Confiscating Property

Last week’s U.S. Supreme Court 5-4 ruling in Kelo v. New London helps explain the socialist attack on President Bush’s nominees to the federal bench. First, let’s look at the case.

The city government of New London, Conn., has run upon hard times, with residents leaving and its tax base eroding. Private developers offered to build a riverfront hotel, private offices and a health club in the Fort Trumbull neighborhood. But there was a bit of a problem. Owners of 15 homes in the stable middle-class Fort Trumbull neighborhood refused the city’s offer to buy their homes, but no sweat.

The city turned over its power of eminent domain — its ability to take private property for public use — to the New London Development Corporation, a private body, to take the entire neighborhood for private development. The city condemned the homeowners’ properties. The homeowners sued and lost in the state court, and last week they lost in the U.S. Supreme Court.

The framers of our Constitution gave us the Fifth Amendment in order to protect us from government property confiscation. The Amendment reads in part: “[N]or shall private property be taken for public use, without just compensation.” Which one of those 12 words is difficult to understand? The framers recognized there might be a need for government to acquire private property to build a road, bridge, dam or fort. That is a clear public use that requires just compensation, but is taking one person’s private property to make it available for another’s private use a public purpose? Justice John Paul Stevens says yes, arguing, “Promoting economic development is a traditional and long-accepted function of government.”

Justice Sandra Day O’Connor dissented, saying, “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 given to an owner who will use it in a way that the legislature deems more beneficial to the public.” She added that “the words ‘for public use’ do not realistically exclude any takings, and thus do not exert any constraint on the eminent domain power.” In other words, state and local officials can now take your home for another private person to use so long as they can manufacture an argument that the latter use is more beneficial to the public.

Let’s look at a few examples of how this might play out. You and your neighbor have two-acre lots. Your combined property tax is $10,000. A nursing home proprietor tells city officials that if they condemn your property and sell it to him to build a nursing home, the city would get $30,000 in property taxes. According to last week’s U.S. Supreme Court ruling, this plan would be construed as beneficial to the public, and you’d have no recourse. Similarly, an environmental group might descend on public officials to condemn your land and transfer it to the group for a wildlife preserve. Again, a contrived public benefit for which you’d have no recourse.

The Court’s decision helps explain the vicious attacks on any judicial nominees who might use framer-intent to interpret the U.S. Constitution. America’s socialists want more control over our lives, property and our pocketbooks. They cannot always get their way in the legislature, and the courts represent their only chance.

There is nothing complex about those 12 words the framers wrote to protect us from governmental property confiscation. You need a magician to reach the conclusion reached by the Court’s majority. I think the socialist attack on judicial nominees who’d use framer-intent in their interpretation of the Constitution might also explain their attack on our Second Amendment “right of the people to keep and bear Arms.” Why? Because when they come to take our property, they don’t want to risk buckshot in their butts.

Dr. Walter E. Williams is the John M. Olin Distinguished Professor of Economics at George Mason University. This column is is copyrighted and distributed by Creators Syndicate [ [email protected] 310-337-7003 ].