Eminent Domain

I don't like to get political on this blog, but the ramifications of today's supreme court decision... ugh.


I'm cool with the concept of eminent domain as specifically limited in the Fifth Ammendment of the US Constitution, ratified in 1791, along with the rest of the Bill of Rights...

(In case you haven't read it in awhile [emphasis added]:
No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.)

...but to set a precedent where any private developer, that establishes with a municipal governing body that what he can build on my property is probably (because really he doesn't know for sure) somewhat more beneficial to "the public" than my house, can just thereby take my house and leave me with no apparent legal avenue to resist... well that's just bad news for all of us. Ironically, even for the developer that might want to take my house.

My thought is, maybe those of us that comprise "the public" should get together, form a "private non-profit entity" operating in the public interest, and then propose a really kicking economic development package to be built on the very spot where the head of the New London Development Corporation (Michael Joplin) lives (there's only one Michael Joplin listed in New London, CT... 35 Union Street Unit 416). Then maybe that person would go back to the Supreme Court and say, "um... yeah, that whole taking the land thing... can we just forget that ever happened, you know, say nevermind and all?" I'm just making the "what's good for the goose" point here.


Personally, I'm with the dissenting Justice O'Conner on this one. Here's significant portions of her statement from the official court opinion if you haven't read it (and you should read the whole thing):

Over two centuries ago, just after the Bill of Rights was ratified, Justice Chase wrote: "An ACT of the Legislature (for I cannot call it a law) contrary to the great first principles of the social compact, cannot be considered a rightful exercise of legislative authority . . . . A few instances will suffice to explain what I mean. . . . [A] law that takes property from A. and gives it to B: It is against all reason and justice, for a people to entrust a Legislature with SUCH powers; and, therefore, it cannot be presumed that they have done it." Calder v. Bull, 3 Dall. 386, 388 (1798) (emphasis deleted).

Today the Court abandons this long-held, basic limitation on government power. Under the banner of economic development, all private property is now vulnerable to being taken and transferred to another private owner, so long as it might be upgraded--i.e., given to an owner who will use it in a way that the legislature deems more beneficial to the public--in the process. To reason, as the Court does, that the incidental public benefits resulting from the subsequent ordinary use of private property render economic development takings "for public use" is to wash out any distinction between private and public use of property--and thereby effectively to delete the words "for public use" from the Takings Clause of the Fifth Amendment. Accordingly I respectfully dissent.
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..the absurd argument that any single-family home that might be razed to make way for an apartment building, or any church that might be replaced with a retail store, or any small business that might be more lucrative if it were instead part of a national franchise, is inherently harmful to society and thus within the government's power to condemn.
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...the Court today significantly expands the meaning of public use. It holds that the sovereign may take private property currently put to ordinary private use, and give it over for new, ordinary private use, so long as the new use is predicted to generate some secondary benefit for the public--such as increased tax revenue, more jobs, maybe even aesthetic pleasure. But nearly any lawful use of real private property can be said to generate some incidental benefit to the public. Thus, if predicted (or even guaranteed) positive side-effects are enough to render transfer from one private party to another constitutional, then the words "for public use" do not realistically exclude any takings, and thus do not exert any constraint on the eminent domain power.
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Even if there were a practical way to isolate the motives behind a given taking, the gesture toward a purpose test is theoretically flawed. If it is true that incidental public benefits from new private use are enough to ensure the "public purpose" in a taking, why should it matter, as far as the Fifth Amendment is concerned, what inspired the taking in the first place? How much the government does or does not desire to benefit a favored private party has no bearing on whether an economic development taking will or will not generate secondary benefit for the public. And whatever the reason for a given condemnation, the effect is the same from the constitutional perspective--private property is forcibly relinquished to new private ownership.
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Any property may now be taken for the benefit of another private party, but the fallout from this decision will not be random. The beneficiaries are likely to be those citizens with disproportionate influence and power in the political process, including large corporations and development firms. As for the victims, the government now has license to transfer property from those with fewer resources to those with more. The Founders cannot have intended this perverse result. "[T]hat alone is a just government," wrote James Madison, "which impartially secures to every man, whatever is his own."