Seizing Private Property for Private Use-- How Can This Be?
July 3, 2005
The United Sates Supreme Court recently delivered a landmark decision in Kelso v. City of New London which has implications for every private owner of property as well as every citizen in the US. The 5-4 ruling represents a defeat for some Connecticut residents whose homes are slated for destruction to make room for an office complex. As a result of this decision, cites and other municipalities, urban or rural anywhere in the US, have wide power to bulldoze private residences for projects such as privately owned shopping malls, hotel complexes, office buildings or whatever. In short, government authority has been enhanced and there has been a diminution of individual freedom. The question is then posed: Where are the rights which are guaranteed by the Fifth Amendment to the US Constitution?
The Fifth Amendment says, among other things, "nor shall private property be taken for public use, without just compensation" (our underlined emphasis). Note: it is stated for "public use" it does not state for "private use." Justice Sandra Day O'Connor wrote in her dissent: "Under the banner of economic development, all private property is now vulnerable to being taken and transferred to another private owner." Justice O'Connor went on to say "it is likely the beneficiaries of the decision will be people with disproportionate influence and power in the political process, including large corporation and development firms." With this ruling, the poor and middle class will be most vulnerable to eminent domain abuse by government and large private interests.
All state constitutions echo the Constitution's Framers by stipulating that takings must be for "public use." Again, the Framers specifically weighted their words carefully by stipulating that takings must be for "public use." In other words, government may take private property, for compensation, only to create things such as--roads, bridges, parks, and public buildings-directly owned or primarily used by the general public.
Clearly, the Court decision delivers a blow to home owners and small business owners throughout the country by exercising the power of eminent domain. In this decision, the government can condemn an non blighted working-class neighborhood in order to give the space to private developers to build condominiums, hotels or private office building. These new owners would thereby possibly be in a position to pay more taxes than original owners. For example, if one were to follow the scenario: Tom and Helen own a 2-bedroom, 1,500 sq-ft house. But no they don't. Someone wants to put 5-bedroom, 4,000 sq-ft house on the lot. It will bring in more property taxes. Or, someone wants to turn the 5-bedroom home into a large restaurant because it will generate and produce more taxes than the house. This scenario is appalling.
Antonin Scalia said it well in his analytical argument of the New London's brazen claim: "You can take from A and give to B if B pays more taxes?" What is so shocking is that the Court's decision in essence says that the modifier "public" in the phase "public use" does not limit government power at all. And thus, that apparently is the logic of the opinion of the majority as written by Justice Stevens and jointed by Justices Kennedy, Souter, Ginsburg and Breyer.
"Probably no other organization in the country defends the property rights of citizens... farmers and landowners as staunchly as the Farm Bureau, so this is extremely troubling to us," say John Lincoln, President of the New York State Farm Bureau. And Bob Stallman, president of the American Farm Bureau Federation stated, "Apparently no one's home, farm or ranch land is safe from government seizures because of this ruling." Other groups of citizens have expressed similar shock and outrage at the decision.
Supreme Court Justice Antonin Scalia has asked this question of the Court: "What secret knowledge is breathed into lawyers when they become Justices of this Court? Day by day, case by case, the Court is busy designing a Constitution for a country I do not recognize." And Judge Bork went on to charge: A judge who departs from the Constitution...is applying no law other than his will. Our country is being radically altered, step by step, by Justices who are not following any law."
We conclude by asking the question: if the Constitution does not mean what it says, and as the courts move us further and further from the original intents of the Constitution, then what protects the rights of the will of ALL of the people of whatever persuasion? Who will uphold the rule of law and a strict interpretation of the Constitution rather than the use of the bench to write social policy? The answer to this critical question may very well hang in the balance and determined by those who are appointed and approved to the judiciary. And that critical answer may very well determine the course of history for our American representative democracy and of this generation and of generations to come. That is how we see it FROM OUR PERSPECTIVE.