Posted on 02/27/2005 11:37:01 PM PST by goldstategop
Beginning his oral argument in Kelo v. City of New London, the Connecticut eminent-domain case the Supreme Court took up last week, Scott Bullock of the Institute for Justice puts the stakes bluntly:
“Every home, church, or corner store would produce more jobs and tax revenue if it were a Costco or a shopping mall,” he says. If state and local governments can force a property owner to surrender his land so it can be given to a new owner who will put it to more lucrative use, no home or shop in America will ever be safe again.
That’s just what New London wants to do to Bullock’s clients, the seven remaining homeowners in the city’s working-class section of Fort Trumbull. When Pfizer, the big pharmaceutical firm, announced in 1998 that it would build a $300 million research facility nearby, the city decided to raze Fort Trumbull’s modest homes and shops so they could be replaced with more expensive properties: offices, upscale condos, a luxury hotel. Its master plan called for turning the land over to a private developer, in the expectation that it would "complement the facility that Pfizer was planning to build, create jobs, [and] increase tax and other revenues."
But can the government kick people out of their homes or businesses simply to make way for new development?
Under the Bill of Rights, the power of eminent domain may be used only when land is needed for a public use. “Nor shall private property be taken for public use without just compensation,” the Fifth Amendment commands. A school, a post office, a right of way for a railroad -- those are the kinds of public uses for which property owners have traditionally been made to relinquish their land.
But that isn’t why New London wants to tear down the 112-year-old Victorian that Susette Kelo worked so hard to renovate, or the house at Walbach and East streets where Wilhelmina Dery has lived for all of her 87 years. The city doesn’t want their land for a public facility or a new road. It simply wants the expanded tax base and economic growth that will come with new development. Can that be what the Constitution means by “public use” -- the trickle-down benefits of private use?
Once, Supreme Court justices would have given short shrift to such a claim.
"The despotic power . . . of taking private property when state necessity requires, exists in every government," Justice William Paterson wrote in a 1795 case, Vanhorn's Lessee v. Dorrance, but the state must not invoke that power "except in urgent cases." He could not imagine any situation that would justify "the seizing of landed property belonging to one citizen, and giving it to another citizen. . . . Where is the security, where the inviolability of property, if the legislature . . . can take land from one citizen, who acquired it legally, and vest it in another?"
But there is no echo of Paterson's spirited defense of property rights as the justices consider Fort Trumbull.
When Bullock argues that New London wants to throw people out of their homes for the sake of ordinary economic development, Justice Ruth Bader Ginsburg asks why that's a problem. New London is depressed, she says; what's wrong with trying to "build it up and get more jobs?" If the city could buy property on the open market and turn it over to a developer, wonders Justice David Souter, why can't it use eminent domain to achieve the same end? Justice Stephen Breyer notes that there is bound to be some public benefit from almost any land taking. Isn't that enough to satisfy the Constitution's "public use" requirement?
It is a depressing colloquy for anyone who believes that property rights are fundamental to liberty. But there is worse to come. Justice Sandra Day O'Connor presses Wesley Horton, the lawyer for New London, on whether eminent domain can really be deployed to condemn any property that could be put to better use.
"For example, a Motel 6," O'Connor says. "A city thinks, 'If we had a Ritz-Carlton, we'd get higher taxes.' Is that OK?"
"Yes, that's OK," Horton replies.
Justice Antonin Scalia: "You can take from A and give it to B, if B pays more in taxes?"
Horton: "Yes, if it's a significant amount."
Got that? Anyone's property can be taken by eminent domain if the government believes another owner would use it to earn a higher profit. New London isn't alone in making such an outrageous claim. In planning commissions and redevelopment authorities nationwide, the Fifth Amendment's "public use" requirement has been ignored for years. The question now is whether five Supreme Court justices will agree to kill off this piece of the Bill of Rights for good, or to bring it back to life. The fate of more than just seven Connecticut homeowners is riding on their decision.
(Denny Crane: "There are two places to find the truth. First God and then Fox News.")
Its happening all over the place, here down here in Texas
The state figures it's *their* property. We just rent it from them anyway, right?
In the Klamath Basin/Klamath Falls region of Oregon as well. It's court decreed stealing......the kind of iron-fisted oligarchy collusion that brought about the American Revolution.
I remember the Klamath thing with the water. THAT water is supposed to be owned by the farmers.
They did it to the American Indian; we said nothing.
