Staunch Conservatives Stand Up
Against Threat To Private Property

In an era when many Americans seem willing to follow an increasingly radical conservative agenda and give up various individual freedoms in exchange for at least the appearance of greater security, on June 23rd four of the staunchest conservatives on the U.S. Supreme Court stood squarely against what may be the greatest reduction of individual rights and family security that has yet been seen in this nation. To their great credit they stood against an amazing expansion of federal, state and local government ability to take private property!

It is a vast irony that this measure – the 5-4 Supreme Court ruling that has geometrically expanded the ability of government to use Eminent Domain proceedings to take private property and now be able to give it to other private parties – was supported by Justice John Paul Stevens, who wrote the opinion for the majority, which included Ruth Bader Ginsberg, David H. Souter, Stephen G. Breyer and Anthony M. Kennedy. These justices are normally the moderating force on what is generally a conservative court.

Eminent Domain is tied to the Fifth Amendment to the Constitution, which reined in government action relating to private property by stipulating that not only must such takings be paid for in real value, but that they must be justified in very practical terms; i.e., the need for a new or expanded road, a bridge, a new or expanded waterway, and so forth that is clearly necessary for government to accomplish on the behalf of the general public. And such land takings have always required that the government entity be prepared to justify its rational and actions in court, therefore assuring that property owners could question whether a land taking truly was in the public interest.

But in this opinion the majority on the Supreme Court has opened the door for any government entity, all the way down to local municipalities, to decide that an individual’s home and property can simply be better used by another owner, most likely a private developer, and all the local government leaders have to do is make a case that the new use of the property will in the end be more beneficial to the community, perhaps just in tax revenue.

This decision came about in a case involving a small group of homeowners who would not sell out to accommodate a New London, CT, plan to turn 90 acres on its shoreline into the site of a marina, an office complex, etc., all to be funded by commercial enterprises, including banking interests, anxious to capitalize on the immediately adjacent development investments by the giant pharmaceuticals company, Pfizer. It is unclear whether Pfizer will also take advantage of the Supreme Court decision and invest in development of that part of the waterfront.

The few homeowner hold-outs, all crammed together on small parcels of land, might have seemed to be simply obstructionist, preventing a project that could provide needed jobs and dollars for economically depressed New London. But it is more personal than that, as is so often the case. The Washington Post’s Charles Lane reported, on June 24^th, that one of the homeowners, "Susette Kelo, had extensively remodeled her home and wanted to stay for its view of the water. Another, Wilhelmina Dery, was born in her house in 1918 and has lived there her entire life."

It doesn’t seem difficult to see how the Supreme Court decision allowing local authorities to evict these people, and their neighbors, by allowing New London to condemn their property under a vastly expanded Eminent Domain concept can and will be abused. This is not just a green light for New London; it is a national precedent.

The potential abuse of this new Eminent Domain power is easy to see, but apparently remained invisible to Mr. Stevens, Ms. Ginsberg, Mr. Souter, Mr. Breyer and Mr. Kennedy.

Imagine, for example, a family farm that has been in the same family for generations but is now located adjacent to an intersection of major highways. A developer could decide that a hotel complex, perhaps with a shopping mall, could be perfectly developed in that location, and now all that developer has to do is convince local elected and appointed officials that this would be a positive good for the municipality, if nothing else by increasing overall tax revenue. The municipality can then move directly against the family farm, regardless of whether or not the family wishes to sell, and take the land to give to a private developer for commercial purposes.

The same, of course, can be said for any private property, whether on the seashore, the prairies, the mountains or the suburbs: If someone wants it, all they have to do is convince the local authorities of the advantages they will provide and it can be taken, despite the history of the people who own the land, their struggles and their pride in their property.

Here is a true lack of security and an undermining of American values.

No individual or family can be secure any longer. The state and its municipalities can take land anywhere and give it to other private parties for their use and gain, just so long as they tie some rationale to it about how it will benefit the overall community. This is an ugly farce that in fact has the ring of collectivism to it.

At a time when available land is becoming more and more scarce, this is the greatest gift for developers. Suppose, for another example, that a family has owned a small parcel of four to five acres for 100 years or more, and in the intervening years the area has become highly desirable but the family is committed to holding its property and its history for future generations, and therefore has rejected offers to sell. A developer no longer would have to deal directly with the family.

The developer could go before the local government and assert how such open space should be used for elderly housing, for but one example, and that this private enterprise would help the community meet its senior citizens needs. All the government leaders have to do is agree and it will become a fait accompli; the local government will become the tool by which the developer forces the family off the land and takes it for commercial, profitable development.

And anyone who doesn’t realize developers and other businesspeople with deep pockets won’t seek to use behind-the-scenes tactics and influence to gain valuable privately owned property is naïve. Perhaps Mr. Stevens, Ms. Ginsberg, Mr. Souter, Mr. Breyer and Mr. Kennedy are that naïve, believing that somehow their decision will only be used fairly to enhance a "public purpose," in Justice Stevens’ words, which could be construed as meeting the demands of the Fifth Amendment if jobs are created in a depressed area, etc.

But if such misguided idealism was the foundation for this decision, it is a study in White Tower other-worldliness. This ruling will have a cascade effect that will destroy one of the pillars upon which the United States was founded; that is, the ability to own private property without fear of loss through the political actions of government.

That security has now been fully breached.

It is to the credit of Supreme Court Justice Sandra Day O’Connor, who wrote the dissenting opinion, and Chief Justice William H. Rehnquist who joined her, together with Justices Antonin Scalia and Clarence Thomas, that this expansion of Eminent Domain power was forcefully opposed. It doesn’t matter whether they were personally defending large corporate or private holdings or not, in this instance the argument is all of one piece; the underpinnings of the country have been weakened by this Eminent Domain expansion.

Justice O’Connor, as quoted by Mr.Lane in the Washington Post,* declared that with this decision the "specter of condemnation (of property by various government entities under Eminent Domain) hangs over all property. Nothing is to prevent the State from replacing any Motel 6 with a Ritz-Carlton, any home with a shopping mall, or any farm with a factory."

She is correct. Americans are now all less secure.