Steven Greenhut Sr. editorial writer and columnist The Orange County Register sgreenhut@ocregister.com

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 added].

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 center.

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 condominiums.

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 property rights.

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 politically underrepresented.

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 average Americans.

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 for little.