Exclusive: Kelo Ruling Puts American Dream at Risk

Justice David Souter is probably breathing a sigh of relief.

Last month, New Hampshire voters rebuffed attempts to seize the Supreme Court justice’s home and transform it into a private inn. This effort was an orchestrated protest of the Supreme Court’s 5-4 decision in Kelo v. New London, in which Souter joined the majority. While theatrical, the proposed seizure of Souter’s home is not surprising: There are few recent Supreme Court cases that elicit as visceral a reaction as Kelo. As well it should.

The Supreme Court held in Kelo that the government could use its eminent domain powers to seize a private home and deliver it to private developers, if they promise to help increase the government’s tax base. In other words, your local government has the right to take your home and give it to a private corporation, which in turn, can turn your life’s dream house into a parking lot.

To be sure, there are legitimate uses of eminent domain. The Constitution makes it clear that private property may be taken by the government for “public use” in exchange for “just compensation.” Eminent domain power has been properly used for public parks, roads, and canals. Times Square in NewYork City went from the nadir of urban decay to the zenith of economic revitalization in part because the City used its eminent domain powers.

Consider, however, that in Kelo, “Those who govern the City were not confronted with the need to remove blight.” Public use was not the need to build a road, or a park. Public use was not the eradication of urban blight. Rather, public use was a desire by the state to provide in the counties’ words, “increased tax revenue.”

Last I checked, taxes were already too high, especially in my native state of New York. Under no circumstances is tax revenue necessary in and of itself. The filling of government coffers, at the expense of private home ownership, is not “public use.” A government use, yes, but a public use, no.

Kelo has turned the relationship of the state and its citizens upside down. Now, the government exists independent of its citizens, and lives to feed its own appetite for cash. The citizens’ role is to sate this appetite.

The court seemingly accepts the state’s right to increased tax revenue a priori. New London could be creating a new inefficient government program; expanding bloated entitlements; or redistributing wealth. It might even intend to use the money to plug a budget gap. It doesn’t matter. The state’s right to property under Kelo takes precedence over the citizens’ property right. The government, and its designated private developers, has a right of first refusal over all property. This is not what the Founding Fathers intended, and this is why Kelo is a departure from American jurisprudence.

Like something out of an Orwell novel, the Kelo court has given us a “doublespeak;” i.e., it has told us that the taking of our homes, and our income, is a good thing. It is a community benefit, even though the property is being transferred from private homeowners to a private development corporation. When the government increases its tax receipts, we all benefit, even though we may not be the beneficiaries of that tax revenue.

A better decision would have recognized that the state has no right to “increased tax revenue.” The citizens, and our constitution, limit that function. There is, in the final analysis, no such thing as government money; there is only taxpayers’ money.

As Justice Clarence Thomas correctly pointed out, under Kelo, Souter is safe from government intrusion in his home itself, but his home itself is not safe.