When conservatives speak of the need to roll back judicial activism, they need look no further than the U.S. Supreme Court’s recent decision to abandon the pleas of property owners.
Refusing to give up their land to a private developer, several New London residents had challenged the small Connecticut city’s plan to raze their waterfront homes and replace them with condominiums, a hotel, private office spaces and other tax revenue-making enterprises that would directly benefit pharmaceutical giant Pfizer, Inc.
The 5-4 majority in Kelo v. City of New London ruled that local governments may forcibly seize private homes and businesses in order to have that space for private economic development. For the nine homeowners who fought the “condemnation” of their Fort Trumbull neighborhood now inevitably set for demolition, the compensation the city will pay for their property is little consolation.
By permitting the effective transfer of property from one private owner to another, the Court added new meaning to the practice of “public use” — damaging liberty and the American Dream of homeownership in the process.
The Fifth Amendment to the U.S. Constitution says “nor shall private property be taken for public use, without just compensation.” Governments have long used eminent domain to take property for genuine public purposes, such as the construction of highways, schools or hospitals.
But the Court’s ruling crossed a frightening line by effectively extending the power of eminent domain beyond its traditional function. State and local governments may now justifiably take private homes and businesses not only for a direct public use but also now for private use.
Justice Sandra Day O’Connor blasted her colleagues for unleashing the power of government to a level tantamount to legalized extortion.
“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,” Justice O’Connor warned, along with dissenters Chief Justice William Rehnquist, Justices Antonin Scalia and Clarence Thomas.
Yet, Justice O’Connor’s rebuke unfortunately reveals a wider reality.
The public interest law firm, Institute for Justice, which argued the Kelo case, found that governments have wrongly threatened or condemned more than 10,000 properties nationwide for private use since 1998.
This is perhaps unsurprising considering the average homeowner lacks the political connections and financial resources to defend against a major corporation with ambitions on their property, and the Supreme Court’s decision in Kelo opens the door to more widespread abuse in the future. Now, a profitable business plan could be all that’s needed to move people out of their homes and onto the street.
One private developer in Weare, New Hampshire has asked the local city council to condemn the farmhouse owned by Supreme Court Justice David Souter so that a hotel may be built on its land. Justice Souter was one of the five justices ruling in favor of New London.
To prevent unjust loses in the future, the Kelo case underscores the need to place limits on government’s power to evict people from their property. Many states — where this ruling is likely to be battled out — do not have well-defined constitutional guidelines on the permissible exercise of eminent domain power. Fewer than 10 states permit the taking of private property to eliminate ‘blight,’ but otherwise outlaw it.
In response to the Supreme Court’s decision, U.S. Senator John Cornyn (R-TX) recently introduced legislation to clarify the government’s use of eminent domain for genuine public use. Moreover, a ballot initiative may appear this fall for Texas residents to add a state constitutional amendment to curb local government’s power to seize property for economic development. Many property owners have welcomed this news.
Not one nervous home and business owner should ever again fall victim to judicial activism that instructs when government may blatantly use eminent domain to force people off the most sacred and personal of possessions — their property.
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