The Supreme Court dealt a huge blow to another American foundation yesterday, when it expanded the reach of the power of eminent domain. This comes not long after their ruling in Gonzales v. Raich where the court stomped all over states' rights.
This new case, Kelo vs. New London, dealt with the issue of whether a government could, using the power of eminent domain, take property from a private owner and then turn it over to a private developer. More specifically, was such an action considered "public use," as per the Fifth Amendment, which states, in part, "... nor shall private property be taken for public use, without just compensation."
The particular phrasing is very important here. The amendment states "public use," not "public good." The majority opinion in this case, as well as some of the analysis I have heard about the subject, seems to miss this distinction. The "public use" clearly means use by the public, whereas "public good" is much more nebulous; it would include the collection of more tax revenue, as seems to be the point made by the city of New London, and with which the majority agreed.
This public benefit, however, is not "public use." In fact, it is not even an assurance of a public benefit. What the city of New London, and the private developers to whom the land is to be given, is a plan for developing the particular area. The plan is not going to make any tax revenue automatically, and for a time (once the private residences are demolished), the property value of the land will actually decrease. It is not until something new is actually done with the site that the city will be able to charge more. However, there is no assurance that any of this will actually be carried through on. It's entirely possible for the project to be halted, with the existing private homes demolished but no new construction on the site.
As a related example (though not connected to the discussion of eminent domain), there was a plan in Asbury Park, NJ, to revitalize its waterfront with the construction of a 10-story building for luxury condos. Construction got underway, backed by large sums of money from the city, but was abandoned when the developer went bankrupt. To this day, the half-completed building still stands, an eyesore to the town. One Asbury Park official was quoted in the Star-Ledger as saying, "People hate it so much they would pay to blow it up."
The possibility of abandonment is far from the biggest problem I have with this (in fact, most redevelopment plans don't end this way; I merely included the example of Asbury Park to show that plans and promises do not necessarily provide certainty). What I am most outraged about is the blatant assault on private property rights and the huge potential for abuse by corporate entities.
One of the principles of our Constitution is the protection of private property. While it is implicit in the fact that the Constitution was heavily influenced by the ideas of John Locke, it is also explicit in the Fifth Amendment: "nor shall private property be taken for public use, without just compensation." The founders recognized, however, that sometimes absolute private ownership could be a problem, and that sometimes the state could make better use of land or property for the benefits of all its citizens than could a private owner, hence the need for this clause's inclusion.
It is more than just the decision in the case that angers me. In the syllabus preceding the opinions for the case, the court states that "Petitioners' proposal ... that economic development does not qualify as a public use is supported by neither precedent nor logic." I think it is perfectly logical how "public use" is different from public benefit. The property is still going to be privately owned, and in that, it is not "public use." Despite the fact that the hotel, restaurants, shops, and marina that are to be built on the property will be "open to the public" in the same sense as any other restaurant or store, they are still not public property. The owners of the property retain the right to deny access to anyone they want, for whatever reason. That is not public property, nor can it be considered "public use." This hardly defies logic; in fact, I fail to see how it could be any clearer. I think that a comment by radio host Jim Kerr (who, I think we can all agree, is hardly exploring legal nuances and technicalities) sums it up best: "It just seems un-American."
I mentioned earlier that I feel there is a huge potential for abuse here, particularly by corporate entities. There was a case in California City, CA, where the town wanted to take 700 acres of privately-owned, mostly desert land and turn it over to Hyundai for the construction of a test track. I haven't been able to follow up on this, so I don't know what has transpired since, but I do have a disturbing quote from the town's mayor, Larry Adams: "I think it's a matter of one or two [who] probably are true believers in the freedom of mankind, blah blah blah, and they don't like eminent domain."
What is deeply disturbing about that case is the attitude of the mayor. Rather than try and represent the interests of the people who would be affected, he simply dismisses them out of hand for wanting to hold on to their property.
Other potential for abuse certainly exists. Given that corporations can come in to a town and make promises about bringing in new revenue and new jobs, city councils and other elected officials, especially those in towns that are, like New London or Asbury Park, experiencing hard times, listen to these promises very intently. When just making these promises doesn't work, there are other methods that can be used to influence politicians to support the corporation's interest. In any case, if the corporation decides it wants just about anything, it is going to have the backing of the town (and now the expanded power of eminent domain) to help make sure it gets it. We could have, in effect, corporations taking property from individuals (with the full approval of the government.
Perhaps most disturbing of all is that we now have a federal government which can effectively assume any power it wants, and it can take anything from anyone and give it to anyone else it wants, and all of this is now sanctioned by the branch of government that is supposed to be a sanity check on the other two. This was specifically what the federal government was designed not to do. The shredding of our Constitution continues, and I'm not sure that America can (or should) survive it.