One day, it may be your home

Susette Kelo's home or unchecked eminent domain: which is the greater threat?

I was going to write today about the flag-burning amendment that recently passed in the house. A fair number on the left are up in arms about the possibility of a constitutional ban on flag-burning, seeing such a thing as a trampling of First-Amendment rights of expression.

This is not an unsound argument; but while critics of this measure are gnashing their teeth and rending their garments at the mere possibility of an amendment, the Supreme Court has gone ahead and given its blessing to a far more expansive reading of the government's right to seize your property.

The relevant case is Kelo et al v. City of New London, 04-108. Several homeowners in a working-class neighborhood in New London, CT, were notified that the city was seizing their homes for public use. This, of course, is not new in itself: the doctrine of "eminent domain" has been on the books for quite some time, allowing governments to take private property (provided appropriate compensation was given) in order to build schools, roads, etc. Indeed (and this, of course, is the reason the case found its way to the Supreme Court), it is enshrined in the "takings clause" of the Fifth Amendment:

No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.

The problem is that, over the years, municipal governments have begun interpreting "public use" in much broader ways. It has been used, for example, to combat urban decay by allowing cities to seize "blighted" properties and redevelop them. All of this sounds like a good idea until you realize that, in the Kelo case, the city government 1) seized an unblighted residential neighborhood, 2) reselling the land to developers who 3) plan to build a hotel, health club, and office complex. In short, New London took homes away from their legal owners in order to give the land to private developers who might offer a larger tax base. Hell, according to the majority opinion, the city doesn't even have to prove anything--just have a plan in place:

"The city has carefully formulated an economic development that it believes will provide appreciable benefits to the community, including — but by no means limited to — new jobs and increased tax revenue..."

I have not yet been able to locate a copy of the opinion, but I'm eager to, because the clip's I've read from Justice O'Connor's dissent rings very true with me:

Justice Sandra Day O'Connor, who has been a key swing vote on many cases before the court, issued a stinging dissent. She argued that cities should not have unlimited authority to uproot families, even if they are provided compensation, simply to accommodate wealthy developers.

The lower courts had been divided on the issue, with many allowing a taking only if it eliminates blight.

"Any property may now be taken for the benefit of another private party, but the fallout from this decision will not be random," O'Connor wrote. "The beneficiaries are likely to be those citizens with disproportionate influence and power in the political process, including large corporations and development firms."

I am often on the side of business, I am often on the side of government. But most fundamentally, I am on the side of private property and equitable markets. This action--and, sadly, many others like it around the country--is so far from "public use" as to be laughable, yet the Supreme Court is willing to interpret the concept so broadly as to render it almost meaningless. If this constitutes "public use," tell me, pray, what doesn't?

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UPDATE: The decision and opinions may be found here (hat tip to The Commons Blog). And while it's not up to the rhetorical standards of, say, a Scalia dissent, O'Connor's has its moments:

In moving away from our decisions sanctioning the condemnation of harmful property use, the 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, maybe even aesthetic pleasure. But nearly any lawful use of real private property can be said to generate some incidental benefit to the public. Thus, if predicted (or even guaranteed) positive side-effects are enough to render transfer from one private party to another constitutional, then the words “for public use” do not realistically exclude any takings, and thus do not exert any constraint on the eminent domain power...If legislative prognostications about the secondary public benefits of a new use can legitimate a taking, there is nothing in the Court’s rule or in Justice Kennedy’s gloss on that rule to prohibit property transfers generated with less care, that are less comprehensive, that happen to result from less elaborate process, whose only projected advantage is the incidence of higher taxes, or that hope to transform an already prosperous city into an even more prosperous one.