| Sunday, February 27, 2005
House of cards |
In an eminent domain case, the Supreme Court
threatens to shred a bedrock constitutional protection of
After a landmark eminent-domain case was argued before the
U.S. Supreme Court last week, I'm left with the depressing
realization that the court is populated with justices who are
not capable of making the most basic constitutional
distinctions, or of even understanding the crucial
property-rights issue at stake.
The case, Kelo vs. the city of New London (Conn.), involves
this question posed to the court: "Does the Public Use Clause
of the Fifth Amendment permit condemnation of private property
for transfer to other private parties solely for the purpose
of promoting 'economic development'?"
Any Joe off the street could understand the Fifth
Amendment's simple words. No person shall be "deprived of
life, liberty or property without due process of the
law; nor shall private property be taken for public
use without just compensation" [emphasis
So, the government cannot kill you, imprison you or take
your stuff without giving you a chance to make your case, and
it can take your stuff only for a public use. And it
must pay you a fair price for it. Yet the justices, like those
medieval scholars who argued about the number of angels who
can dance on the head of a pin, seemed to be focused on
irrelevancies and unable to grasp the fundamental issues.
"Do you really want the courts in the business of deciding
whether a hospital will be successful ... or a road will be
successful?" asked Justice Sandra Day O'Connor.
Well, the issue here is whether the state can take property
from one private property owner and give it to another private
owner for the sake of economic development. Nothing in this
case in any way questions the ability of government to take
property for a genuinely "public use," such as a road,
hospital, prison or school. For the longest time, the courts
had no trouble distinguishing a road from a chain store.
And, excuse me for noticing, shouldn't the justices be more
concerned about the civil liberties of individuals than about
inconveniences placed on the government?
In Kelo, the city of New London handed over its
eminent-domain power to a private development corporation that
cleared away part of a working-class neighborhood along the
waterfront. Fort Trumball is a prime location, and many of the
Victorian-era homes had been in the families for generations.
But the city helped pharmaceutical giant Pfizer build a large
research facility nearby, and wanted to create upscale
shopping and condominiums to cater to the new corporate
Many property owners sold their homes to the city to avoid
a long legal battle. But several decided to fight. Defended by
the libertarian legal group, the Institute for Justice, the
homeowners, including Susette Kelo, argued that it is clearly
not a public use to remove one set of homeowners in order to
benefit another set - i.e., the new owners of the proposed
Since 1954, when the Supreme Court upheld a Washington,
D.C., urban renewal plan that involved transferring private
property from some owners to others, cities have justified
their eminent-domain powers in the name of blight removal,
which the courts found to be an acceptable "public use." But
rust never sleeps, and government officials kept pushing the
envelope to find broader justifications for taking property
from Peter and giving it to Paul.
In 1981, the Michigan Supreme Court upheld the city of
Detroit's plan to remove a thriving 400-acre-plus neighborhood
to make way for a General Motors assembly plant. That case was
overturned last July by the state Supreme Court, 23 years too
late for the residents whose homes and businesses were
destroyed on behalf of a powerful corporate player promising
economic development benefits to a city.
In July, however, the Michigan court relied on the clear
words of the Constitution. Public use means public use, not
private benefit. The court agreed with the property owners who
had brought the lawsuit that under the current situation, no
one in America has secure property rights. If a government can
justify eminent domain based on the elastic term "economic
development," then any property is fair game - as long as a
city finds a new use that will pay a higher rate of taxes than
the current use.
Orange County residents saw that in Cypress, where the City
Council declared eminent domain in 2002 to stop a church from
building on its property, to sell the land at a discounted
price to Costco. The city's rationale was clear: Churches
don't pay taxes, Costco pays large amounts of taxes.
Voila, the transfer is a public use under such
thinking. Fortunately, federal Judge David O. Carter thought
otherwise, making a sound constitutional argument on behalf of
But the current crop of Supreme Court justices, with the
exception of Antonin Scalia and perhaps Clarence Thomas (who
was apparently silent) and William Rehnquist (who was absent),
did not seem to grasp the basic precepts at stake in Kelo.
"The rationale for this is essentially the rationale for
the railroads, the public utilities, and so on: there isn't
another practical way to do it," said Justice David Souter.
This is a straw man. The case isn't about roads, but about the
transfer of private property from homeowners and small
business owners to big business.
Even the attorney representing the city of New London
acknowledged that point. He agreed wholeheartedly that it
would be appropriate for a city to use eminent domain to take
a Motel 6 in order to give it to Ritz-Carlton because
Ritz-Carlton appealed to a more upscale clientele and would
therefore provide more money to the city budget.
What particularly outraged Susette Kelo was the idea that
she would be driven from her home to give that land to a
developer who would then build a home for someone else. Under
current law, the government can pick winners and losers for
virtually any reason, and whenever it does such it invariably
favors the wealthy and well-connected over the poor or
Many liberals, who claim the high road in their concern for
the poor and working people, seem unable to grasp the
connection between upholding property rights and helping
In a Los Angeles Times op-ed last week, New York trial
lawyer Martin Garbus defended the government in the Kelo case,
asking: "Do we really want to allow the court to obstruct
socially desirable legislation in the name of the property
rights of corporations?" Actually, it is the property rights
of folks like Susette Kelo that are being sacrificed here for
the "socially desirable" goal of a sort of corporate welfare
for the likes of Pfizer and the retail and real-estate firms
who would occupy the land where Kelo's house now sits.
Instead of sticking up for the downtrodden, liberal Justice
Ruth Bader Ginsburg couldn't understand what was wrong with
the process, given that New London was only trying to "build
[the city] up and get more jobs."
Never mind that such promises - building things up - rarely
materialize. The GM Poletown plant, for example, although
still operating, never came close to providing the promised
economic benefits. And look at Orange County's own troubled
redevelopment projects, such as Triangle Square in Costa Mesa
and the Kaleidoscope in Mission Viejo.
Regardless of whether government central planning pans
out, the fact is that the Constitution - the document the high
court is supposed to defend and interpret - is about
protecting individuals from the government, not about
protecting the government's interests.
What about the reality that governments often fail to give
property owners due process?
The justices - even Scalia - seemed concerned that a
decision in favor of the property owners would mean that the
courts would be forced to review each individual government
taking. But, as eminent-domain attorney Chris Sutton of
Pasadena explains, the courts are more than willing to review
cases of individual liberty when it comes to freedom of
speech, religion or other constitutional rights. Why is
property so different?
And only Justice Stephen Breyer seemed concerned that
governments often underpay property owners. But instead of
wanting to rein in government power, he talked about finding a
way to revisit the issue of just compensation. Again, this is
not the core principle at stake.
We'll see what happens when the decision is announced this
summer. I'm left concerned not only about the state of
property rights in America, but at the state of the high court
where, apparently, the simple words of the Constitution count
Greenhut is the author of "Abuse
of Power: How the Government Misuses Eminent Domain" (Seven
Locks Press, 2004). Contact him at
or (714) 796-7823