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Supreme Court deals blow to property rights

By Steven Martinovich

The Professor(June 27, 2005) When America's Founding Fathers amended the constitution to allow government to use eminent domain they likely didn't expect that it would be used to seize the property of one private interest in order to benefit another. Last week the Supreme Court ruled that the Fifth Amendment -- which states clearly that eminent domain must be used only for "public use" -- does exactly that, effectively expanding the original parameters of eminent domain.

In Kelo v. New London the court ruled against seven property owners fighting the city of New London, Connecticut. Several years ago the city declared that the homes and businesses of 70 families were to be demolished in order to make room for a 90-acre private development -- a complex consisting of a health club, riverfront hotel and some offices. Not for a public works project that would legitimately serve the needs of all citizens of New London, but a transfer of land from a group of citizens to a private corporation.

Traditionally eminent domain has been used in order to make way for public works, such as removing homes for a new highway. Increasingly, however, it is being used by local governments to evict property owners in favor of other private interests -- ostensibly in favor of a development that will bring in more tax revenue. Between 1998 and 2002, governments have used or threatened to use eminent domain more than 10,000 times in 41 states with this sort of justification.

The defendants in the case argued that eminent domain should only be used for a true public good, such as to build roads, schools or revitalize a blighted area -- a designation the city admitted didn't apply to the working class neighborhood. With their decision, the Supreme Court argued that the public good now also consists of seizing the homes of Americans simply to boost economic growth. In her dissenting opinion, Justice Sandra Day O'Connor struck at the heart of the issue.

"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."

By ruling against the seven families the Supreme Court has essentially declared that no private property is safe in the United States. If increased tax revenues, employment or economic growth is the justification that local officials can use to seize homes, then millions of Americans are at risk of being given below market offers and forced to move. Dana Berliner, an attorney for the owners, said it best when she pointed out that "[a]nyone's home can create more jobs if it is replaced by a business and any small business can generate greater taxes if replaced by a bigger one."

The modern incarnation of eminent domain saw its roots in 1954 with Berman v. Parker, a Supreme Court decision which allowed Washington, D.C. to seize the property of poor African-Americans for redevelopment. Until recently middle-class Americans probably thought -- if they gave any thought to the issue at all -- that their property was safe. With the ruling in Kelo v. New London, that fantasy has been dispelled. Unless you're wealthy or a developer, your property belongs to you only so long as someone else doesn't covet it.

The fact that eminent domain even exists is regrettable but the Supreme Court's decision in Kelo v. New London now allows an all but unlimited use and abuse of this awesome power. Thousands of hard-working Americans across the nation have already been ejected from their property. As Matthew Dery, another Kelo property owner said not long ago, "People who've never experienced this sort of treatment at the hands of the government should realize that this could happen to them. You take for granted that, in America, you own your property until you choose to sell it, but that's not the way it is ... The knock at your door could be next." Thanks to the Supreme Court your only response can be to hand over the keys.

Thanks for reading,

Steven Martinovich



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