Opinion/Commentary on Kelo vs. New London

Cato Scholars Condemn Property Rights Decision

In the landmark Takings Clause case, Kelo v. City of New London, the Supreme Court ruled today, 5-4, that the government has the right to condemn private property and transfer titles to others simply to encourage economic development and a larger tax base. "With today's decision, no one's property is safe," said Roger Pilon, director of Cato's Center for Constitutional Studies, "since any time a government official thinks someone else can make better use of your property than you're doing, he can order it condemned and transferred. Today's decision, the third loss for property owners this term, together with other recent decisions from this Court, marks this as 'The Government's Court,'" Pilon added. This decision comes as a blow to homeowners and small business people who have been robbed of their property by usually large and powerful interests in league with government officials....

I Own It... No You Don't

I own a 2-bedroom, 1,500 sq-ft house.

No you don't. Because someone wants to put a 5-bedroom, 4,000 sq-ft house on your lot. It will bring in more property taxes.

I own a 5-bedroom, 4,000 sq-ft house.

No you don't. Because a local BBQ-purveyor wants to turn your lot into a restaurant, which will turn a profit and produce more taxes than your home.

I own a successful BBQ restaurant.

No you don't. Because a huge chain restaurant wants to turn your BBQ pit into a burger joint that turns more profit than your little spit can.

I own a busy chain restaurant franchise.

No you don't. Because a developer wants to build a hotel there with more profit, higher property taxes, and more employees....

Meet the people who owned the property

Susette Kelo dreamed of owning a home that looked out over the water. She purchased and lovingly restored her little pink house where the Thames River meets the Long Island Sound in 1997, and has enjoyed the great view from its windows ever since. The Dery family, down the street from Susette, has lived in Fort Trumbull since 1895; Matt Dery and his family live next door to his mother and father, whose parents purchased their house when William McKinley was president. The richness and vibrancy of this neighborhood reflects the American ideal of community and the dream of homeownership. Tragically, the City of New London is turning that dream into a nightmare. In 1998, pharmaceutical giant Pfizer built a plant next to Fort Trumbull and the City determined that someone else could make better use of the land than the Fort Trumbull residents. The City handed over its power of eminent domain—the ability to take private property for public use—to the New London Development Corporation (NLDC), a private body, to take the entire neighborhood for private development. As the Fort Trumbull neighbors found out, when private entities wield government’s awesome power of eminent domain and can justify taking property with the nebulous claim of “economic development,” all homeowners are in trouble....

Property Rights Devastated by Supreme Court Ruling

The U.S. Supreme Court today dealt a blow to property rights in a split decision that will hurt homeowners and small business owners across the country. “The Supreme Court has said that local governments can seize private land if government and business interests think they know best how the land should be used,” said Hans Bader, legal counsel for the Competitive Enterprise Institute. “The Court’s decision contradicts the language and intent of the Fifth Amendment,” said Bader. “The Constitution says you can’t take private property except for ‘public use.’ But when government seizes land and hands it over to business interests to jack up tax revenue, the public isn’t ‘using’ the land. “Government can always claim a ‘public purpose,’ but that’s not the same as ‘public use,’” said Bader....

On June 24, 2005, the Supreme Court put a big UP FOR GRABS sign on your home.

The Court said it’s perfectly OK, under the U.S. Constitution, to take your home or business and give it to a politically connected private developer because that developer might be able to produce more taxes and more jobs off of your land. In the face of this disgraceful decision upholding takings for private development, it might seem like the fight is over. Nothing could be further from the truth. We have been overwhelmed by emails and phone calls from citizens who are shocked and outraged by what the Supreme Court has done. We have learned that individual citizens CAN make a difference. We have seen dozens of proposals for eminent domain go down in flames because of popular opposition. We’ve seen cities and states change their laws in response to the outrage of their citizens. Right now, there is a tremendous momentum against this abuse of power, and we ask each of you to begin organizing to change the law in your city or county or state. The Castle Coalition will help you write the language, but now is the time to start organizing your friends and neighbors. Your local government will tell you there’s nothing to worry about, that it would never use eminent domain, or that it's only as a “last resort.” Don’t believe a word of it....

The Supreme Court's reverse Robin Hoods

The Supreme Court's "liberal" wing has a reputation in some circles as a guardian of the little guy and a protector of civil liberties. That deserves reconsideration in light of yesterday's decision in Kelo v. City of New London. The Court's four liberals (Justices Stevens, Breyer, Souter and Ginsburg) combined with the protean Anthony Kennedy to rule that local governments have more or less unlimited authority to seize homes and businesses. No one disputes that this power of "eminent domain" makes sense in limited circumstances; the Constitution's Fifth Amendment explicitly provides for it. But the plain reading of that Amendment's "takings clause" also appears to require that eminent domain be invoked only when land is required for genuine "public use" such as roads. It further requires that the government pay owners "just compensation" in such cases. The founding fathers added this clause to the Fifth Amendment--which also guarantees "due process" and protects against double jeopardy and self-incrimination--because they understood that there could be no meaningful liberty in a country where the fruits of one's labor are subject to arbitrary government seizure. That protection was immensely diminished by yesterday's 5-4 decision, which effectively erased the requirement that eminent domain be invoked for "public use."....

