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June 23, 2005
We're From The Government -- We're Here To Move You

The Supreme Court has ruled that cities can seize property under eminent domain, even if that property has been put to productive use and maintained properly, for commercial as well as public use as long as one can stretch an argument about "public use" to its breaking point. In a 5-4 decision, SCOTUS upheld the confiscation of private homes in New London, CT, so that the city could build a new facility for Pfizer Labs:

In a 5-4 decision, the court upheld the ability of New London, Conn., to seize people's homes to make way for an office, residential and retail complex supporting a new $300 million research facility of the Pfizer pharmaceutical company. The city had argued that the project served a public use within the meaning of the Takings Clause of the Fifth Amendment to the Constitution because it would increase tax revenues, create jobs and improve the local economy.

A group of homeowners in New London's Fort Trumbull area had fought the city's attempt to impose eminent domain, arguing that their property could be seized only to serve a clear public use such as building roads or schools or to eliminate blight. The homeowners, some of whom had lived in their house for decades, also argued that the public would benefit from the proposed project only if it turned out to be successful, making the "public use" requirement subject to the eventual performance of the private business venture.

The Fifth Amendment also requires "just compensation" for the owners, but that was not an issue in the case decided today because the homeowners did not want to give up their property at any price.

Unsurprisingly, Justice John Paul Stevens wrote for the majority that they had deferred to legislative action in this case, a position with which Kennedy, Souter, Ginsburg, and Breyer agreed. However, the other four justices argued -- correctly, in my opinion -- that eminent domain should not be used to transfer property from one private owner to another. The power of the government should not overrule the private marketplace unless the land goes for a specific public -- i.e., not private -- use. Not surprisingly, the court relied on a 1954 Warren Court decision which broadened the term "public use" to include blighted areas that required public funds for urban renewal.

This does a tremendous injustice to the property owners of New London and everywhere in the United States. This puts the entire notion of property rights into jeopardy. Now cities can literally force people off their land in order to simply increase their tax base, which is all that New London accomplished in this smelly manuever.

I recall the words of Mark Twain, who famously lost a copyright case involving a bootleg publication of one of his novels despite having the law clearly on his side. (Unfortunately, I cannot find the reference -- perhaps a CQ reader can locate it.) Upon his loss, he remarked that since the judge was so cavalier with Twain's property, Twain planned to offer the Judge's house up for sale -- and if he got a good enough offer, he might let the buyer take the contents as well.

Can anyone come up with a good use for Justice Stevens' house? A bowling alley or a Bennigans, anything that improves the tax base for his community? We could urge its confiscation under eminent domain and perhaps put in a Mark Twain Museum instead. Now that would be justice.

UPDATE II: CQ reader bRight and Early found the Twain reference here. And because I could only dream of even approaching Twain's gift for prose, here's the original from the master himself:

It does look as if Massachusetts were in a fair way to embarrass me with kindnesses this year. In the first place, a Massachusetts judge has just decided in open court that a Boston publisher may sell, not only his own property in a free and unfettered way, but also may as freely sell property which does not belong to him but to me; property which he has not bought and which I have not sold. Under this ruling I am now advertising that judge's homestead for sale, and, if I make a good a sum out of it as I expect, I shall go on and sell out the rest of his property.

Brilliant, of course. The entire letter, in fact, is a masterpiece of sarcasm from one of America's most accomplished practitioners of the art.

Sphere It Digg! View blog reactions
Posted by Ed Morrissey at June 23, 2005 12:45 PM

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