‘Little Pink House’ sheds light on the Constitution’s Takings Clause


WASHINGTON

Coming soon to a cinema near you – you can make this happen; read on – is a bite-your-nails true-story thriller featuring heroes, villains and a history-making struggle over ... the Constitution’s Takings Clause. Next Feb. 24, “Little Pink House” will win the Oscar for best picture if Hollywood’s political preening contains even a scintilla of sincerity about speaking truth to power.

In 1997, New London, Conn., was experiencing hard times. Its government decided, as governments always do, that it wanted more revenues. A private entity, the New London Development Corp. (NLDC), wanted to entice the Pfizer pharmaceutical corporation, which was about to introduce a popular blue pill, to locate a research facility on land adjacent to a blue-collar residential neighborhood. The city empowered the NLDC to wield the awesome, potentially life-shattering power of eminent domain if, as happened, it failed to persuade all the homeowners to sell for an upscale private development to “complement” Pfizer’s facility. Some, led by Susette Kelo (played by Catherine Keener, two-time Oscar nominee), refused.

Crony capitalism

Kelo’s tormentor is an oily NLDC operative (played by Emmy-nominee Jeanne Tripplehorn) who is fluent in the pitter-patter of crony capitalism: The NLDC will make New London “vital and hip” using a public-private “collaboration” wherein uprooted homeowners will be “part of our team” because “social justice and economic development go hand in hand” as the NLDC integrates “the infrastructure of large corporations to the brass-tacks needs of our city’s most ... “

Kelo’s plight got the attention of the Institute for Justice (IJ), aka the fourth branch of government, nonprofit libertarian litigators who prod the third branch (the judiciary) to police the excesses of the other two. IJ lost, but won.

Kelo lost 4-3 in Connecticut’s Supreme Court and 5-4 in the U.S. Supreme Court, which accepted New London’s sophistical argument that virtually erased the Constitution’s circumscription of government’s eminent domain power. This used to be limited by the notably explicit Fifth Amendment, which says “nor shall private property be taken for public use, without just compensation” (emphasis added). The Constitution’s Framers intended the adjective “public” to do what the rest of the Bill of Rights does: limit government’s power. Government could take private property only for the purpose of creating things – roads, bridges, tunnels, public buildings – directly owned by government or primarily used by the general public. In 1954, however, to facilitate slum clearance in the District of Columbia, the concept of “public use” was stretched to encompass eradicating “blight,” an expansion exploited nationwide by corporations in cahoots with city governments that found blight in cracked sidewalks or loose awning supports.

‘Public use’

To seize Kelo’s pink house, New London did not assert blight. Instead, it argued that “public use” is synonymous with “public benefit,” and that the public would benefit from Pfizer paying more taxes than would Kelo and her neighbors. During oral arguments, Justice Antonin Scalia distilled New London’s argument: “You can take from A to give to B if B pays more taxes.” In a dissent joined by William Rehnquist, Clarence Thomas and Scalia, Sandra Day O’Connor warned that the decision’s consequences “will not be random:” Factions whose affluence makes them desirable taxpayers and whose political influence makes them politically potent will join governments in seizing the property of low-income citizens who are not as lucrative for local governments.

By getting the U.S. Supreme Court’s attention, and eliciting strong dissents that highlight the horribleness of the majority’s decision, Kelo and IJ ignited national revulsion that has produced new state limitations on eminent domain, limitations that re-establish the Framers’ intentions.

Vacant lot

The movie, representing the vanishingly small category of “Movies for Grown-ups,” has just debuted in New London, where government economic planning ended predictably badly: Pfizer came, exhausted its subsidies, then departed, leaving a vacant lot where the pink house once stood. View the trailer (iam.ij.org/LPHtrailer) and consult watch.LittlePinkHouseMovie.com to learn about showings elsewhere. Organizations or groups of about 70 persons can go to TUGG.com to book a theater and receive help promoting the showing. People who send their email addresses to LittlePinkArmy.com will be contacted and helped through this process. This bypasses Hollywood’s normal distribution procedures, but the movie industry might benefit from it.

Does Hollywood want to reverse the four-year ratings decline (43.7 million viewers in 2014; 26.5 million this year) of the Academy Awards telecast? Imagine the viewership for a contest of David (“Little Pink House”) against a gaggle of Goliaths (big-budget best-picture nominees boosted by major studios’ promotional budgets).

Washington Post Writers Group

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