Whose Land Is It Anyway?

Two weeks ago, the Supreme Court ruled in the case of Kelo v. City of New London. In its decision, the court held that it was legal for the City of New London to condemn private property under eminent domain and then transfer the deeds to private business for economic development. In the Court’s words, “The city’s determination that the area at issue was sufficiently distressed to justify a program of economic rejuvenation is entitled to deference. The city has carefully formulated a development plan that it believes will provide appreciable benefits to the community, including, but not limited to, new jobs and increased tax revenue.” Later in the opinion comes this: “There is no allegation that any of these properties is blighted or otherwise in poor condition; rather, they were condemned only because they happen to be located in the development area.”

There is a public perception in this country that eminent domain can only be used for certain things, such as bridges and highways, railroads, slum clearance, or, more controversially, stadiums. All of these circumstances, and others, are ostensibly for direct public use, even when the areas in question are transferred to private ownership. But in this case, the Court has ruled that public perception is far removed from the rule of law. What the Supreme Court has done in this case is affirm that local municipalities and state governments have the right to take away a person’s home and hand it over to a private business that will make a tidier profit with the land than the current occupants. This was an easy case to make in the area of New London in question. There was an argument before the court that the city could not guarantee future revenues from the development, and thus could not justify condemning the properties, but there honestly is no real way the city can lose from this arrangement.

Therein lies the issue. The Court makes it plain in its opinion that there is no cause for simply condemning property and handing it over to businesses solely for the purpose of tax revenue, unless there is an added element of sufficient economic distress already present. Understandable. New London needs jobs, and it needs increased tax revenue, in order to continue to function as a viable city. The city is in serious need of good fortune. However, property is one of the sacrosanct rights and virtues of the United States. In the past, it was only because of great need, or a property owner’s failure to keep their property up to societal standards, that has led to condemnation for development. The need in New London is considered great, and the development area does contain some parkland, but the condemned properties, and the vast majority of the properties already acquired by the city, are being transferred to private businesses, not for public use, but in order to turn a profit.

Also, the Court itself pointed out that the area, while in economic distress, is not blighted, and in fact, has residences that are well maintained, and in some cases, have been occupied by the same residents or successive members of a single family for decades. There is nothing wrong with these homes. There is nothing wrong with these homeowners. The Court has placed a value on the quality of who owns property.

The life of a community rests on those who occupy that community. A city exists for the sole purpose of providing a haven for its residents; one of opportunity, safety, and security in knowing there is a place you can call home and a city in which you can make a living. Improving one while harming another is no way for a city to solve its problems. New London finds itself growing increasingly unable to provide many of the benefits a community needs because of a lack of funds. But they have chosen to address this problem by taking away peoples’ homes in the guise of the greater good. This is wrong. The greater good cannot be allowed to ignore the fact that it is causing great harm to residents of the city that are now supposedly worth less than any other.

These homeowners are, in effect, being punished for where they live. They have been told their homes are not valuable enough for the city to continue to allow them to live there; that the property they live on has been misused; that they are worth less than a business. They have been told that businesses occupying the former sites of their homes will eventually be of greater benefit to the city and its residents than they are. This amounts to political and economic hubris of the most tragic order. The city of New London has no business seizing the property of its citizens and handing it over to private enterprise, regardless of whether there will be a tangible economic benefit. Their rights as owners of that property trump any benefit the city has to rely on outside businesses to incur. There must be another way.

In addition, there is a strong, even inevitable chance, that the Supreme Court’s decision in support of New London’s argument will open the door to serious abuse in the name of economic need. Where New London desperately needs help, and has decided to violate centuries old pacts of the right to property, other cities may see a rising tide of eminent domain as profit-seeking.

The Court has now opened the door for speculative bidding among municipalities in order to attract profit-making enterprises. No longer will a community in any city be safe from the wrecking ball, no matter how well maintained, if the city can provide evidence that is has sufficient need.

In her dissent from the majority opinion, Justice Sandra Day O’Connor writes, “While the Takings Clause [of the Fifth Amendment to the Constitution] presupposes that government can take private property without the owner’s consent, the just compensation requirement spreads the cost of the condemnations and thus ‘prevents the public from loading upon one individual more than his just share of the burdens of government.'”

She continues, “[T]he Court today significantly expands the meaning of public use. It holds that the sovereign may take private property currently put to ordinary private use, and give it over for new, ordinary private use, so long as the new use is predicted to generate some secondary benefit for the public—such as increased tax revenue, more jobs, even aesthetic pleasure. [I]f predicted (or even guaranteed) positive side-effects are enough to render transfer from one private party to another constitutional, than the words ‘for public use’ [from the Fifth Amendment] do not realistically exclude any takings, and thus do not exert any constraint on the eminent domain power.

“[W]ho among us can say she already makes the productive or attractive use of her property? The specter of condemnation hangs over all property. Nothing can prevent the State from replacing any Motel 6 with a Ritz-Carlton, any home with a shopping mall, or any farm with a factory.

“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.”

I can understand the frustration that must have been felt in city hall in New London. They had a plan for recovery, and all that was standing in its way were nine property owners. Nine, out of a city of 25,000. But this is not a country where the rights of the few can be trodden on by the starry-eyed dreams of government officials. Our very identity is interwoven with the ideals of equality for all. No property, no matter how small or underused, is any less valuable even than the land on which sits the Supreme Court. This decision is nothing less than a direct conflict of values and necessity: the moral value of the needs of a city to help provide for its residents versus the rights of some of the residents who are being harmed in the process. In this case, it was essential for the Court to sustain the rights of those few New London residents against the perceived benefit to the city in order to sustain the rights of every individual American that owns a small parcel of land or two. Instead, the Court has chosen to go along with a city victimizing its own residents.