Sandra Day O'Connor's announcement about her retirement has mobilized people all along the political spectrum. Conservatives worry that President Bush won't appoint someone "conservative enough," and liberals fret that he'll name someone "too conservative." There has been much talk of the "litmus test" of the next justice's position on abortion or religion. I want the president to use a different litmus test: appoint someone who will oppose the right of local governments from taking our houses, just as O'Connor did.
Traditionally, the principle of Eminent Domain has been used to allow the government to take private property for "public use," such as highways, schools, courthouses, etc. That's been a dubious practice, but at least one could sometimes understand the justification in terms of making improvements to benefit more and more people. But forcing people to sell their house just so a new condo, a Best Buy or a McDonald's could be built in its place just doesn't seem right. As Justice O'Connor put it, "Any property may now be taken for the benefit of another private party." She went on to say, "Nothing is to prevent the State from replacing any Motel 6 with a Ritz-Carlton, any home with a shopping mall, or any farm with a factory."
I have to admit that I would probably love any Supreme Court opinion that used "Motel 6" as an example. I look forward to future law students referring to famous cases such as "Brown v. Board of Education," "Roe v. Wade," and, of course, "Motel 6 v. Ritz-Carlton." But it's also a good example because it shows how wrong this decision was.
I've also given considerable thought to the idea of their taking away my house and building a shopping mall in its place. You dream of owning your own home, you save, you sacrifice, and it's finally yours, and then they take it from you and turn it into a place where kids hang out while they're cutting school? I don't want our bedroom turned into a stand where people buy cinnamon pretzels. I don't want our family room transformed into a Victoria's Secret.
Had I been one of the justices ruling on the case (and, Mr. President, I am available, by the way), I would have added another thought in my dissenting opinion. If this is to be the law of the land — if they can take our houses and put shopping malls in their place — they should at least guarantee the former owner of the property a permanent parking space. And it should be in the shade, near the entrance.
So, I'm all for lengthy hearings and even filibusters if it will get us another justice who will oppose local governments from taking over our homes. It seems un-American. The government should not be allowed to deprive us of our sacred and inalienable right of the painful act of writing that mortgage check each month.
Lloyd Garver has written for many television shows, ranging from "Sesame Street" to "Family Ties" to "Frasier." He has also read many books, some of them in hardcover.
By Lloyd Garver