Clarence Thomas as Chief Justice Jude Wanniski June 25, 2005

Memo To: President George W. Bush
Cc: Karl Rove
From: Jude Wanniski
Re: The “Taking Clause” Erased

To be honest, Mr. President, until the Supreme Court on Thursday announced its 5-to-4 decision limiting the property rights of all Americans, I assumed that upon the retirement of Chief Justice Rehnquist you would not name Justice Clarence Thomas to fill that vacancy – and that you would probably be wise to avoid the controversy his nomination would bring.

But after reading Justice Thomas’s dissenting opinion in the New London, Conn. case, I think his wisdom, his judgment and his perspective so clearly fits him to be Chief Justice that the American people would not permit the kind of political firestorm that accompanied his appointment to the Court by your father 15 years ago.

Justice Sandra Day O’Connor wrote for the minority and was properly scathing in her criticism of the opinion that government can use its power of eminent domain to foster economic development. But writing separately, Justice Thomas understood that the Court’s action in itself is unconstitutional, a “dangerous” act because the American people now have no other recourse to regain control of their property rights except by another amendment to the Constitution.

We thought we had this protection in the Bill of Rights, specifically the “taking clause” of the Fifth Amendment, which clearly states that private property shall not be taken “for public use, without just compensation.” At issue in the New London case was the city’s expropriation of 15 perfectly good homes to a private developer who planned to make different use of the property -- with the city hoping to get higher tax revenues in the process. The owners refused compensation, wishing to remain in their homes.

In the opening of his dissent, Justice Thomas says:

Long ago, William Blackstone wrote that the law of the land . . . postpone[s] even public necessity to the sacred and inviolable rights of private property. The Framers embodied that principle in the Constitution, allowing the government to take property not for public necessity, but instead for public use. Defying this understanding, the Court replaces the Public Use Clause with a [P]ublic [P]urpose Clause, (or perhaps the Diverse and Always Evolving Needs of Society Clause, a restriction that is satisfied, the Court instructs, so long as the purpose is legitimate and the means not irrational. This deferential shift in phraseology enables the Court to hold, against all common sense, that a costly urban-renewal project whose stated purpose is a vague promise of new jobs and increased tax revenue, but which is also suspiciously agreeable to the Pfizer Corporation, is for a public use. I cannot agree. If such economic development takings are for a public use, any taking is, and the Court has erased the Public Use Clause from our Constitution, as Justice O’Connor powerfully argues in dissent.

In all my years either reporting on the Supreme Court, as a newspaperman, or following its decisions as a political analyst, I’ve never encountered a decision as brazenly unconstitutional as to be frightening in its implications. My first thought was “this is communism.” Except that the government must still provide monetary compensation that another court would ultimately decide, there is nothing different from a communist expropriation of private property with the good intentions of making things better for the “community” at the expense of the landowners. The New York Times, which predictably hailed the decision under a headline, “The Limits of Property Rights,” sounded more like Pravda in its conclusion: “New London’s development plan may hurt a few small property owners, who will, in any case, be fully compensated. But many more residents are likely to benefit if the city can shore up its tax base and attract badly needed jobs.”

In his distinguished years on the Court, Justice Thomas has been regularly derided by black politicians as a “conservative” who has been insensitive to the needs of blacks that could be satisfied by judicial rulings. It is they who have been insensitive as to how he has been protecting their fundamental rights by protecting the Constitution. Here is how he concluded his dissent:

If ever there were justification for intrusive judicial review of constitutional provisions that protect discrete and insular minorities, surely that principle would apply with great force to the powerless groups and individuals the Public Use Clause protects. The deferential standard this Court has adopted for the Public Use Clause is therefore deeply perverse. It encourages those citizens with disproportionate influence and power in the political process, including large corporations and development firms to victimize the weak.

Those incentives have made the legacy of this Courts public purpose test an unhappy one. In the 1950s, no doubt emboldened in part by the expansive understanding of public use this Court adopted in Berman, cities rushed to draw plans for downtown development. Of all the families displaced by urban renewal from 1949 through 1963, 63 percent of those whose race was known were nonwhite, and of these families, 56 percent of nonwhites and 38 percent of whites had incomes low enough to qualify for public housing, which, however, was seldom available to them. Public works projects in the 1950s and 1960s destroyed predominantly minority communities in St. Paul, Minnesota, and Baltimore, Maryland. In 1981, urban planners in Detroit, Michigan, uprooted the largely lower-income and elderly Poletown neighborhood for the benefit of the General Motors Corporation. Urban renewal projects have long been associated with the displacement of blacks; [i]n cities across the country, urban renewal came to be known as Negro removal. Over 97 percent of the individuals forcibly removed from their homes by the slum-clearance project upheld by this Court in Berman were black. Regrettably, the predictable consequence of the Court’s decision will be to exacerbate these effects.

Mr. President, if you had already decided against Justice Thomas as I had, please reconsider. There is no one else like him in America. He was born to be Chief Justice at this time of the nation’s life.