Strict Construction Required when It Comes to Eminent Domain — Universal Press Syndicate, 10/14/04

James J. Kilpatrick

Two weeks ago, the Supreme Court agreed to hear argument in the case of Kelo v. City of New London, Conn. The court's announcement stirred scarcely a ripple of interest in the press, which is odd, because this is a Big One. It reaches to the very heart of what constitutional law is all about.

The case involves two words in the Bill of Rights. Private property, says the Fifth Amendment, shall not be taken for "public use" without payment of just compensation. Here the city of New London proposes to seize the home of Susette Kelo and pay her the market value, then demolish it, and lease the land to a private developer for the next 99 years. The seizure promises no public use at all.

Ms. Kelo is the lead plaintiff in a suit challenging the city's power of eminent domain. Six other homeowners in the Fort Trumbull neighborhood of New London have joined in what promises to be a landmark case in the high court. The proceeding has nothing to do with slum clearance or the elimination of blight. It has everything to do with raking in some higher taxes on upscale development.

Among those who will be driven from their homes are Charles and Wilhelmina Dery. She was born in her Fort Trumbull home in 1918. She has lived there for her entire life. In the petitioners' brief they make their position clear:

"Petitioners have poured their labor and love into their homes. They are places where they have lived for years, have raised their families, and have grown old. Petitioners do not want money or damages. They merely seek to stop the use of eminent domain to take away their most sacred and important of possessions: their homes."

The case began four years ago, when the city adopted a development plan for 90 acres of land along the Thames River. To repeat: The area is not "blighted." It is not a "slum." All the homes and businesses have the usual amenities -- electric power, indoor plumbing, garbage collection. It is an old neighborhood, but as Daniel Webster said of Dartmouth College, "there are those who love it."

Ms. Kelo and her neighbors won a partial victory in the New London Superior Court. After a seven-day bench trial, the court ruled that the city had not demonstrated a necessity for the taking. On appeal to the Supreme Court of Connecticut, the homeowners lost 4-3, but the judgment against them was stayed for appeal to the U.S. Supreme Court (news - web sites).

This is the question: Is it lawful -- is it constitutionally permissible -- for a city to condemn unoffending private property for private business development? Some states say yes, some say no. The petitioners' counsel describe an inconsistent picture. Seven states allow such condemnations for purposes of tax revenue and job creation; these are Connecticut, Kansas, Maryland, Michigan, Minnesota, New York and North Dakota. Eight states forbid such abuse of eminent domain; these are Arkansas, Florida, Illinois, Kentucky, Maine, Montana, South Carolina and Washington. Supreme courts in three states -- Delaware, New Hampshire and Massachusetts -- have indicated an inclination to construe the key words public use strictly.

In their opinion last March in the New London case, four of the Connecticut judges defended "a flexible approach" to the term. In their view, "public use" may well mean public usefulness, utility or advantage, or what is productive of general benefit. "The power of eminent domain requires a degree of elasticity to be capable of meeting new conditions and improvements and the ever-increasing necessities of society."

Judge Peter T. Zarella, speaking for the three dissenters, asserted that there must be limits on the power of government to take private property "when the public purpose is private economic development." He agreed with the majority that the term "public use" defies absolute definition, but he was certain that courts must preserve "our nation's long-held commitment to protect private property from unnecessary takings."

My own thought, voiced in this column ad infinitum if not ad nauseam, is that the Constitution must allow plenty of wiggle room for changing times. A Constitution that speaks of armies and a navy can plausibly embrace an air force. But some terms, such as "public use," should be fixed. Wiggle them not!

Universal Press Syndicate: www.uexpress.com
James J Kilpatrick: kilpatjj@aol.com