By Selwyn Duke
Possession may be nine-tenths of the law, but not when the law wants your possessions. This past Thursday was a dark day for freedom in America, as the Supreme Court once again proved that its contempt for the Constitution is only matched by its willingness to court communism. In a ruling that struck a blow for the powerful at the expense of the little guy, the Court ruled that states had the right to use the principle of eminent domain to seize private property for commercial development. In other words, if Donald Trump wants your land so he can erect another casino and knows which palms to grease, you can be kicked out of your home.
At issue was the case of Kelo vs. New London, involving hapless homeowners who have been forced to fight a city hall that wants to seize their land for the ostensibly noble purpose of “public use.” And what, pray tell, would this public use be? Answer: to pave the way for different private entities – in this case rich developers – to build a hotel, health club and office buildings. The city puppeteers’ supposed hope and definite justification are that the development will breathe new life into a local economy whose star fell with the decline of its once vibrant whaling industry.
The problems with this ruling are manifold, not the least of which is that it’s another example of the High Court’s [sometimes I wonder what its members are high on] delusion that the inanimate object called the Constitution can be viewed as a “living document.” After all, the Fifth Amendment does allow for the expropriation of private property for “public use” under the condition that just compensation is provided. However, I strongly suspect that the Framers were thinking about imperatives such as the need to build a fort in a strategic position overlooking a strait, just in case the British Navy decided to make sure that the sun never set on its empire. I tend to doubt, though, that they were overly concerned about modest churches standing in the way of the building of a brand spanking new Wal-Mart.
Most striking about this ruling, however, is that it constitutes a blurring of the line between the public and private sector, ergo my opening paragraph allusion to communism. After all, at issue here are not public projects such as fortifications, bridges or roads. We are now talking about labeling commercial development a “public use.” But what is “public” about a privately owned shopping mall, hotel, or restaurant? Well, not surprisingly, our leftist Supreme Court Justices have, while not the answer, an answer.
The left-wing majority on the court concluded that “public use” was to be defined more broadly as “public purpose.” The thinking is that if a proposed use of someone’s private property could present an economic benefit to the public, then the expropriation of that person’s property can be justified. Justice John Paul Stevens, writing for the majority, said that New London could seize the private property on the public use basis because the proposed project promises to create more jobs and revenue.
The Pandora’s box opened up by such a position should be obvious. I ask you, what legal business doesn’t create jobs and revenue? That’s what businesses do. Therefore, under this reasoning it follows that any commercial development proposal under the sun could serve as an eminent domain-enabled pretext to seize your property. Hey, even a hotdog stand produces more jobs and tax revenue than your home does.
This fact was not lost on Justice Sandra Day O’Connor. In what strikes me as a rare moment of lucidity, she wrote in her dissent,
“The specter of condemnation hangs over all property . . . nothing is to prevent the state from replacing any Motel 6 with a Ritz-Carlton, any home with a shopping mall, or any farm with a factory.”
I do concur. Moreover, what seems to have escaped everyone’s notice is that the leftist judges have broadened the definition of “public use” to a point where they’ve rendered the term meaningless. After all, if a “public use” can in reality be any use deemed beneficial to society by the powers that be, then the term has lost its raison d’etre.
Think about it: how is the specific term “public use,” as defined by the Court, distinguishable from the general term “use”? If the Founding Fathers had intended for any use from which society could conceivably derive a benefit to be adequate justification to seize property, why the specificity of "public use"? They could have said that property could be seized for the facilitation of “good works” or “for the betterment of society,” but they didn’t. No, they were specific because they wanted to severely limit the government’s power in this area. Respect for private property rights always figured prominently in their thinking.
Oblivious to this, the leftist majority seemed to echo the conclusions of the Michigan Supreme Court in its disastrous 1981 Poletown decision [a decision that court wisely reversed last year]. In this case, the court allowed General Motors to bulldoze a whole Polish-American neighborhood, one containing over one thousand residences, six hundred businesses and quite a number of churches, so that the corporation could construct an auto plant on the site. This had become the poster-case for eminent domain abuses, as one dissenting justice on that Court warned that,
“No homeowner's, merchant's, or manufacturer's property, however productive or valuable to its owner, is immune from condemnation for the benefit of other private interests that will put it to a ‘higher’ use.”
