Posted on 07/23/2005 9:47:19 AM PDT by Antonio Ciaccia
On June 23, 2005, the U.S. Supreme Court reached a verdict that contradicted everything the Court was intended to protect. The case, Kelo vs. City of New London, marked a defining victory for enemies of the right to private property.
The controversy started when several families were being driven from their homes to make way for what the government deemed to be a much more productive use for the land. More notably, the government declared that bulldozing the homes in the name of other enterprises would better serve the "common good" and even better, provide more tax revenue.
The Supreme Court ruled in a 5-4 decision (Rehnquist, Thomas, O’Connor, and Scalia, dissenting) that the local government was justified in seizing the homes under the 'Takings Clause' of the Fifth Amendment, which states, "Nor shall private property be taken for public use without just compensation."
While many say that it is quite obvious that the intent of this clause was to allow government the ability to construct roads and government buildings, the Court's majority felt differently.
The idea of "eminent domain" has been around for ages. Originally, the seizing of private property in the name of the state was done by royal regimes. Kings legally took land just by invoking their royal titles. Such tyranny was one of the motivations that drove the original colonists to America in the first place. This new interpretation of the 'Takings Clause' returns present day Americans to the condition our fore-fathers struggled to escape.
The decision shocked many Americans, but further analysis of the ruling and of previous precedent show that perhaps the ruling is not as fringe many thought.
The Court took the phrase "public use" and defined its meaning as "public interest."
This notion became quite popular during President Franklin Roosevelt’s tenure in office, and it became acknowledged by the Supreme Court in the 1954 case of Berman v. Parker. In the case, the Federal Urban Renewal Program aimed to turn what were deemed as “blighted” slums into more attractive buildings. The court ruled that it would be much more "useful" to the public if the buildings were seized. This marked the fusion of the terms "public use" and "public good."
The Court, in a unanimous decision ruled that, "We do not sit to determine whether a particular housing project is or is not desirable. The concept of the public welfare is broad and inclusive… The values it represents are spiritual (!) as well as physical, aesthetic as well as monetary. It is within the power of the legislature to determine that the community should be beautiful as well as healthy, spacious as well as clean, well-balanced as well as carefully patrolled. In the present case, the Congress and its authorized agencies have made determinations that take into account a wide variety of values. It is not for us to reappraise them. If those who govern the District of Columbia decide that the Nation's Capital should be beautiful as well as sanitary, there is nothing in the Fifth Amendment that stands in the way."
It can be easily recognized that such a ruling leaves the gates wide open for eminent domain abuses. The Fifth Amendment, once meant as a limit on the powers of government, now grants it broad overarching power. Who decides what is beautiful and what isn't? How spacious is spacious enough? Where does the government’s power end, and more importantly, where does my right to private property begin?
These eminent domain cases are going on all around us, even here in Ohio.
In 2003, in Lakewood, OH, the Saleet family's home was declared "blighted" by Mayor Madeline Cain, and was scheduled to be bulldozed to make way for up-scale condos and a shopping center. Why were they labeled as "blighted"? The Saleet's didn’t have an attached two-car garage or two full bathrooms. According to the Institute for Justice, the legal firm who took up the Saleet's case, "The justification the City had offered for the takings was that a new development would create more jobs and taxes, but keep this in mind: anyone's home or small business would generate more taxes as a shopping mall. If that can justify such takings, then literally no home or business would be safe from this kind of abuse at the hands of government."
In 1999, 83 well-maintained homes were condemned by the city of Toledo in order to make way for the expansion of a Chrysler plant. When Chrysler threatened to leave the city, the city and state governments gave the auto manufacturer $232 million of the public's money to keep them happy. Homeowners had their homes seized by the government and handed to Chrysler.
Today, in Norwood, OH, developer Jeffery Anderson asked the Cincinnati suburb to condemn at least 5 homes to make way for private offices. Anderson requested and financed a study that the local city council used to declare 99 buildings "blighted."
These are just a few case studies; there are more where they come from. In a recent report, the Institute for Justice declared that, "Ohio is one of the worst states for eminent domain abuse, with at least 400 properties condemned or threatened with condemnation for private profit in just five years."
The concept is simple. If more revenue can be generated for the government, it is in the "public good." As long as the government can keep acting in the "public good," the homes of poorer families will be seized to make way for wealthier individuals. It’s the government’s way of saying, "make us money, or get out."
A further concern raised in these situations is the idea of "just compensation." Surely, one would assume that the government is offering great sums of money in order to uproot families from their homes. Sadly, this is not the case.
Typically, the government defines "just compensation," as what ever is fair market value. But a problem arises in computing what is fair market value. Standard procedure for selling a home begins with having your home appraised by a private firm or two. They survey the area, the location, the traffic, the durability of the home, crime rates, etc. All of these things factor in to an objective appraisal of the home’s value. Yet, with eminent domain, this is not standard procedure. First, the government announces that the area you live in is "blighted." Conventional wisdom should tell you that the market value of your home at that point has decreased significantly. There aren’t too many folks shopping for "blighted" homes. So once this happens, the government (the ones who want to take your home), come in and appraise it to determine their version of fair market value. An obvious question arises, how do you determine the market value of something without going to the free market? You can’t measure the supply and demand, because at this point, your home is the supply and the only demand is coming from the government.
The problems we face in the cases involving eminent domain are serious ones to say the least. The case of Kelo v. City of New London sets a new precedent for eminent domain absurdity. The government took the homes of private citizens and handed them over to other private citizens -- a direct interference the most basic of tenants of our free market. The whole concept of trade is that it involves the voluntary exchange of value for value. Eminent domain, on the other hand, is coercion. Coercion in the name of the arbitrary and vague idea of "public good." It is cases like these that should have all Americans second guessing all of the other "public goods" they’ve supported in the past. Just how good is this "public good," and how does it affect me, the individual citizen? Close inspection will reveal the "public good" for what it really is - a wolf in sheep’s clothing.
This statement assumes that fair market value is determined AFTER the threat of condemnation arises, and has reduced value. That is false. And the litigation of fair market value is a contest between appraisers for each side. What they look to is comparable sales. In this case, they would look at comparable sales before the threat of condemnation, and then probably use a trend line to the present based on the trend line in other neighborhoods.
In short, the statement is false.
If you want to see how Gov. works. view my #11
Property Rights, Eminent Domain, and the Making of a Citizen Politician - (terrific story!)
http://www.freerepublic.com/focus/f-news/1432842/posts?page=11#11
"Just Compensation" as used in the 5th amendment would appear to be broader than just "fair market value". If fair market value was all that was contemplated, the authors would likely have just written, “without paying market value”. Just compensation would appear to cover recompense for what is lost which could get into intangibles such as impact on the individual giving up the property. Does historical or sentimental attachment, difficulty in adjusting to changed circumstances, etc have any value? I think in the Kelo case, one of the individuals was a 70-year-old person who had lived in the home for her entire life. Would her loss be greater than an investor who had held title for a short time? Since the Supreme Court accepts that the long held definition of public use has changed to mean public benefit, possibly the definition of “Just Compensation” is now broader than just “Fair Market Value”. It appears a new review on the issue of compensation would be in order.
Disclaimer: Opinions posted on Free Republic are those of the individual posters and do not necessarily represent the opinion of Free Republic or its management. All materials posted herein are protected by copyright law and the exemption for fair use of copyrighted works.