Kelo v. New London: Eminent domain abuses before Supreme Court; New guidelines suggested

Column dated 26 January 2005

A case is coming before the Supreme Court at the end of February all Americans should have their eye on. For those of you who are unaware of the epidemic of eminent domain abuse in this country, let me explain. The Constitution permits eminent domain. Article of Amendment V of the Bill of Rights (the purpose of which was to protect the rights of the people against government tyranny) states that private property shall not be taken for public use, without just compensation." More and more, local governments have gotten the idea into their tyrannical heads that 'public use' can include transferring the property to another private (non-public) party. The excuse they give when they take someone's home or small business is that the current owner isn't paying as much taxes as a new commercial real estate development would generate. Plus, if a shopping center is put in, there will be more jobs. Despite not being publicly owned, such a development is (in the minds of these little tin dictators) a 'public use'. I disagree in the strongest terms. A public road is a public use. Seizing property from one private person and giving it to another private person is not a public use. Yet, this sort of taking has been going on all over the country for years.

Finally, we are getting a Supreme Court ruling on the subject. The town of New London, Connecticut has decided that it ought to be able to kick some people out of their homes to make way for a new (privately owned) commercial park. This new use for the properties will generate much more tax revenue for the city than they ever got from the homeowners. In addition, the development will generate more jobs and thus help the city's economy. The tyrants of New London think that this counts as a public use. Since the public benefits, they think they can take anyone's property they choose (I'm sure FDR had the same position when he ordered the incarceration all Japanese Americans [and the taking of their property] during WWII). Well, on 22 February, the case of Kelo v. New London will be heard before the Supreme Court; and the court will basically decide whether or not the Constitution protects your property from being seized by those who are richer and more politically powerful than you. And in showing what the President really thinks about the 'ownership society' he talked about in the campaign, the Bush Administration is considering filing a brief on behalf of the city of New London, and against the property owners in this case.

If we are going to continue to allow our servant governments to have the power of eminent domain, we ought to give them some strict guidelines, since they seem to have trouble understanding anything else. Steven Greenhut, author of Abuse of Power: How the Government Misuses Eminent Domain, outlines some "sensible recommendations about what can be done to curb government's land-grabbing enthusiasms. They include: requiring that any condemning agency undertake a rigorous cost-benefit analysis before using eminent domain; providing pre-taking appraisals to property owners; ensuring judicial review of whether the taking is truly for a "public use"; making jury trials available in contested cases; and requiring full compensation for a defendant's legal fees."

Those are good, but I think we can solve the problem with some much simpler guidelines: 1.) 'Private ownership' and 'public use' shall be mutually exclusive terms in all eminent domain matters. 2.) Eminent domain powers shall not be exercised except for a public use. 3.) If the government can accomplish its stated purpose without using eminent domain, that government shall not use eminent domain.

posted by The Sovereign Editor | 4:57 PM

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