Kelo v. New London, Eminent Domain: Supreme Court to rule whether government can give your house to a private developer

25 February 2005

This post is a little after the fact. I apologize; I was otherwise engaged the day this case was heard.

For any of you who are regular readers of my web log, you already know about the facts surrounding Kelo v. New London. I will try not to repeat myself too much. The facts are simple: The city of New London, Connecticut has decided that local homeowners are not providing enough tax revenue for the government (or enough jobs for the economy, or something). Many municipalities accomplish their goals by declaring such areas 'blighted' (using shockingly flexible guidelines to determine what 'blight' is). New London doesn't actually have to take this step, all they have to do is invoke "a state law designed to revitalize older commercial and industrial areas," and hand the properties over to a private developer who will then build a new commercial park. This action will generate lots of jobs and, coincidently, it will generate a lot more tax revenue than the rightful owners ever could (which I'm sure wasn't a factor in New London's decision). Because of the increased jobs and tax revenue, New London and other local government can claim that such takings constitute a 'public benefit' for which eminent domain may be used under the Constitution. The trouble with this standard is that it is effectively no standard. If the Supreme Court rules in favor of New London, and against Kelo et al, then any government will be able to take anyone's property for virtually any reason so long as the taking will result in more tax revenue for the government (a public benefit). More simply put, if the Supreme Court rules against the property owners in this case, if Wal Mart wants to knock down your house to make way for a Supercenter, and if your local elected leaders want the Wal Mart there, your house is gone. You won't have any recourse because of the Supreme Court's ruling.

Of course, as one of the articles below points out, a ruling in favor of the property owners won't help us very much necessarily. After all, since New London makes no claim of blight and since the development is purely for economic gain, the court could get away with finding for the property owners without having to address any specifics about when it is appropriate for governments to use eminent domain for traditional purposes such as blight. My instinct is to argue that the terms 'eminent domain' and 'private ownership' ought to be mutually exclusive. But I do recognize the real public benefit of urban renewal projects involving the taking of truly blighted areas and transferring them to private developers (for a fair price, of course). However, unlike with other types of public projects, the potential for the abuse of this sort of application of eminent domain is so great that there ought to be rigorous and very strict standards for determining what blight is, and the presumption should always be on the government to show blight before a taking is allowed. I might also add, that, given the distastefulness of forcing one private owner to sell their property to another private owner, the owners of blighted properties ought to be paid 150% of the value for the inconvenience.

Disturbingly, the court is divided on this issue. The prevailing view is that the takings clause of the Fifth Article of Amendment to the Constitution of these United States grants the government the power of eminent domain. I am puzzled by this interpretation since the first ten Articles of Amendment, known as the Bill of Rights, were concerned with enumerating some of the specific rights that we the people have against the government. The takings clause of the Fifth Amendment clearly says 'public use', not 'public benefit'. The language seems narrower than the language eminent domain proponents are in the habit of using. I really hope the court actually upholds the rights of the people in this case. To those who try to vilify the property owners as holding up development that will benefit a majority, I say that nature of thievery is not changed just because there is a greater number of thieves. What am I supposed to do? Say it's perfectly okay to steal from someone just because a majority of people say it's okay? I don't think so. And if you're one of those people who thinks it isn't stealing if they're paid, try to imagine how you'd feel if someone came up and snatched your laptop, but left you with $700. If that happened, would you feel like you'd been stolen from? There's probably some stuff on that laptop that money can't replace. Oh, and there's that little issue of consent. You didn't desire to sell your laptop, it was merely taken. If there is no consent, a taking is theft.

The case is Kelo v. New London, No. 04-108. A decision is expected by July.
---------Is Your Stuff Yours? The Answer Isn't So Simple (Actually, the answer is simple. If I worked for it, made it, bought it, or was gifted it, then it's mine.)
---------High court to weigh eminent domain
---------Supreme Court examines limits of city's eminent domain powers -- Residents in working-class neighborhood square off against city
---------Limit urged on eminent domain -- Property owners ask high court to block forced sale
---------Justices hear eminent domain case -- Taking houses for offices at issue
---------Eminent domain case may have imminent implications -- Supreme Court considers seizure of private land
---------High court should limit eminent domain -- New London residents ask to block forced sale

posted by The Sovereign Editor | 10:08 AM

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