Abusing eminent domainThe Boston Globe, 9/30/04

By Jeff Jacoby, Globe Columnist
THE FINAL passage in the Fifth Amendment is short and to the point: "Nor shall private property be taken for public use without just compensation." Like the rest of the Bill of Rights, that provision was intended by its authors to keep Americans free by shielding them from unbridled government force.

The power of eminent domain is an ancient attribute of sovereignty, but the Constitution restricts it in two crucial ways: (1) The government can take private property only when it is necessary for a "public use," and (2) the owner must be paid "just compensation."

Governments and property owners wrangle all the time over how much compensation is "just." But the meaning of "public use" is clear, isn't it? The state can take private property to make way for roads, post offices, prisons -- assets that will be owned and used by the public. That is what the Constitution's framers meant by "public use," and it is doubtless what most Americans think it should mean. Anything more, the Supreme Court warned more than 200 years ago, would be tyrannical.

"The despotic power . . . of taking private property when state necessity requires, exists in every government," the court acknowledged in the 1795 case of Vanhorn's Lessee v. Dorrance. But the state must not exercise that power "except in urgent cases." The justices could not imagine a situation "in which the necessity of a state can be of such a nature as to authorize or excuse the seizing of landed property belonging to one citizen, and giving it to another citizen."

Alas, what the Supreme Court in the 18th century found unthinkable, the Supreme Court of the 20th century made lawful.

In Berman v. Parker, a 1954 case, the court permitted eminent domain to be deployed for purposes of what was then called "urban renewal." It allowed property to be seized from private owners in an inner-city slum and sold to new owners for redevelopment. "Public use," it held, encompassed "public purpose" -- and when the government's purpose was to revive a poverty-stricken, rat-infested neighborhood, property owners could be forced to yield.

But Berman's narrow exception soon became an open floodgate of eminent-domain abuse. Cities and states, eager for new development, began pronouncing neighborhoods blighted when they were simply working-class. Some went further, stretching the meaning of "public use" beyond "public purpose" into mere "public benefit." They condemned and seized private property on the grounds that another owner could use it to make more money, create more jobs, or generate more business -- all leading to more taxes, the supposed public benefit.

In case after case, owners have lost their homes or businesses to politically wired companies that convinced local officials to take it for them through eminent domain. In Topeka, Kansas, owners were forced off their property so that Target could build a huge distribution center. In Nevada, the Las Vegas Redevelopment Authority condemned Carol Pappas's commercial building so that a group of casinos could put up a parking garage. In Norwood, Ohio, five owners are being stripped of their property so a real-estate mogul can develop a $125 million office-retail complex.

These examples are drawn from scores compiled by the Institute for Justice, the public interest law firm that has become a leading champion of property owners threatened by abusive eminent domain.

Three years ago I wrote about the institute's efforts in New London, Conn., where city officials, in concert with the pharmaceutical giant Pfizer, were aggressively using eminent domain to clear a vast swath of land along the Thames River. Their goal was to replace the homes and shops in the Fort Trumbull neighborhood with more profitable development: a hotel, a conference center, a marina. The Institute for Justice got involved on behalf of Susette Kelo, Matt Dery, and a handful of other residents who didn't think they should have to give up their homes just so Pfizer could enjoy a new hotel and New London could collect more taxes.

In 2001 the case was just going to trial; last March the Connecticut Supreme Court ruled in favor of New London's right to turn residents out of their homes for the sake of economic development. But Kelo, Dery, and the other Fort Trumbull homeowners aren't giving up, and neither is the Institute for Justice. This week the US Supreme Court agreed to take the case -- the first of its kind since Berman was decided 50 years ago.

That 1954 ruling weakened the very foundation of our liberty: the right to own and lawfully enjoy property. The reckless deployment of eminent domain -- the use of force to dispossess property owners -- is nothing less than an assault on the American Dream. The Supreme Court can end that assault by restoring to the Fifth Amendment's words -- "public use" -- the straightforward meaning they were always meant to have.

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Jeff Jacoby: jacoby@globe.com