Baronger's Scribblings

Tuesday, February 22, 2005

Eminent Domain - Now playing at SCOTUS

Now on the docket of the Supreme Court is case 04-108, known as Susette Kelo v. City of New London. This is a case involving eminent domain. For the record I am on the side of the petitioner. The City of New London condemned the Kelo's property in order to turn the property over to a development company. The Pacific Legal Foundation recently filed a friend of the court brief in support of Susette, in the hope of reversing the abuses that started with the Poletown decision. I'm hoping that this case will put an end to the abuses of eminent domain. Local governments are turning into tyrannies, where the rich and powerful pressure governments to rob from the poor and give to the rich.

Here are some of the arguments found in the PLF's friend of the court brief with commentary.

No. 04-108
In the
Supreme Court of the United States


On Writ of Certiorari to
The Supreme Court of the State of Connecticut


This is the standard heading, which is always useful to know. The PLF is an organization dedicated to reversing the abuses of eminent domain, and restore the constitutional rights of citizens to be secure in their property. It is one thing to take land for public use, if it will be for a greater public good. It is quite another for government to take someone's land, and give it to someone else who is more politically connected. This is not rule of law but the ancient rule of might, which the constitution is supposed to protect us against.
The Fifth Amendment, as incorporated to the states, limits
the power of eminent domain to “public use[s].” The State of
Connecticut condemned private property to transfer to private
developers who use it for their own profit. Do the economic
results of this transfer constitute a “public use”?

This is the central question that is being presented in the brief. In order for the state to transfer the property they had to condemn the property. It used to be that only property that was dilapidated, rundown and unfit for inhabitation could be condemned. Now it seems that condemn basically means that you aren't paying enough taxes and someone else who will pay more should have the land. Public use is further corrupted, to mean anything that will increase the tax base. The protections that the citizentry once enjoyed are now gone, as the Fifth amendment is being interpreted so broadly, that it is essentially meaningless. According to Professor Bainbridge, this basically means we might as well roll up the bill of rights and throw it away.
Good fences make good neighbors, and one of the
strongest legal “fences” in the Constitution is the public use
clause. It prohibits citizens from using the power of eminent
domain to take their neighbors’ land for their own private


Economists call this phenomenon “rent seeking”: private
parties try to gain control of the eminent domain power and use
it for their own advantage. Rent-seeking behavior is
economically wasteful, damages the rule of law, and seriously
undermines private property rights.

I like the good fences argument. A fence in this case delineates where one persons property rights begin and another's end. Yet now powerful private interests are using their influence with government to rob people of their private property. Instead of competing for land in the free market, businesses instead pressure local governments to condemn and foreclose on private property. The power of the state is brought to bear upon property owners, who cannot defend themselves against the government/big business combine.
Robert Frost famously said that “good fences make good
neighbors.” Robert Frost, Mending Wall (1949), reprinted in
Robert Frost: Collected Poems, Prose, and Plays 39
(R. Poirier & M. Richardson eds. 1995). The phrase means that
respect for each other’s privacy and individuality reinforces the
sense of goodwill that makes for a healthy community.

Here the brief begins it's arguments, about what the harm this current state of affairs is doing to society. This is also the classic, "every man's home is his castle" argument. If someone can't be secure in the knowledge that his property can't be seized at will by the government, economic development and society are harmed. Why would anyone develop a business or fix up and care for his land, if the government could swoop in at any minute and steal it. All it takes is for someone with cronies in the local government, to force you off your land. If someone richer and more connected then you covets your nice little house, then you can say goodbye to your comfortable bed. You will be sent off homeless, with only a token payment, that does not reflect the true value of your life's hopes and dreams.
Thomas Jefferson noted that in America,
[e]very one, by his property, or by his satisfactory
situation, is interested in the support of law and
order. And such men may safely and advantageously
reserve to themselves a wholesome controul over
their public affairs, and a degree of freedom, which
in the hands of the [mob-rule] of the cities of
Europe, would be instantly perverted to the
demolition and destruction of everything public and

Letter to John Adams (Oct. 28, 1813), in The Adams-Jefferson
Letters 391 (L. Cappon ed. 1959).

Even one of our founding father's was concerned about the power of eminent domain. The right to own and maintain property was seen as a key to democracy. Destroy property rights and the very foundation of the nation are destroyed.
Eminent domain abuse puts the private property of citizens
at the mercy of each other’s whim, thus perpetually disturbing
the tranquility of society. Thomas Hobbes warned that in the
state of nature, “there [can] be no propriety, no dominion, no
mine and thine distinct; but only that to be every man’s, that he
can get: and for so long, as he can keep it.” Thomas Hobbes,
Leviathan 101 (M. Oakeshott ed., 1962) (1651). But the
framers of the Constitution specifically rejected the Hobbsian

Thomas Jefferson and the other founders, rejected the notion of Hobbes Leviathan. This is what the professor was referring too in his essay on the subject. Without the protection of government, nobody will build anything. It is easier to destroy then it is to create. In the Hobbsian world your property cannot be protected, and your life's work is easily destroyed. This creates a disincentive to create and in your own small way to improve society. Government in Jefferson's world view was supposed to protect the common man from the Leviathan, now government has become the Leviathan. The Leviathan rolls over for the rich, for it is the attack dog of the powerful. Do we want to live in a world of, "might is right?"
The “public use” clause sets up a legal “fence,” which
makes good neighbors by ensuring that their relationships are
based on mutual respect for each other’s property rights.
Property rights are essential to domestic tranquility, not only
because they ensure personal liberty and a strong economy, but
because they protect personal happiness and the public mores
of democratic society. Equating public use with public benefit
has torn down that fence, and subjected people’s homes,
businesses, and land to a process in which they have very little
voice compared to the influence of powerful interest groups.
Democratic participation becomes, not a rite of citizenship for
which people volunteer, but a struggle for the very survival of
their homes, their businesses, and their families. The “public
choice effect” is responsible for this, and only by restoring the public use clause as a meaningful limit on the power of eminent
domain, can these effects be averted.
The judgment of the Connecticut Supreme Court should
be reversed.
DATED: December, 2004.

This argument by the Pacific Legal Foundation is compelling. I only hope that the Supreme Court overturns the lower court decisions. The fifth amendment was destroyed with the Poletown decision of the Michigan Supreme court. Recently the Michigan supreme court saw the errors of it's ways and reversed itself. I can only hope that SCOTUS does the right thing. Government needs to resume it's roll of protecting the minority and powerless from the ravages of the Leviathan. Property owners need the aegis of the fifth amendment restored, and the leviathan muzzled.

UPDATE: The professor has more on the "moral outrage", that the modern interpretation of eminent domain power has become. I'm right there with him. I still couldn't believe it when a row of businesses were condemend to increase the revenue of a local mall.

Links: Volokh, Knight-Ridder



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