Local Government liscensed to practice real estate by SCOTUS

That's Supreme Court of the United States, for all you new blog-readers out there. Mirror of Justice offers a diversity of excellent commentary on SCOTUS' recent decision in support of New London, Conneticut's practice of Emminent Domain here, here, here, here, here and here.

For those not familiar with the case, CNN--that bastion of Reasonableness has the story here. Fox News has the story here. Note the surprisingly similar tones of skeptism regarding the Court's decision. These journalists almost sound Foolish.

As to MOJ's analyses, I find Rick and Mark particularly insightful. Rick notes here:

would also submit that the Court's failure to take more seriously the constraints that constitutionalism places even on well-meaning government action should also be objectionable from a "Catholic legal theory" perspective, because that perspective includes a commitment to the rule of law. A regime in which the government may take the rightful property of A, and give it to B, simply because (in the government's view) the local economy would be better served by B's use than A's is, in my judgment, one that trafficks more in arbitrary power and cronyism than the rule of law, ordered liberty, human dignity, or the common good, properly understood.

The "common good", after all, is not -- in Catholic Social Thought -- merely the "greatest good for the greatest number", or "the good of the state", or even the "good of the community." In Gaudium et spes, we are told that the common good is well understood as "the sum total of social conditions which allow people, either as groups or as individuals, to reach their fulfillment more fully and more easily." What's more, Gaudium et spes and the Catechism of the Catholic Church proclaim that:

First, the common good presupposes respect for the person as such. In the name of the common good, public authorities are bound to respect the fundamental and inalienable rights of the human person. Society should permit each of its members to fulfill his vocation. In particular, the common good resides in the conditions for the exercise of the natural freedoms indispensable for the development of the human vocation, such as "the right to act according to a sound norm of conscience and to safeguard . . . privacy, and rightful freedom also in matters of religion."

So, it strikes me that the regime approved in Kelo -- i.e., one in which one's ability to use and enjoy rightfully owned property is subject to the government's continuing belief that some other person's use would not be more beneficial, economically -- is difficult to square with "respect for the person as such."

Mark comments in response:

I don't get as emotional about government interference with private property as my friends on the right. While I'm not any fan of government expropriation (hands off my Mini-McMansion on the Main Line, buddy!), I do get quite emotional about the destruction of communities in the name of economic development. That sort of reason raises all sorts of Catholic legal theory concerns: destruction of a subsidiary community (a neighborhood); a bureaucratic, rationalistic, technology-driven conception of the common good; a progressivist ideology that devalues human rootedness in community and tradition. So, for me, the problem with takings for the "public" purpose of either redeveloping public infrastructure or promoting private economic development for public benefit is less (or not just) a problem of interfering with property rights than destruction of community. So -- do I think the Court got it wrong in Kelo? On balance (and perhaps surprisingly), no. By 2005, the Fort was no longer a community. It was mostly dead and gone. Very few people remained -- most had left not because of the new pressure for economic development but because of decades of deindustrialization and white flight in the surrounding areas. I deeply sympathize with the attachment of the few remaining people, mostly elderly Italians (like my own relatives), too frail, frightened or stubborn to move. But if the balance point is not the inviolacy of property rights, but the needs of community (by which I mean something more specific than the common good), then the scales tilt toward the deeply impoverished old city of New London, desperate for tax revenue to support a poor, isolated and highly dependent population.

I agree with Rick's follow-up:

For what it's worth, I think that my concern for "property rights" and Mark's worries (which I share) about "the destruction of community" are more closely related, or less in opposition, than Mark's post might suggest. It strikes me that the kinds of communities that Mark vividly evokes, and about which he is concerned, and which he thinks (it appears) the Fifth Amendment should be deployed to protect, require for their development, health, and continuation a legal regime that constrains government and protects private property. People don't feel rooted -- they are not, in fact, rooted -- and do not belong, reach out, take chances, identify with, make sacrifices for communities (or so it seems to me) whose survival and existence are subject to little more than the utilitarian calculations of local officials eager to accommodate rent-seeking outsiders.

Individual property rights exercised in a relative--not absolute--way encourage the formation of community. Rick is right. Ownership of home and property leads a homeowner naturally to become a stakeholder in that home. These homes often share space in a neighborhood with other homeowners. In fact, the care of home that each of these stakeholders presumably engage in lead to the development of a community. Each person benefits as a member of this neighborhood because of the collective work done by each individual stakeholder on his own property. Make that property ownership contingent on a local municipalities restraint in exercising eminent domain, and watch the sense of stakeholding necessary for the birth and growth of community wither away.

What's particularly disturbing about this Supreme Court precident is that it continues the blurring of the ontological and practical difference between society and state. More and more, the two are being conceptualized--and in practical, day-to-day life experienced--as one in the same. This can only damage society, as such a union of identity was the goal of Facists such as Mussolini. He proposed the State as the sum total reality upon which people should devote their lives and loyalty. Thus, any blurring of the distinct role and function of society and the government that supposedly serves it furthers that society along the road to Totalitarianism.

No longer will individuals and families, in exercising their humand dignity and participation in civil life through the practice of their right to property, have a claim of priority on the government. Now, the government may make decisions as to the effective use of even private property in order to gurantee the "common good". The trouble begins when inevitable corruption influences such a government to distort just what furthers that common good. Now, private developers with the right lawyers, marketers and money can potentially recruit government to effectively claim whatever property they desire, as long as it provides what contribution to the common good the government believes it will.

In a society already eviscerating subsidiarity at an alarming pace, this unfortunate decision speeds up this deadly process. As ususal, the most vulnerable of society will pay the price of this violation of principle first. Soon, however, the more influential--yet not overwhelmingly powerful--will face this inappropriate government intervention in their lives. Exactly what checks on government remain that would offer individuals, families and small communities the security of their natural rights to property?

(BTW, The Anchoress and Southern Appeal also have great posts on this case.)