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For the last half-century, judges have been overriding the will of the people and their democratically elected representatives. This over-reaching has been particularly obvious in the area of property rights. The crowning intrusion on constitutional property rights was the Poletown decision rendered by the Michigan Supreme Court in 1981. It upheld the seizure of over a thousand private homes and dozens of churches and businesses outside of Detroit in order to hand them over to General Motors to replace them with a large factory. All state constitutions authorize the taking of private property for a public use such as building a road or post office. Government must compensate the private owner for any property taken. But there is no justification for taking property from Peter to give to Paul, and the confiscation of numerous homes by government to turn them over to General Motors has been harshly criticized ever since. The Michigan Supreme Court faced the same issue again in July 2004 in County of Wayne v. Hathcock. It had a clear choice: affirm Poletown, or reverse the Poletown mistake. The County of Wayne wanted to seize 46 parcels of property in order to hand them over to a developer to construct a 1,300-acre business and technology park. This so-called Pinnacle Project was born of a complex regulatory system that provided federal monies to local government in order to acquire properties around an airport and put them to productive use. The county’s reason for seizing the private property was the promise of “creation of jobs for its citizens.” But the Michigan constitution limits government power to take property to a “public use.” Is creating private jobs a “public use”? In a unanimous decision, the Court stated, “We must overrule Poletown to vindicate our constitution, protect the people’s property rights, and preserve the legitimacy of the judicial branch as the expositor — not creator — of fundamental law.” The court further said: “Our decision today does not announce a new rule of law, but rather returns our law to that which existed before Poletown and which has been mandated by our constitution since it took effect in 1963.” The Hathcock decision is a significant victory for property rights and for the proposition that a constitution should be interpreted according to its original intent. Unfortunately, in dictum the court appeared to say that the court should look to “those sophisticated in the law at the time of the constitution’s ratification” (rather than to the plain meaning of the text), and future courts may manipulate that language to justify taking private property if it is claimed to be “blighted.” Nevertheless, private property owners cheered the Hathcock decision as far away as Nevada, where a newspaper urged its courts to hold likewise. Some judges may be finally getting the message that Americans like their constitutions the way they are written, not as reinterpreted by activist judges. |
