Saturday, June 25, 2005
Much commentary and consternation has already followed this US Supreme Court 5th Amendment takings case. By a 5-4 decision, the Court affirmed the decision of Connecticut's high court allowing the City of New London to take by eminent domain the private residences of petitioners so that an office-park development could be established on the property. Much has been made in the media of Justice O'Connor's dissent, in which she was joined by Rehnquist, Scalia, and Thomas. However, Justice O'Connor's dissent is unpersuasive. J. O'Connor tries to distinguish the instant case from the prior Court decisions in Berman and Midkiff. In this she sets herself an impossible task, for as the majority insists, Kelo follows perfectly from Berman and Midkiff. It is Justice Thomas, in a truly radical, lone dissent, that presents the only rational response to the majority -- overturn Berman and Midkiff and restore the origin meaning of the term "use," as the Framers understood it. I imagine I know why Thomas would join O'Connor's dissent as she sought that crucial fifth vote, but why did no one join Thomas? What in his analysis did Scalia disagree with?