Or, maybe the punctuation is wrong. Perhaps the headline should read 'Your
home is your castle?
In other words, don't get too comfortable in that recliner in front of
the big screen TV while the kids whoop it up on the swing set in the back yard.
Why? The right of the government - federal, state, and local (even the
school board) to evoke a right called Eminent Domain.
Eminent domain (it would be nice to abbreviate this as ED, but, gosh, Bob Dole
has made that almost impossible) is nothing new. It is guaranteed by the (Correction
) Fifth Amendment to the U.S. Constitution (The Bill of Rights) and has made possible the building of
highways, dams, schools, and other crucial public works projects across the
country for over two hundred years. Basically, eminent domain is the right of
the government to take private property (after providing fair and equitable
compensation) for the public good.
Imagine if you will, the Interstate Highway System looking like a slalom course
as it crosses the country, weaving in and between the homes and farms belonging
to people who refused to sell their property to make way for the bulldozers.
Countless farmers, businesspersons, homeowners, sometimes entire towns, have
been forced to leave property behind so that massive projects such as the Quabin
Reservoir in Massachusetts or the Glen Canyon Dam in Utah/Arizona could be constructed.
Some of these projects are easier to justify than others, and there will always
be critics who say that the off ramp or the elementary school should have been
put in a different location ' perhaps where public lands already existed
or landowners were willing to sell. Still, for over a hundred years, these takings
by Eminent Domain were for public works projects and could at least stake a
claim to serving the common good.
Then, in 1954, in Berman v. Parker, the Supreme Court ruled that cities can
apply eminent domain to raze crime-ridden or decrepit areas for private purposes,
making way for what became known as urban renewal.
Apparently, well under the radar, or at least unnoticed by the mainstream media,
this ruling has slowly morphed into what local municipalities now consider a
right to condemn private property in order to turn it over to other
private ownership for development.
- In Ogden, Utah the City Council wants to replace an older 'blighted'
neighborhood containing 34 homes and eight businesses with a Wal-Mart.
- San Bernardino, California successfully evicted homeowners and a motel to
build a new shopping center.
- Riviera Beach, Florida has developed a plan to condemn 1,700 homes and apartments.
While the city is probably years away from acting, these plans have substantial
impact on homeowners' ability to sell or desire to improve their properties.
According to The Institute for Justice as quoted by the Associated Press, there
have been over 10,000 cases where private property was either threatened by
condemnation or actually condemned by government for private use. (A second
source quotes this figure for the time period 1998 to 2001.)
This all came into the spotlight earlier this week when the Supreme Court heard
the case of Susette Kelo v. City of New London and New London Development Corporation.
In this case, the City of New London, Connecticut, has condemned a stable, working
class neighborhood near the Thames River to allow a private developer to build
a glossy new office and residential complex. The development is intended primarily
for use by Pfizer, the pharmaceutical mega-company, but will also house a hotel,
river walk and a marina. By all accounts, the existing neighborhood was not
blighted (much of it has already been leveled); it is occupied by middle-class
homeowners who love their homes and maintain them. New London has justified
the taking because the new project would, conceivably, provide more taxes and
more jobs which it views as critical to the economy and future of a depressed
New England town. The city plans to give the developers a 99 year lease on the
property for one dollar a year.
Under eminent domain, the government generally notifies owners that a property
is being considered for a public use and, after surveys and appraisals, makes
an offer for that property. If the owner does not consider the price to be fair,
or if he simply does not wish to give up his home or business at that, or maybe
any, price, the government can then take the land. The owner is usually free
to negotiate for a higher price for the property prior to the actual taking.
But, under most rules, only after actual condemnation can the owner contest
the price in court. Such court challenges are often well beyond the financial
and emotional capabilities of those being displaced. Homeowners in New London
freely admit that they would have been unable to fight eviction had it not been
for the support of The Institute for Justice which has headed the Supreme Court
In the New London case specifically, but in many of the takings currently being
protested throughout the country, the courts must feel like King Solomon trying
to decide custody of the baby. Should the property rights of a few homeowners
(seven in New London) outweigh the economic benefits that might accrue to an
entire community? Should the economic interests (and profits) of Wal-Mart or
a commercial developer be traded for the often more emotional interests of less
affluent land owners who were, after all, there first?
In oral arguments before the Supreme Court on Monday, both attorneys and Justices
showed the ambiguities that must be addressed by any decision. Even Scott Bullock,
a senior lawyer with the Institute of Justice conceded, under questioning from
Justice David Souter, that it could be a legitimate public purpose for a city
to use tax money to buy up property for economic growth, but, in his view, only
when people want to sell. Justice Souter than asked if there could not be a
similarly legitimate public purpose in requiring people to sell. Bullock then
retreated to a position that, perhaps government could force a sale for such
purposes in certain cases, but only where the taking is certain to generate
Justice Sandra Day O'Connor asked New London representatives whether
there should be any limits on government power in eminent domain proceedings.
An attorney for the City said that the power of the people to vote representatives
out of office constituted such a limit.
Aside from the issues raised in the New London case, there are others that
may not be quite so obvious.
- Should government be allowed to designate entire neighborhoods for 'renewal'
years ahead of any intention of acting? Property owners within such areas
are placed in limbo for years, often unable to sell property, possibly even
refinance it, because of a looming threat of condemnation
- Does the earlier Supreme Court ruling that 'blighted' neighborhoods
are fair game discriminate against the elderly and the poor, those most likely
to live in such areas?
- Should property owners be able to avail themselves of court protection at
an earlier time than after condemnation has actually occurred? Might there
be a mediation process established above the level of the government agency
doing the taking that can level the playing field for property owners?
The New London case has stirred the pot. There have dozens of public protests
this week in areas with ongoing eminent domain controversies, so perhaps this
issue will, at long last, get the public airing it deserves.
Meanwhile, don't get too comfortable in that recliner.
Thanks to former U.S. History teacher Thomas Manion for catching a flub in our article last week on Eminent Domain.
Government bases its right to take property on (and the property owner's rights are protected by) by the Fifth Amendment to the U.S. Constitution (The Bill of Rights), not Article V of the Constitution itself as we stated.
The Fifth Amendment reads, in part:
"...nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation."