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July 5, 2005 – June 27, 2005, will likely go down in U. S. history as the
day when the American People lost one of the unalienable rights bestowed upon
us by our Founding Fathers. For to our detriment, it was on that fateful day
that the Supreme Court of the United States expanded its interpretation of a
major tenet of the Fifth Amendment to the Constitution.
Eminent domain is defined by my Webster’s Dictionary as “the power of the
state to take private property for public use with payment of compensation to
the owner”. This is granted by the Fifth Amendment. Prior to last Monday,
this power was relatively sparingly utilized by various local, state and
federal governments.
When a property was condemned under eminent domain, it was typically done
to acquire land along the right of way for building a railroad or roadway,
supplying water, or for the construction of a government facility such as a
post office or a prison. Additionally, urban renewal and the destruction and
replacement of slums with low cost housing, was effected by various
governments working in conjunction with private enterprises. In all of these
earlier limited instances, from the founding of our nation, each eminent
domain “taking” was done to benefit some direct need of the American People
at large.
Unfortunately, the recently handed down Supreme Court ruling has expanded
the Fifth Amendment’s scope. Never before did a private entity directly benefit
from the “taking” of the property of others through eminent domain. This
ruling sets the stage for abuse. It has the potential to harm a yet unnamed
number of ordinary citizens to primarily increase government tax revenues,
and for the benefit of a few private enterprises and individuals.
The Supreme Court’s finding was the final decision in the case of Kelo vs.
New London, Connecticut. The city of New London desired to condemn a number
of well-maintained residences along its waterfront, and transfer their title
to a private company. The sixteen homes were to be torn to the ground. In
there place was to be built a series of buildings including a hotel,
condominiums, and office space. The Supreme Court for the first time found
that this eminent domain transfer to a private entity fit within the meaning
of the Fifth Amendment.
Justice John Paul Stevens wrote the opinion for the majority of Justices.
His vote in favor was joined by Justices Anthony Kennedy, David H. Souter,
Ruth Bader Ginsburg and Stephen G. Breyer. The dissenters were Justices
Sandra Day O’Connor, Antonin Scalia, Clarence Thomas and Chief Justice
William H. Rehnquist. In rendering the opinion of the majority of Justices,
Stevens stated in part that “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
revenues”. He went on to state that, “...To effectuate this plan, the city
has invoked a state statute that specifically authorizes the use of eminent
domain to promote economic development. Because this plan unquestionably
serves a public purpose, the takings challenged here satisfy the public use
requirement of the Fifth Amendment”.
The future of countless Americans will now be exposed to suffering in the
name of “serving a public purpose” in a potential myriad of new fashions.
This, while simultaneously enhancing the wealth of some private enterprises
and individuals.
The day after the decision was handed down I turned first to the New York
Times for additional information. Surprisingly, although the Times’ front
page listed what they called major Supreme Court decisions on the “Ten
Commandments”, “File Sharing”, “Revealing Sources” and “Domestic Violence”,
and devoted substantial first page space to three of them, not a single word
discussed Kelo vs. New London. This was surprising because the New York Times
doesn’t normally devote extended coverage to Supreme Court decisions. Yet, in
my opinion, they omitted any mention of the most important ruling while
highlighting others of lesser merit.
Later that week a local newspaper, the Atlanticville, ran the headline,
“High Court Ruling A Blow To Residents”. The Atlanticville described the
potential ramifications to a number of local residents who were involved in a
similar case. Their three-block neighborhood on Marine Terrace, Ocean
Terrace, and Seaview Avenue in Long Branch, NJ, was involved in a similar
eminent domain lawsuit. If they lose the case, which is now likely due to the
Supreme Court’s decision, the 36 property owners will be forced to sell and
vacate their homes. Their dwellings will then be “razed and replaced by
upscale townhouses and condominiums.” Upon learning of the Court’s decision a
local resident stated “It is a decision that invites corruption. It puts more
power into the affluent and politically connected”.
There are numerous other similar cases pending across the nation that will
be affected by this high court decision! And, there are will likely be
countless more to follow.
When Eminent Domain was earlier utilized the compensation for those who
lost their property was often at below market prices. The offer was typically
presented by the governing body involved. Frequently, the affected
individuals could not afford proper legal representation and thus were forced
to take whatever was offered. Others, who had sufficient capital to protect
themselves, at least could fight for their just compensation. This situation
will not likely change in the future, and those who do not have adequate
funds to protect their rights may suffer similar fates. As is often the case,
those who will be the most damaged have the least ability to defend
themselves.
Tragically, this decision opens the door for many people to be legally
forced from their homes. They now stand to suffer financially whenever
government officials determine that the “public good” will be better served
if their property is transferred into the hands of others.
Sandra Day O’Connor wrote the Court’s dissenting opinion. In part she
stated that, “Any property may now be taken for the benefit of another
private party, but the fallout from this decision will not be random. The
beneficiaries are likely to be those citizens with disproportionate influence
and power in the political process, including large corporations and
development firms”.
One has to wonder if Ms. O’Connor’s surprise announcement a few short days
later, of her retirement from the Supreme Court after 24 years on the bench,
was not motivated by the direction that this decision is destined to take the
country. From her own words she must have been deeply disturbed by this
decision. For with it, the United States eliminated the ability of the
average American to protect him or herself while it sanctioned another group
of “citizens with disproportionate influence and power in the political
process” to take their property away from them.
It is impossible to foretell how this unprecedented interpretation of the
Fifth Amendment will affect all of us. However, it is likely that as time
passes eminent domain will become more widely utilized to displace honest,
law-abiding Americans from their homes and property.
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