Absolutely correct, Your Honor. What folly, making government officials the arbiters of the hierarchy of uses and empowering them to discriminate between private parties based upon their nebulous conception of it. After all, what is a higher use? Would bulldozing six old-stone churches that tend to people’s spiritual needs be justified to make way for a shopping mall that exploits people’s material greed? Does man live on bread alone? Higher use indeed. Some uses can’t be measured in dollars and cents.
But the real danger here is not misjudging uses, but misusing power. While the following has become a cliché – and one I despise, mind you – all you have to do is follow the money. It doesn’t take desert mystic-like discernment to know that when eminent domain is used to foster “economic development,” it’s a euphemistic way of saying that we’re going to do a reverse-Robin Hood. Does anyone think it’s a coincidence that eminent domain isn’t used very often to obtain land for a house of worship or charitable organization, or to seize homes in upper crust neighborhoods? Justice O’Connor noted this as well in saying,
“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.”
She also said,
“The government now has license to transfer property from those with fewer resources to those with more. The Founders cannot have intended this perverse result.”
Without a doubt. Unscrupulous corporations love this misuse of eminent domain because they get the land they want at the price they want it. Moreover, complicit in this are greedy governments, which salivate over the prospect of filling their coffers to overflowing. And this really is the issue. Think about it: do you feel comfortable entrusting such power to politicians, a lot that is notorious for their willingness to commit malfeasance to pay back wealthy supporters and even, dare I say, for occasionally accepting bribes?
Whatever windfall is realized, by big business and opportunistic or even corrupt politicians, there’s one thing you can take to the bank: the beneficiaries won’t be the Americans who receive “just compensation” for their stolen land. After all, what is just compensation? Let’s say I own a home that’s been targeted for seizure and the bureaucrats decide that fair market value is $75,000. Now, that just might be the most I could sell it for if I put it on the block and searched for someone who wanted it as a residence. However, the fact that a rich corporation has determined that my land is ideal for its needs and that I have no desire to move changes the equation completely. You see, to entice me into selling, to make the bother of uprooting myself and my family worthwhile, the corporation might have to offer me half a million. This is how it works in a free market system.
This is no minor point, because no piece of land has a price tag affixed to it, courtesy of God. No, we’re talking about value that man assigns to it. Why is an acre in Beverly Hills worth far more than an acre in the South Bronx? Why is an acre in the hinterlands with an oil well on it now worth more than one with a water well on it, when five-hundred years ago the latter would have dwarfed the former’s value? Quite simply because people are willing to pay more for it at this point in time. Therefore, fair market value cannot be determined theoretically; it is simply what one gets when operating within the context of the free market. What this means is that when the government seizes my property in the above example, it has done nothing less than conspire with a corporation to steal $425,000 from me.
Chip Mellor, president of the Institute for Justice, said that this ruling sets a terrible precedent, and he’s correct. In the way that he means it anyway. But there’s another precedent here, one that was set decades ago, and this hearkens back to my remarks about communism and the blurring of the distinctions between the public and private. You see, I don’t believe that judges could ever conclude that the definition of the term “public use” could be expanded to include private sector endeavors unless the demarcation between public and private was not as clear in their minds as it should be. No, these are individuals who have, in some measure, melded the two together when formulating their world view. Ominously, their ruling is just one step in a progression that is leading to increasing government control over all things that now can only loosely be called “private.”
But it didn’t start with these unjust justices. No, the precedent was set a long time ago when the Court ruled that private establishments were “public accommodations” in a move designed to empower government to eliminate unfashionable discrimination. And while that may seem like a noble goal, it amounted to the trumping of business owners’ freedom of association, as Big Brother started dictating to them what policies must prevail within their establishments. So then we had the government telling private entities what kind of discrimination they could practice, and now we have the government discriminating as it picks and chooses which private entities are worthy of retaining “their” property, and which ones must yield to those whose purpose is “higher.” But both these government intrusions share a commonality: they both shift control over private property from the “owners” to the modern-day feudal lords in government.
This is why principle matters, folks. Not too many complained when the EEOC sued business after business for alleged discrimination, or when the nanny state foisted mandate after mandate upon them. But one thing leads to another. Compromise the principle of private property rights and you’ve created a slippery slope, one of whose steeper drop-offs is called eminent domain, and at whose terminus can be found the netherworld of tyranny.
