Supreme Court Series I: Eminent Domain

Supreme Court Series I: Eminent Domain

by Mariah Wojdacz, December 2009

Property owners of America, take heed - in a landmark split decision issued June 23, the Supreme Court ruled that the government has the power to transfer ownership of private property from one citizen to another, starting with the homes of Susette Kelo, Bill Von Winkle, and other citizens of New London, Connecticut

In a blistering dissent, Justice Sandra Day O'Conner accused the court of abandoning the long-held belief in a basic limitation on governmental power: "Under the banner of economic development, all private property is now vulnerable to being taken and transferred to another private citizen, so long as it is to be the process."

It all started when Pfizer Corporation built a research center on the banks of the ThamesRiver, adjacent to an established community of middle-class homeowners. Once, New London thrived as an industrial center and then later as a manufacturing hub, but as jobs became scarce residents began to move away - taking tax revenue with them. The new research center brought with it welcome jobs and a good reason for many to stay.

Both liberals and conservatives agree this ruling constitutes a death-blow to individual rights.

Enter the New London Development Corporation, which saw the neighborhoods along the riverfront and envisioned a hotel, health club, offices, and shopping centers in place of the restored colonial houses. The NLDC petitioned the local government to force long-time homeowners off their land, arguing that their proposed commercial development would generate much more tax revenue for the city, and thus benefit the community as a whole.

The city council agreed, and declared the properties condemned, a legal term which means the government has taken away your land.

Not surprisingly, the citizens fought back.

They argued that the so-called "takings clause" - the clause in the Fifth Amendment that reads, "Nor shall private property be taken for public use, without just compensation" - does not grant the government jurisdiction in this case. Traditionally, the term "public use" has been interpreted to mean for use by the general public, and would apply to public buildings or areas such as post offices or parks.

In a 5-4 decision, the Supreme Court ruled in favor of the city. In the majority opinion, Justice John Paul Stevens wrote that "promoting economic development is a traditional and long accepted function of the government." The ruling interprets "public use" to mean, in essence, "public benefit." Analysts warn that from this point forward, any local, state, or federal government can legally transfer ownership of your property to someone else, so long as the recipient plans to use it in such a way that the government believes will benefit the community as a whole.

In recent years, more than 10,000 private properties across the country have been threatened or condemned according to the Institute for Justice. Many Americans fear they no longer have a fundamental constitutional right to own property, and Justice O'Connor agrees with them in her dissent: "Nothing is to prevent the state from replacing any Motel 6 with a Ritz-Carlton, any home with a shopping mall, or any farm with a factory...Are economic development takings constitutional? I would hold that they are not."

It is true, however, that government agencies have been condemning blighted properties for years, in cases that have been upheld under the takings clause. Dilapidated properties have been handed from citizens to governmental agencies, non-profit groups, and developers in order to restore them for the low-income housing sector. Land taken for public works projects, such as the railroads, often changes ownership not from citizen to government, but from citizen to private corporation. According to the majority opinion, "The court long ago rejected any literal requirement that condemned property be put to use for the general public."

But roads, bridges, and parks are facilities that every citizen can use. Hotels, health clubs, and office complexes are privately owned, operated, and for use only by those citizens who can afford to pay the prices that they charge. Moreover, the condemned properties in New London certainly were not dilapidated - they were well-maintained and greatly loved by owners who worked hard for them. When property is condemned in the interest of economic development, historically, said property is in need of extensive restoration and repair.

The ruling has been called a victory for big business, but to view it as such is to misunderstand the consequence of the decision. American businesses from mom-and-pop corner stores to Fortune 500 corporations are owned by private citizens, just like the homes in Connecticut. Environmental activists and anti-corporate lobbies fight daily against businesses big and small, and now there is nothing to stop them from taking property belonging to Wal-Mart or MacDonald's, so long as they can get the government to take their side.

The homeowners involved in the lawsuit have pledged to continue their fight, although in light of the ruling it is unclear how they might do so. "I won't be going anywhere," Von Winkle said to the Associated Press. "Not my house. This is definitely not the last word."

He does seem to have gained support from lawmakers. "It is appropriate for Congress to take action, consistent with its limited powers under the Constitution, to restore the vital protections of the Fifth Amendment and protect homes, small businesses, and other private property rights," said Republican Senator John Cornyn of Texas. Several state governors, including Governor Sonny Purdue of Georgia, have called on their state legislatures to draft laws protecting the private property rights of their citizens. But how long will such state and federal laws remain unchallenged?

Conservative analysts have warned without exaggeration that this ruling marks the end of our Republic, and liberals are flabbergasted that their four-member bloc of Justices in the majority did not, as expected, stand up for the little guy. Both liberals and conservatives agree this ruling constitutes a death-blow to individual rights.

At the founding of our nation, Thomas Jefferson wrote that limiting the scope and power of the government was paramount: "A government big enough to give you everything you want is strong enough to take away everything you have."

A few weeks ago, many Americans who read this quote would probably have laughed. Now, it doesn't seem so funny anymore. This ruling is a victory for one entity and one entity only: our increasingly powerful, increasingly unchecked, federal government.