Supreme Court Decisions Raise Questions Editorial

In March of this year we hailed Supreme Court Justice Antonin Scalia for his dissenting opinion in a death penalty case concerning whether a perpetrator who was 17 at the time of the crime should face execution. Now we hail him again, this time for dissenting in a decision as to whether framed copies of the Ten Commandments should hang in a Kentucky courthouse. The majority opinion, held by five of the nine Justices and issued June 23, declared that the framed copies violate the principle of separation of church and state. Scalia, leading the four members of the Court who dissented, said that the decision was inconsistent with the Founding Fathers' own views. Those views are the reason “In God We Trust” adorns our currency and Congress opens with a prayer—a nonsectarian prayer, but a prayer nonetheless.

The Justices, also in a split decision, but with Scalia in the majority, allowed a 6-foot-tall granite marker, also bearing the Ten Commandments, to stand on the grounds of the Texas state capital in Austin. In the Texas case, the marker was held to be of historical significance and therefore exempt from the First Amendment to the Constitution, which prohibits the establishment of a state religion.

All religions, whatever they may be called, have rules governing the behavior of their followers. The rules attendant upon Judeo-Christian theology were known and practiced by the Founding Fathers, who made them the underlying principles of our system of representative democracy. Given that fact and especially considering how many times in the past few months assaults, shootings and murders have taken place in courthouses around the country, a framed copy of the rules governing two of the world’s major religions and by extension the justice system of the United States, might not be out of place in a courthouse. If the issue comes up again, we hope the justices will take that into consideration.

Scalia and three other, different, Justices dissented from another decision, one which has roused far greater concern. On June 23, five Supreme Court Justices ruled that the Constitution does not prevent government agencies from taking private property by eminent domain and turning it over for another private use. The Fifth Amendment holds that government may take private property for “public use,” but the ruling leaves defining the term “public use” up to local governments for the most part.

Justice Sandra Day O'Connor, in a dissent in which Scalia joined, wrote, “Nothing is to prevent the state from replacing a Motel 6 with a Ritz-Carlton, any home with a shopping mall, or any farm with a factory.” Those citizens with disproportionate influence and power in the political process are likely to benefit from the ruling, she added.

We agree, and we find the implications of this decision frightening.

The property owners in the case, Kelo v. City of New London , argued that cities can take their land only for projects with a clear public use, such as roads or schools, or to revitalize blighted areas. The Court majority opinion, however, gives municipalities wide power to bulldoze residences for such projects as shopping malls and hotel complexes to generate tax revenue.

The Supreme Court ruling would allow a city to seize private property under eminent domain and then transfer that property to another private owner. Those private owners include retail giants and international corporations. The New London case, in fact, would take private homes and small businesses for a Pfizer Pharmaceuticals facility, a state park, office and retail space and parking for visitors to a nearby marina. This is not a case of the public good, it’s a case of private gain that only coincidentally may add to the tax base.

The petitioners in Kelo v. City of New London and other cases have announced their intention to take their fight back to state courts. We hope they’ll see decisions more in their favor there. The American ideal has always been a home of one’s own. Using eminent domain to seize property for the public good is one thing; using the principle to assist private developers is another. Private gain, public tax revenue and the rights of the individual should not cancel each other out.