A Win for Property Rights

John D’Aloia Jr

John D’Aloia Jr. is a retired navy captain and a submarine commander. He is a columnist for several newspapers in Kansas.

Amazing! There is still hope that the Constitution will survive. On July 30, 2004, the Michigan Supreme Court overturned its infamous 23-year standing Poletown decision. In 1981, the Michigan Supreme Court allowed the City of Detroit to use eminent domain to bulldoze the Poletown neighborhood and give the land to General Motors for an auto plant. In the process, the city destroyed more than 1,000 homes, 600 businesses, and many churches -- and the social fabric of an entire neighborhood.

Fast forward to 1999, when several landowners refused to sell their land to Wayne County for a proposed business and technology park because their land was going to be given to the private developers of the park. The eminent domain case, County of Wayne v. Hathcock (Hathcock was the first landowner listed in the case), reached the state supreme court. In a unanimous decision, the court stated “The county is without constitutional authority to condemn the properties.” And

We overrule Poletown in order to vindicate our constitution, protect the people’s property rights and preserve the legitimacy of the judicial branch as the expositor, not creator, of fundamental law.

The judge who wrote the lead opinion called the Poletown decision a “radical departure from fundamental constitutional principles.” Right there, on page 4 of the decision, the justices invoked the doctrine of original intent, stating:

In this case, Wayne County intends to transfer the condemned properties to private parties in a manner wholly inconsistent with the common understanding of “public use” at the time our Constitution was ratified.

Chip Mellor, president and general counsel of the Institute for Justice, stated

It [Poletown] was a terrible mistake. Now, the Michigan Supreme Court has restored the rights of all Michiganders to keep their homes and businesses, even if another, politically connected private business wants them. This is a great day for property rights nationwide.

Without as much fanfare, the Michigan Supreme Court also decided another eminent domain case in favor of the property owner. Wayne County promised a citizen whose land was under threat of seizure by eminent domain for a stadium that if the person sold the land to the city, it would not give the land to a private party. After the sale, the county gave the land to a private developer. The owner sued, claiming that the project was an improper use of eminent domain powers by the county and that the county did what it had promised not to do. Ultimately, the case had to be appealed to the state supreme court. The court returned the property to its rightful owner.

The Poletown decision became the grandfather of a long series of court decisions across the country that gave governments the ability to use eminent domain to confiscate private property and give it to what amounts the highest bidder. Two egregious examples in Kansas were the use of eminent domain to build the NASCAR track and to put together the parcel of land demanded by Target for its distribution center, both thefts blessed by the Kansas Supreme Court. May the Kansas Supreme Court reverse itself when the next property theft by eminent domain case comes before it.

How a government uses eminent domain provides an insight into how politicians define public purpose. If elected representatives use eminent domain for economic development by taking one man’s property to give to another, it is a pretty safe bet that in all issues, they have an expansive definition of public purpose, willing to stretch the definition and use your tax dollars for every neat project that comes down the pike and tickles their emotions, with little or no concern about the country’s basic principles of limited government, open markets, and the natural and Constitutional rights of individuals. In a nutshell, they are Guardians. They know best how you should live. That the Guardians are less than omniscient in such matters is also borne out by the Poletown project. Scott Bullock, an attorney with the Institute of Justice, said

The Poletown project itself also did not come close to living up to the promises. In all likelihood, it destroyed more jobs than it created.

On the contrary, when elected officials refuse to use eminent domain for anything but the most obvious projects that fit the original and restrictive definition of eminent domain, they are demonstrating that for them, the term public purpose has a narrow definition and they will be loath to invoke it to give away your tax dollars and restrict your freedom and natural rights.     *

“Republics are created by the virtue, public spirit, and intelligence of the citizens. They fall, when the wise are banished from the public councils, because they dare to be honest, and the profligate are rewarded, because they flatter the people, in order to betray them.” --Joseph Story