes and land to give them to private developers who will build a private mixed-use community of office/residential space. This isn't rocket science; this is the foundation of populist politics in a republican democracy.

Have we really reached a point where Americans won't respond to threats to their homes? I don't believe so, and while not every candidate who ran for any of New London's seven at-large council seats, (New London appears uniquely suited for this sort of populist rebellion) they wouldn't have to. A bloc of three votes would be a big problem, and even two defeats in 2002 would have made the case clearly that the rest were looking at numbered days in office.

Local elections always have the lowest turnout, making grassroots organizing that much more powerful. New London had less than 30,000 people represented by 7 councilors when Kelo was begun. That's about 4,200 citizens per representative. That's a manageable figure for a grassroots uprising with a platform drawn from the issues in Kelo: private property rights, job creation, and smart growth.

But maybe that's not who we are as a country anymore. Maybe the philosophical offspring of the men and women who waged war against the greatest power on Earth at the time in order to be free are reduced to a people that employs attorneys to take their stands for them.

The Men in Black just said that they won't protect that people. How could they? And why should they?