The Supreme Court Rules

Against Home Owners

 

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.

This is a bordered-in-black edition. Freedom-loving people throughout the land are in mourning. The United States Supreme Court, in Kelo v. New London, has ruled that your friendly local government can seize your property and give it to another person who promises a higher use, a bigger tax haul for government. The issue in Kelo was that the city was condemning homes and small businesses not for a public use, but for a private economic development project that was being boosted by an international manufacturing company located in the vicinity of the project.

The ruling, in effect, is a de facto amendment of the Constitution, morphing the legal concept of public use, well defined in legal history, into the concept of public purpose that for all intents and purposes can be defined however a creative governing body can twist words and logic. In Kelo, the Supreme Court (and in similar cases, the Kansas Supreme Court--think NASCAR track) has made the goal of increasing tax revenues synonymous with public purpose. With this precedent, no man’s property is his own and a foundation of our free society, private property, has been reduced to rubble. Now a simple majority of any governing body can steal property while making a token, fig-leaf payment to conform with the just compensation phrase of the 5th Amendment. (The governing body does not even have to be elected, for in many cases, elected governing bodies have handed their eminent domain authority off to appointed boards and commissions, or even worse, to private corporations--such was the case in Kelo.)

The ruling removes the need for any pretense of honest price negotiations as would have occurred if those who coveted the land in the first place had been forced to work in the open market place. Now there is no reason to negotiate--few targeted owners are able to afford the legal costs to fight. Threaten the coercive use of government power--eminent domain--and the landowners become “willing” sellers at who knows how big a discount from the price that the market place would have dictated. Justice Sandra Day O’Connor recognized the inequity and likened it to a reverse Robin Hood story--take from the poor, give to the rich. In her Kelo dissent, she wrote:

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. As for the victims, the government now has license to transfer property from those with fewer resources to those with more. The Founders cannot have intended this perverse result.

She quoted John Madison: “[T]hat alone is a just government which impartially secures to every man, whatever is his own.”

Dana Berliner, an attorney with the Institute for Justice (and author of Public Power, Private Gain, a survey of eminent domain abuses across the county), said of the ruling:

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.

(In Public Power, Private Gain, Berliner wrote: “Unfortunately for the citizens of Kansas, their state is one of the worst abusers of eminent domain, especially in comparison to other states with similar population size.”)

Even when the thieving government makes timely compensation with a big friendly smile on its public face for the TV cameras, there remains a gross injustice. The tax dollars paid by the person whose land has been stolen are used to pay him off--he is forcibly taxed to force him off his property. At least when the historical definition of public use (roads, government schools, sewer plants, etc.) was honored, the person evicted had some solace that it was in fact for the benefit of all citizens, not just to line the pockets of a fat-cat developer and give The Clerks more money to squander.

Kelo has established a fertile ground for political corruption. Those who covet your land for their big project have been given an added incentive to find ways, legal or not, to influence those who wield the power of eminent domain to obtain the land for their development schemes “on the cheap.” I would not doubt that an entire lobbyist subset evolves devoted to convincing politicians to steal land for their clients.     *

“I detest that man, who hides one thing in the depths of his heart, and speaks forth another.”  --Homer