Your home or business can be taken by force by local officials for virtually any reason, thanks to a long-awaited but misguided decision by a split Supreme Court last week.
The 5-4 vote in Kelo v. the city of New London (Conn.) was not the type of decision that garnered widespread public attention, given that it dealt with a seemingly arcane piece of law. The question raised by the court was whether governments can use eminent domain to take land by force in order to promote economic development.
But the case is not arcane, and the ruling will literally change what it means to own property in this country. In Kelo, the justices obliterated the commonly held view of the Constitution’s Fifth Amendment. Many Americans who don’t even know what eminent domain means will certainly feel its sting, as governments have been given a carte blanche to take property, thus transferring even more land-use decisions from property owners to the government.
The Fifth Amendment states that individuals cannot “be deprived of life, liberty or property, without due process of law; nor shall private property be taken for public use without just compensation.”
The key issue in the Kelo case was the question of public use. Traditionally, governments have been able to use eminent domain to build genuinely public projects such as roads, bridges, schools, prisons and courthouses. That was what the founders had in mind when they drafted the amendment.
In 1954, however, the Supreme Court decided in Berman v. Parker that eminent domain could also be used for blight removal. The case revolved around efforts by the District of Columbia to use eminent domain to clear away a slum area. Since then, localities have become aggressively creative in their definition of blight.
They also have been known to stretch the definition of public use, arguing that anything that provides a public benefit — i.e., higher tax dollars — is enough reason to use this police power. In 1981 the Michigan Supreme Court agreed in the Poletown case that the city of Detroit could destroy a neighborhood to make way for a General Motors plant because it would provide economic benefits for the region.
That decision was overturned by the Michigan Supreme Court last summer, in a case that relied heavily on the obvious words of the Constitution. The Michigan justices observed that property rights would no longer exist in America if cities could simply take property if they found a use that paid higher taxes or other benefits. Obviously, General Motors or a big-box store will always pay more taxes than a small business or neighborhood homeowners.
Many observers were optimistic that the tide was turning when the U.S. Supreme Court agreed to review the Kelo case.
In Kelo, the New London Development Corp., a public-private partnership, was condemning an entire neighborhood of mostly well-kept Victorian homes near the waterfront. Many of them had been in the same families for generations. The city wanted to build condos, a hotel and commercial areas in that prime waterfront location. Some owners sold out, but a few held firm, and took the case to the high court.
“The city has carefully formulated an economic development that it believes will provide appreciable benefits to the community,” wrote John Paul Stevens, writing for a majority that included Justices Anthony Kennedy, David Souter, Ruth Bader Ginsburg and Stephen Breyer.
So there you have it: If city officials declare an economic benefit in taking your property and giving it to an auto mall, then there isn’t much you can do about it, other than to fight in court for just compensation. The majority didn’t think it was the role of the courts to review such matters, but it is supremely the court’s role to review whether legislatures are violating the clear words of the Constitution. The courts, and this court in particular, have shown no reluctance to review the constitutionality of other matters.
The most powerful rebuke to the majority came from Justice Sandra Day O’Connor, writing a dissent: “(T)he government now has license to transfer property from those with fewer resources to those with more. The founders cannot have intended this perverse result.” Also dissenting were Justices Antonin Scalia, William Rehnquist and Clarence Thomas.
As one reader wrote in an e-mail, “The founders will be turning in their graves.”
Sad but true.