Posted on Fri, Jun. 24, 2005
High court sticks it to the little guy
BY STEVEN GREENHUT
The Orange County Register
(KRT) - When the leader of the city of New London, Conn.,'s development corporation was asked about her role in driving middle-class residents out of their well-kept homes to make way for condos, a hotel and upscale shopping, she made a chilling declaration. "Anything that's working in our great nation is working because somebody left skin on the sidewalk," she said, according to the Institute for Justice, which challenged that redevelopment plan in the U.S. Supreme Court.
Well, the nation's high court on Thursday, in a rebuttal to views of the nation's founders, declared that any property owner anywhere in America can be called on by government to leave their skin on the sidewalk. The good of the individual must yield to the good of the community, as defined by government officials. That's now the law of the land, and expect its impact to be felt widely.
In Kelo v. the City of New London, the Supreme Court ruled 5-4 that eminent domain - the power to take property by force, upon "just" compensation to the owner - was justified for almost any reason. The Fifth Amendment allows it only for public uses, i.e., which has long been interpreted to mean major public uses such as a highway or dam, but the majority overruled that "outdated" notion. They cited a case stating that the "court long ago rejected any literal requirement that condemned property be put into use for the general public."
I keep forgetting that the Constitution is a living and breathing document, so its words don't really mean what they seem to mean. Justice John Paul Stevens, writing for the majority, has a far more "enlightened" vision of the Fifth Amendment than the one held by the founders. It's OK to take property by force and give it to a private developer as long as the city created a "carefully considered" development.
"In addition to creating jobs, generating tax revenue, and helping to `build momentum for the revitalization of downtown New London,' ... the plan was also designed to make the city more attractive and to create leisure and recreational opportunities on the waterfront and in the park," Stevens wrote.
This means government officials, who are driven by their own agendas of increasing tax revenue and overseeing the "right" developments in their city, can trump traditional notions of property rights.
We've seen thousands of instances of abuse in recent years. In Orange County, Calif., the city of Cypress invoked eminent domain against a church so that it could transfer the prime property to Costco. Although the plan failed, the city's reasoning was straightforward: Church members would have to lose their skin so the city would gain increased tax revenue from a big-box store. In Garden Grove, Calif., the city tried to force out an entire neighborhood of well-kept suburban homes - it was stopped after protests - to make way for a theme park. In Lakewood, Ohio, the city tried to use eminent domain to clear away a historic lakefront neighborhood so that it could build upscale condos.
Expect to see more of these attempts nationwide, although state courts and legislatures can still offer protection for property owners.
The irony is liberals claim to speak for the downtrodden and conservatives supposedly stick up for the big developers. Yet the liberals on the court - John Paul Stevens, Stephen Breyer, Ruth Bader Ginsburg and David Souter - and the middle-of-the-road Anthony Kennedy have endorsed a world in which the little guy must always yield to the politically powerful. The conservatives - Clarence Thomas, Antonin Scalia, William Rehnquist and Sandra Day O'Connor - stood up for the little guy.
Justice O'Connor captured the essence of the problem with the ruling in her eloquently written dissent:
"Today the court abandons this long-held basic limitation on government power. Under the banner of economic development, all private property is now vulnerable to being taken and transferred to another private owner, so long as it might be upgraded. ... The beneficiaries are likely to be those citizens with disproportionate influence and power in the political process, including large corporations."
In a world without property rights, the powerful rule and the little guy gets to leave his skin on the sidewalk. Welcome to that world.
ABOUT THE WRITER
Steven Greenhut is senior editorial writer and columnist for the Orange County Register in Santa Ana, Calif. He is author of the book "Abuse of Power: How the Government Misuses Eminent Domain.")