They are doing it to an emasculated America; we no longer have the backbone to stop them.
well, the people at Klamath had backbone
.....the government nearly shut off all of the water..... farmers couldn't survive. They came close to taking over the dam controls, but backed down. A taxpayer (government) sponsored - privately held animal refuge/environmental protection group has been buying up the property for pennies on the dollar. Their intent? Deny complete human access to the area to return the place to a pristine wildlife refuge.
Say, I have a great place to locate a new Home Depot. It's right on the property of where Justice Ruth Bader Ginsburg currently owns and resides. And as for that new that new Wal-Mart, Souters home is the perfect place for it. Oh, and Breyer's house is just absolutely right for the new Target store I'm planing to build as well. Say, Justice Breyer, you wouldn't mind vacating the place, would ya? I have much more important things to do with it. What? You mind very much? Well, it doesn't matter what you think. The city council and a few Justices on the Supreme Court are backing me up on this.
LOL
it is that way in maryland, where environmentalists have given the government cart blanc with the phrase, "best management practices"...
look for the supremes to render a less than ideal solution for private property rights advocates.
teeman
I doubt you should hang your hat on the phrase "...just compensation...".
I mean, aren't you somewhat cynical regarding just what is it that makes a "market-value", which is estimated by a government-paid appraiser, "just"?
IMHO, the "just price" is that price which is accepted by BOTH the prospective buyer and the prospective seller in a voluntary transaction. You know: a "free-market" transaction.
Therefore, I think the "taking of property by right of eminent domain" should be seen for exactly what it is: an attempt to acquire private property WITHOUT paying "...just compensation...".
The drafters of the Constitution and the bill of rights did not agree with you or they would not have included "just compensation."
I see that you have much more confidence in the "integrity" of government than I do.
But the situation in New London is really that:
(1) A private developer wants to buy some private property, which a by-the-numbers appraiser values at $X.
(2) The developer fears that the property owners, due perhaps to personal histories, emotions and sentiments, may place values higher than $X on the property. And the developer does not want to pay such higher prices to get the property.
(3) So the developer finds a way to induce(*) some politicians to "condemn" the private property, using "eminent domain" as a "justification" and the low-ball "appraised value" of $X as a proxy for "just compensation".
(4) The developer then buys the property at its desired price ($X) -- plus whatever baksheesh(*) the developer has agreed to pay the politicians to induce them to exercise their political power to condemn the private property.
(5) The developer has profited. The politicians have profited. But the original property owners have LOST, due to a clear abuse of the government's "taking" power.
As I read it, such abuses are expressly limited by our Bill of Rights.
I understand that this real-world analysis might not apply to a town governed by "Philosopher-Kings".
Is it better to allow only lawyers and just a handful of self anointed interpreters of the Constitution to be the sole source for granting and defining our rights? Our elected State Government leaders should be responsible for defining public use and just compensation. An effective way for a State Legislature to limit the abuse of eminent domain would be a super majority requirement of local residents. I trust my neighbors and my ability to influence my neighbors in order to protect my rights. I have no ability to influence the Supreme Court. If we can't get most Citizens in most all of the Country to respect rights then we are in trouble.
IMHO, an effective way to limit the abuse of eminent domain is to prevent government entities from acting as "real estate agents" for private interests.
Perhaps a time-limitation to restrict the resale or lease of any property acquired adversely using the right of eminent domain would suffice.
However, if the US Supreme Court decides that government officials make use the full power of the government to "take" private property for any purpose whatsoever -- then we ARE in trouble.
In your world they'd all be vying to hire the world's leading expert on creating politically convenient definitions (I refer of course to Bill Clinton).
No -- words have objective meanings, and taking from A to give to B simply does not fit within the objective meaning of the words "public use" no matter how many politicians say otherwise.
So you prefer to allow a handful of Supreme Court Justices define what rights you enjoy and what rights government can ignore?
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Justice Ruth Bader Ginsburg asks why that's a problem. New London is depressed, she says; what's wrong with trying to "build it up and get more jobs?" If the city could buy property on the open market and turn it over to a developer, wonders Justice David Souter, why can't it use eminent domain to achieve the same end? Justice Stephen Breyer notes that there is bound to be some public benefit from almost any land taking. Isn't that enough to satisfy the Constitution's "public use" requirement?
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The real fight over court apointments shouldn't be about abortion, it should be about property rights. The wrong apointment (i.e. a Justice weak on property rights) could do untold damage.
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