The Real Problem with Kelo: By Intervening without Jurisdiction in a State-Level Eminent Domain Case, the U.S. Supreme Court Has Imperiled Property Rights Nationwide

Article excerpt

Imagine sitting on the porch of the farmhouse you inherited from Morn and Dad. You have 20 acres on the fringe of a small city, but within corporate limits. Though the city's commercial growth has insidiously crept closer to your land, you have never worried about losing it. It is yours, and so is the view of the rivulet running through it.

But while you are enjoying the verdant vista, a nameless developer, along with nameless city officials, is plotting your land's future. A "better use" for your property, they decided, would be a small industrial park and shopping center. This would encourage "economic development," a euphemism for the increased tax revenue that would occur as a result of giving your land to a large commercial interest.

The plotters offer you "fair-market" price for the land, less than what you would receive if you sold it on the market. You refuse. Five years later, a court rules that the private developer can seize your land with "just compensation."

This scenario, save a few minor details, just played out in Connecticut, the court in question being the Supreme Court of the United States. But what the High Court said is less disturbing than the fact that the court said anything at all. The decision sets a precedent that could acutely affect property owners in all 50 states. But that's just one problem with the case. A second is how the Constitution was misused again by people who should know better.

Official Plunder

The case was Kelo v. City of New London. Using the stalking horse of a private development corporation, New London sought to seize an historic 90-acre neighborhood called Fort Trumbull, which fronted the Thames River. The plan was to build a sprawling compound with office buildings, a hotel, a marina, high-income private housing, and other facilities, near a $270-million complex owned by Pfizer, the pharmaceutical leviathan.

Several Fort Trumbullites stood athwart the city. One had lived in her home since 1918, a home the family has owned since 1901. Another, Susette Kelo, purchased and remodeled a home in 1997. She loved her home, and did not want to sell.

Backed by the libertarian Institute for Justice, Kelo and her neighbors went to court to defend their acre-and-a-half--and lost. If a destitute city wants to pirate a property and sell the ill-gotten booty to another private owner who generates more tax revenue, the Connecticut Supreme Court ruled, then it can. Kelo and her allies next went to the top of the legal food chain, citing the Fifth Amendment's protection against unlawful "taking" of private property. In June, they lost again. In a majority opinion, the U.S. Supreme Court said it could not "second-guess" local governments--a laughable objection, in light of decades' worth of "second-guessing" on matters ranging from property rights to public prayer.

Takings for "public use" have always been associated with using the land for a genuine "public need," such as road construction. But Associate Justice John Paul Stevens, writing for the majority, ruled that a city may seize property from one owner and hand it to someone else because "promoting economic development is a traditional and long accepted function of government." Of course, a practice may be traditional, long accepted, and entirely unconstitutional.

In her dissent, retiring Associate Justice Sandra Day O'Connor protested that such an approach to "economic development" would allow the rich to plunder the poor. The "specter of condemnation hangs over all property," she wrote. "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."

O'Connor's point was sound, and her warning resonated with condemnations of the Kelo decision that poured from talk radio programs and filled editorial pages nationwide. The hounds of Capitol Hill, sniffing wind scented with a winning issue, sprang from their haunches. …