The US Supreme Court’s Terrible Decision on Eminent Domain

On June 23, 2005, the US Supreme Court ruled in the case Kelo v. New London that a municipality can seize private property if there is a benefit to that municipality. This right of ‘eminent domain’ has, in the past, been used largely to secure land to be used to build infrastructure, such as expressways. But now, a municipality can seize property simply because it can generate more tax revenue under some future use than under its current use. In other words, if your town or city can generate more tax revenue by replacing your neighborhood with a shopping mall, it now has the right to do so.

Everyone’s knee-jerk reaction to this should be, “This is an outrage! Someone should show the US Supreme Court the Fifth Amendment to the US Constitution!” This is definitely a good first reaction, and it is the principle that should have guided the Supreme Court.

The portion of the Fifth Amendment that pertains to private property reads: “nor shall private property be taken for public use, without just compensation”. While the phrase “without just compensation” implicitly gives the government the right to take your property as long as they pay you fairly for it, the key phrase here is “public use”. Based on the general flavor of the Constitution, something tells me that our founding fathers would not have defined “increasing municipal real estate tax revenue” as a justifiable “public use”.

Part of the genius of the constitution, and its Achilles heel, is its lack of excruciating detail. (Compare this to the tomes produced by congress today. Senators and congresspersons virtually never read the bills they vote on in their entirety simply due to the massive number of pages, and are often surprised later by some of the provisions in them. See “US Patriotic Act” and “Campaign Finance Reform”.) In the case of the Fifth Amendment, the founding fathers didn’t specifically define “public use”. They simply took it on faith that future generations, once having their private rights affirmed by the US Constitution, would not so easily let them go. How wrong they were.

Like most constitutional issues, this one is subject to some interpretation. Again, in this case, it boils down to what any given person (or Supreme Court justice) defines as “public use”. I think the two camps in this debate today can be pretty clearly defined: those who think the government should have more authority over your rights and your property, and those who think it should have less. The point at which government has total control over all property can be “socialism”, “communism” or even “fascism”, and none of those are very pleasant, nor do they work. (See “North Korea” or “former Soviet Union”.) The point at which government has little or no control over private property is called “freedom” or “liberty”. This is the direction the founding fathers wanted to take this country, which clearly cannot be said of this Supreme Court.

If the founding fathers were alive today, they would be grabbing their pitchforks and marching to Washington. I am sure they would want to have a few words with the Supreme Court justices who ruled in favor of this decision. Where is Samuel Adams when we need him?

For more information on this particular case, visit the Institute for Justice at:

http://www.ij.org/private_property/connecticut/index.html

For more information on the Fifth Amendment, and other components of the US Constitution, visit Find Law for Legal Professionals at:

http://caselaw.lp.findlaw.com/data/constitution/amendment05/14.html#2