News from the Tennessee Valley Opinion
FRIDAY, JULY 1, 2005


Condemnation case splits conservative coalition

The U.S. Supreme Court's decision authorizing a city to take property from one private party and give it to another is unlikely to have much real-life significance, but it showcases a fascinating clash of conservative values.

The Kelo ruling, released Monday, illustrates the divide between two breeds of conservatives.

The historical rallying cry of the conservatives behind Door No. 1 is that appointed federal courts too often intrude on state and local governments, usurping the legislative function so carefully laid out in the U.S. Constitution.

Behind Door No. 2 is the conservative school that resents governmental intrusions on individual rights, whether the offending government is local, state or federal.

The majority opinion relies upon the idea that federal courts must defer to the legislature. "Empirical debates over the wisdom of takings ... are not to be carried out in the federal courts," the humble majority wrote.

The dissent focused almost entirely on the Fifth Amendment, which prohibits condemnations that are not "for public use."

"Nothing is to prevent the State from replacing any Motel 6 with a Ritz-Carlton," wrote Justice Sandra Day O'Connor, "any home with a shopping mall, or any farm with a factory."

If they are to be consistent, Door No. 1 conservatives — the court bashers — should applaud the decision. Finally an appointed court has deferred to the branch of government that answers most directly to the people.

And if ideologically consistent, the Door No. 2 conservatives — the individual-liberty group —must laud the historically liberal judges who protested another inroad on individual liberty.

Aside from the dissection it performed of the conservative movement, the case is unlikely to have much significance, especially in Alabama. The state Supreme Court can nullify the decision by interpreting Section 23 of Alabama's own constitution. That provision expressly states that "private property (shall not) be taken for private use, or for the use of corporations."

The state Legislature can accomplish the same thing with a majority vote. Before the ink on the Kelo decision was dry, Gov. Bob Riley had said he wants the Legislature to adopt stricter eminent domain rules during its planned special session in July.

Indeed, the only consequence of the decision may be that it foretells the demise of a powerful but increasingly precarious conservative coalition.

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