Thursday, June 23, 2005
Bad Court!
The High Court gets it wrong in this case, in my opinion. Just in case no one's been watching this case (it is a constitutional case, so I have somewhat), here's what it's about. The State has the right, under the 5th Amendment's 'Eminent Domain' policy to 'take' private land for the use of the State. Up to this point, this has been used againt private property only when the State intends to build a road or something similar for the benefit of the public good (the process? The State 'condemns' the piece of property, pays the owners and takes over). Now, the Government can take private property for shopping malls? At stake in this case was the development of some people's private property (on which were their homes) for the use of a hotel! Great - so the State gets more taxes from that than from the homeowners - does that make it right? The majority of the Court (with Stevens writing the opinion) says that what is at stake is the local government's rights (to oversee these projects without court supervision or a court looking over its shoulder to say whether the project is important enough to take private property). I just think the Court is plain wrong. Here are the constitutional ramifications of this decision: up to this point (as previously noted), the concept of eminent domain, in the Fifth Amendment, was fairly narrowly construed. This greatly increase the rights of the Government as against private citizens when it comes to this policy - now the government can decide that it needs private property in order to put in a convenience store! O'Connor delivers a stinging dissent with the dire prediction that everyone is going to lose their homes (I don't know about that, although we might be moving farther to a socialist state). She was joined by Scalia, Thomas, and Rehnquist - the so-called 'conservative' section of the Bench. Ok, I guess private citizens are now expected to 'take one for the team' so that the State can get more tax revenue.
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There is no such thing as private property in these United States anymore. I wrote this last week in anticipation of this outcome. It's aimed at an Arizona audience, but the principles are the same.
Eminent Domain Abuse: Second Coming of the Feudal Lords
Scott Markowitz
Any first year law student can tell you that ownership of property includes the rights to possess, use, and exclude others from that property. This is one of the fundamental tenets of American law. This has always been subject to the power of the government to take that property for public use, after paying a fair price, through eminent domain.
Until recently, public use meant just that - a use that benefits the entire public. The Framers of the Constitution understood it to mean things like roads, bridges, prisons, hospitals, utilities easements, and other things in which we could all potentially share. That understanding was expanded about fifty years ago a case from Washington, DC to include ridding an area of blight as its own public use. They never would have imagined it being used to take property away from one citizen simply to give it to another for strictly private use. Yet, that is exactly what is happening in cities around the country.
The city government in New London, Connecticut decided that because it could get higher taxes from nicer houses and hotels and office buildings than the existing homes and businesses that it was entitled to forcibly remove longtime residents from their homes (including one woman who had lived in the same house since she was born in 1918) in order to get those taxes. In its recent decision in Kelo v. City of New London, the Supreme Court approved of this action.
What does this mean for the average person? It means that we have returned to feudal times, in which none of us actually own our homes or businesses. We merely lease them from the local lords, who can remove us whenever they think they can extract higher rent (or taxes, in this case) from someone else. Since the higher revenues gleaned from putting land to its "highest and best use" can be used to enhance public services, anything that fills the government?s coffers counts as a public benefit.
If I decide that I like your house - the one that your family has lived in since statehood - and offer the city more in property taxes than you currently pay, the city would be empowered to take it from you and give it to me. My payment of higher taxes, according to the Court, constitutes a sufficient public use to justify this theft. No longer do I have to negotiate a price with you - I just have to meet this ridiculous "public benefit" burden.
This doesn't just apply to people's homes. Several people in New London lost their jobs when the city took the land where the businesses where they worked were located. So no person with a home or a job is safe from money-seeking government.
That piece of land with a view you saved up for and you plan to build on when you retire? The hotel I want to build would produce more money, especially if the land is currently vacant. It's mine if I can convince the government to take it from you.
The small business you've run for the last forty years giving aerial tours of the Grand Canyon? It's mine if I convince the government that I would pay more than you in taxes since I'd use newer, nicer planes. It is irrelevant whether or not my business actually would produce more in taxes - it matters only whether I can convince the government that it might.
No property is safe. Any home could be replaced by any business, since businesses produce more in taxes. Small homes could be replaced with larger homes, small businesses with larger ones. And of course, churches would be at the bottom of the ladder since they pay no taxes whatsoever.
There is no logical end to the powers of government to take property under the public benefit rule, regardless of the protestations of the Court and well-intentioned planners. Unfortunately that means there is also no beginning to our rights as property owners. We own nothing, but merely possess it at the sufferance of the feudal lords.
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