Eminent Domain Becomes All-Powerful Domain

I've never seen this many folks who I correspond with get this interested in a Supreme Court decision -- the Lord of Truth and K Mac almost sent the thing to me at the same time. Of course, my immediate thought was to wonder who slipped crack into Justice Kennedy's drinking water...

The Supreme Court today effectively expanded the right of local governments to seize private property under eminent domain, ruling that people's homes and businesses -- even those not considered blighted -- can be taken against their will for private development if the seizure serves a broadly defined "public use."

In a 5-4 decision, the court upheld the ability of New London, Conn., to seize people's homes to make way for an office, residential and retail complex supporting a new $300 million research facility of the Pfizer pharmaceutical company. The city had argued that the project served a public use within the meaning of the Takings Clause of the Fifth Amendment to the Constitution because it would increase tax revenues, create jobs and improve the local economy.

A group of homeowners in New London's Fort Trumbull area had fought the city's attempt to impose eminent domain, arguing that their property could be seized only to serve a clear public use such as building roads or schools or to eliminate blight. The homeowners, some of whom had lived in their house for decades, also argued that the public would benefit from the proposed project only if it turned out to be successful, making the "public use" requirement subject to the eventual performance of the private business venture.

The Fifth Amendment also requires "just compensation" for the owners, but that was not an issue in the case decided today because the homeowners did not want to give up their property at any price.

Writing for the majority, Justice John Paul Stevens said the case turned on the question of whether New London's development plan served a "public purpose." He added, "Without exception, our cases have defined that concept broadly, reflecting our longstanding policy of deference to legislative judgments in this field."

The majority endorsed the view that local governments are better placed than federal courts to decide whether development projects serve a public purpose and will benefit the community, justifying the acquisition of land through eminent domain. In his opinion, Stevens wrote that "for more than a century," the high court has favored "affording legislatures broad latitude in determining what public needs justify the use of the takings power."

New London officials "were not confronted with the need to remove blight in the Fort Trumbull area, but their determination that the area was sufficiently distressed to justify a program of economic rejuvenation is entitled to our deference," Stevens wrote. "The City has carefully formulated an economic development plan that it believes will provide appreciable benefits to the community, including--but by no means limited to--new jobs and increased tax revenue."

Stevens added that "because that plan unquestionably serves a public purpose, the takings challenged here satisfy the public use requirement of the Fifth Amendment."
He was joined in that view by justices Anthony Kennedy, David H. Souter, Ruth Bader Ginsburg and Stephen G. Breyer.

Dissenting were justices Sandra Day O'Connor, Antonin Scalia and Clarence Thomas, as well as Chief Justice William H. Rehnquist.

In a strongly worded dissenting opinion, O'Connor wrote that the majority's decision overturns a long-held principle that eminent domain cannot be used simply to transfer property from one private owner to another.

"Today the Court abandons this long-held, basic limitation on government power," she wrote. "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 -- i.e., given to an owner who will use it in a way that the legislature deems more beneficial to the public -- in the process."

Thomas' dissent was even better, at least in terms of the law. But getting back to basics... soon-to-be-sometime contributor The Southern Partisan notes...

Just when I thought big brother could get no bigger? Eminient domain now extends to takings for private development? Disgusting.

Of course the best part of this is that Stevens appears to have cited the judicial abstention doctrine---i.e., local governments know better than federal courts what is best for the local community. Well Dah, but that was not the issue here. I believe the issue here was whether any government's seizure of homes for private development, even with "just compensation," violates the fifth amendment of the Federal Constitution. Maybe Stevens just got this case confused with the TX sodomy case--and what he really meant to say was that the state of TX knows best how to protect the health and welfare of its citizenry.

Well, no one accused the Supremes of being consistent. Instapundit's got a great range of reaction. Politically, this is Bush's ticket to hammer the liberal justices and get a conservative on the Court, but legally, this decision is an abomination. As policy, it's even worse. Professor Bainbridge called it a moral outrage, and he's right. Jim Geraghty nails it nicely as well...

This is a huge political opportunity to the figure, Republican or Democrat, who grasps its power to homeowners (or even renters who want to own a home someday) and who leads the fight to overturn this, by Constitutional amendment if necessary.

Look, there's a reason the founding fathers put this in the Constitution. If I lose my house or property to a road or dam or some other project, it stinks, but there's at least a somewhat compelling case to be made that the new project benefits the entire public. Under this new interpretation, the new project doesn't necessarily benefit the public; it benefits the local government by paying higher taxes.

Your land is now up for auction by the local government, for sale to the entity willing to generate the most tax revenue.

I think I may be currently residing in a country (Turkey) that has better protections in this area than my home. What the hell happened back there?

Donald Sensing thinks churches are at risk. And Ed Morrisey at CQ has a great response...

I recall the words of Mark Twain, who famously lost a copyright case involving a bootleg publication of one of his novels despite having the law clearly on his side. (Unfortunately, I cannot find the reference -- perhaps a CQ reader can locate it.) Upon his loss, he remarked that since the judge was so cavalier with Twain's property, Twain planned to offer the Judge's house up for sale -- and if he got a good enough offer, he might let the buyer take the contents as well.

Can anyone come up with a good use for Justice Stevens' house? A bowling alley or a Bennigans, anything that improves the tax base for his community? We could urge its confiscation under eminent domain and perhaps put in a Mark Twain Museum instead. Now that would be justice.

Personally, I vote for a Hooters on Justice Stevens' land. Every community can use another Hooters.