IMAGINE that your whole life you've aspired to live on the waterfront. You work hard, save money, and after many years you can finally afford to move into a small house you've always wanted. You live the American dream -- or so you think, until one day a sheriff's deputy appears at your door telling you that your house has been condemned and you will be forced to leave because someone with more money wants to live there. This sounds like a twisted fairy tale in which Robin Hood steals from the poor. It also sounds illegal, but not now thanks to the recent Supreme Court decision of Kelo v. New London.
The Court recently concluded that local governments can use their power of eminent domain, once reserved only for public projects like roads, to seize private property and turn it over to commercial developers. In the New London case, the victims are residents of a waterfront neighborhood whose homes are being razed to make room for offices, a hotel and luxury condominiums.
But the residents of New London are not alone. Eminent domain abuse happens all over the country. In Bristol, Tennessee, residents defeated a proposal by the government to confiscate their land and give it to the local NASCAR track. The threatened businesses put up roadside signs reminding passersby of the Tenth Commandment: "Thou shalt not covet thy neighbor's property." Local officials accused the land owners of being "greedy."
Funny how someone is being greedy for wanting to keep a home or business that's been in their family for generations, but someone is not being greedy for wanting to use the power of the government to bulldoze that home and make himself wealthy.
One lawyer for New London Development Corporation, the semi-private organization to which the city of New London outsourced its power of eminent domain, commented on the residents who refuse to give up their homes because of sentimental value, "No matter what you offer, they won't consider that sufficient or appropriate. They're just not motivated by the logic of the marketplace."
This makes it sound as if people whose homes have sentimental value are somehow too deranged to accept logic. However, the logic of the marketplace is that of voluntary transaction. If someone refuses to give up their property voluntarily, that does not make it just to motivate him with a bulldozer. That may be the logic of totalitarian central planning, but in most eminent domain cases, the logic of the marketplace is all but thrown out the window.
The government's power of eminent domain, called "the despotic power" by the Supreme Court in 1795, is restricted by the Fifth Amendment to be used only for "public use" and with "just compensation." So how do the Supreme Court's liberal justices think luxury condominiums and a hotel constitute public use? Because the government uses the tax dollars generated by the new upscale property. This is a ludicrous interpretation of the Fifth Amendment that can be used to justify any forced transfer of property in which the new owners would generate more tax revenue. As the dissenting Supreme Court justices warned, "The government now has license to transfer property from those with fewer resources to those with more."
The decision essentially erases the qualifying protections of the Fifth Amendment, since "public use" is no longer a requirement, and the compensation offered is usually only seen as "just" from the driver's seat of the bulldozer.
The deletion of these Fifth Amendment protections comes just before what is expected be a vacancy on the court and a debate about its future direction. President Bush has said he prefers a strict constructionist (someone who thinks the constitution means what it says), while his detractors will justify their strained interpretation with the claim that our constitution is a "living document". Maybe it is. But it's clear after the mortal wound dealt by Kelo v. New London, if judicial activists have their way, the Constitution won't be living much longer.
Herb Ladley is a Cavalier Daily associate editor. He can be reached athladley@cavalierdaily.com.
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