Damaging ‘deference’

The question answered yesterday was: Can government profit by seizing the property of people of modest means and giving it to wealthy people who can pay more taxes than can be extracted from the original owners? The court answered yes. The Fifth Amendment says, among other things, "nor shall private property be taken for public use, without just compensation" (emphasis added). All state constitutions echo the Constitution's Framers by stipulating that takings must be for "public use." The Framers, who weighed their words, clearly intended the adjective "public" to circumscribe government's power: Government should take private property only to create things — roads, bridges, parks, public buildings — directly owned or primarily used by the general public. Fighting eviction from homes one of them had lived in all her life, the New London owners appealed to Connecticut's Supreme Court, which ruled 4 to 3 against them. Yesterday they lost again. The U.S. Supreme Court issued a 5 to 4 ruling that drains the phrase "public use" of its clearly intended function of denying to government an untrammeled power to dispossess individuals of their most precious property: their homes and businesses. During oral arguments in February, Justice Antonin Scalia distilled the essence of New London's brazen claim: "You can take from A and give to B if B pays more taxes?" Yesterday the court said that the modifier "public" in the phrase "public use" does not modify government power at all. That is the logic of the opinion written by Justice John Paul Stevens and joined by justices Anthony Kennedy, David Souter, Ruth Bader Ginsburg and Stephen Breyer....

Supreme Court Ruling on Seizure of Private Property Highly Disturbing

Today, Americans for Tax Reform (ATR) voiced their disappointment with the Supreme Court’s decision in the Kelo v. New London, which ruled against a group of homeowners in Connecticut. In a 5-4 decision, the high court ruled against the property owners of a town in Connecticut, affirming the local government’s ability to seize private property for private development. “The Supreme Court has misrepresented the importance of the Fifth Amendment, which entitles just compensation to take land for clear public use, such as roads or schools,” said Grover Norquist, President of Americans for Tax Reform. “The Fifth Amendment is not intended as the means for increased tax revenue from private enterprises at the expense of an individual’s property rights.” Justice Sandra Day O’Connor wrote the dissenting opinion for the court, arguing against the unconstrained authority of government to displace families and small businesses in order to accommodate developers. “The specter of condemnation hangs over all property,” stated the Justice in her opinion. She was joined by Chief Justice William H. Rehnquist and Justices Scalia and Thomas....

They Can't Take That Away From Me... Unless They Can

The government's takings power is a necessary evil that, if used broadly, can destroy the entire concept of private property rights. As Russell Kirk pointed out, doing so will have devastating affects on society: "[F]reedom and property are closely linked. Separate property from private possession, and Leviathan becomes master of all. Upon the foundation of private property, great civilizations are built. The more widespread is the possession of private property, the more stable and productive is a commonwealth." (Link) The Kelo case is a particularly egregious example of how the takings power can be abused. The Supreme Court has held that private property can be seized via eminent domain as part of an urban renewal project when the property is blighted, a loophole that local authorities have greatly abused to seize private property. Yet, in this case, the government didn't even bother trying to hide behind that fig leaf. They baldly asserted the power to seize private homes because they think some other user can put them to a higher tax generating use...This is no minor technical dispute. Kirk's dicta is confirmed by the brilliant work Richard Epstein did in his classic book Takings, which makes a compelling case that the power to take private property is the critical and central power of government that must be constrained if liberty is to have any substance....

DC Mayor To Bulldoze Ruth Bader Ginsberg's House For Homeless Shelter

In an immediate municipal action based upon the just-released ruling by the United States Supreme Court, DC Mayor Anthony Williams has announced that Justice Ruth Bader Ginsberg "needs to start packing" as the city's plans for a suburban homeless shelter have finally been vetted. Ginsberg was one of five justices who ruled that city governments may seize private property in the name of furthering beneficial municipal programs. "We are allowing time for Ms. Ginsberg to dismantle her Bill Clinton altar, as well as her mannequal tributes to Ruth Buzzi," said Williams. Ginsberg said she will "respect her own ruling" despite the fact that "I do not agree with it anymore."....

And finally, from National Review Online's The Corner: The quickest way to reverse Kelo is to find some conservative town in Utah somewhere to shut down an abortion clinic in order to make room for a Wal-Mart.

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