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by Seana Cranston
‘…[N]or shall private property be taken for public use without just compensation.’
Imagine getting a letter in the mail from the City Council that reads, “We think your home and property would be put to better use as a hotel and health club, so start making plans to move out.” Though it sounds unbelievable, yesterday’s 5-4 Supreme Court ruling ensures that any homeowner in America may receive such a letter.
How could this be? The answer involves the Fifth Amendment to the U.S. Constitution, which concludes, “…nor shall private property be taken for public use without just compensation.” In a process known as “eminent domain,” this amendment allows the government to confiscate private property for a public use, but only if the property owner is compensated.
The problem is that the U.S. Supreme Court has broadly interpreted the term “public use” throughout the last century. If “public use” and “private use” are blended together until there is little distinction between the two, this defeats the Fifth Amendment’s original purpose, which was to protect private property from tyrannical government seizures.
The most egregious example yet of “public use” and “private use” thrown together in the Court’s blender occurred in yesterday’s decision in Kelo v. City of New London. As the Associated Press reports, Susette Kelo and other homeowners living in New London, Connecticut, received notice that the city would confiscate their homes to make way for a privately owned hotel, health club and offices.
New London justified its actions by playing a word game with the phrase “public use.” The city claimed there is a “public use” in seizing private property for private development, since such development would increase the community’s economic growth. Kelo and others filed suit against the city.
Justice John Paul Stevens wrote for the majority: “The city has carefully formulated an economic development plan that it believes will provide appreciable benefits to the community, including—but by no means limited to—new jobs and increased tax revenue. … It is not for the courts to oversee the choice of the boundary line nor to sit in review on the size of a particular project area.” Translation: the Court today gives a blank check to local government officials who want to destroy private property rights.
Justices Sandra Day O’Connor, Antonin Scalia, Clarence Thomas and Chief Justice William Rehnquist dissented from the majority opinion. O’Connor’s sharp dissent states that “the Founders cannot have intended this perverse result,” and views justly the majority’s decision as benefiting wealthy, powerful citizens at the expense of the poor and disadvantaged.
In a statement issued soon after the Kelo decision, Dana Berliner, a senior attorney with the Institute for Justice, which litigated the case, declares, “It’s a dark day for American homeowners. While most constitutional decisions affect a small number of people, this decision undermines the rights of every American, except the most politically connected. Every home, small business or church would produce more taxes as a shopping center or office building. And according to the Court, that’s a good enough reason for eminent domain.”
Although this was a sad day for those who recognize that the right to private property is one of the bedrock principles upon which this nation was founded, the hope remains that in the next few years, with the potential of new judges on the Court, today’s judicial travesty will be reversed.
“This ruling is another tragic example of the importance of the looming battle over a Supreme Court vacancy,” said Jan LaRue, Concerned Women for America’s chief counsel. “Whether we sustain or lose our constitutional rights is often decided by one crucial vote.”
Click here to read the Court’s opinion in Kelo v. City of New London.
Seana Cranston is a second-year law student at Catholic University in Washington, D.C., and a summer intern at CWA through the Blackstone Fellowship of the Alliance Defense Fund.
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