The public 'use' and private wrongs of eminent domain: Universal Press Syndicate, 2/27/05


By James Kilpatrick

The Supreme Court heard argument last week in the most significant case it will hear this term. The case is Kelo vs. City of New London. By the time the court's term ends in June, we may have a better picture of what has become of the concept of private property in the United States.

The facts are brutally simple: Susette Kelo owns her modest home in New London, Conn. She wants to keep it. The city of New London wants to take it away from her. Mind you, there is not the slightest vestige of an iota of a scintilla of evidence that the affected area is a slum.

Under the city's plan, her house and a dozen other private homes would be demolished. The cleared land then would be leased for private development. If the city wins, and everything goes according to plan, the developers will make a potful, the city will tax the enhanced real estate, and Mrs. Kelo will be out on the street.

In case you arrived late for this exercise in despotic democracy, New London is invoking its power of eminent domain. The power is embedded in the Fifth Amendment to the Constitution. It permits government to acquire private property for public use upon payment of just compensation. The power is an indispensable tool of civil government. It lets us build public streets and public highways, public schools and public libraries, public parks and public capitols.

The key words in all this are "public use." The Constitution does not authorize New London to take private property for public "benefit" or public "convenience" or for some inchoate public "purpose."

For a century and a half the two words were precisely construed. Then came the landmark case of Berman vs. Parker in 1954, perfectly exemplifying the maxim that bad cases make bad law. Here the Supreme Court unanimously approved the public condemnation and private redevelopment of a rancid slum in Washington, D.C.

Justice William O. Douglas flew into flights of eloquence: "Miserable and disreputable housing conditions may do more than spread disease and crime and immorality. They may also suffocate the spirit by reducing the people who live there to the status of cattle. They may indeed make living an almost insufferable burden. They may also be an ugly sore, a blight on the community which robs it of charm, which makes it a place from which men turn. The misery of housing may despoil a community as an open sewer may ruin a river."

Once Douglas was wound up, there was no stopping him. A legislative body, he decreed, may consider values that are "spiritual as well as physical, aesthetic as well as monetary." It is within the legislative power "to determine that a community should be beautiful as well as healthy, spacious as well as clean, well-balanced as well as carefully patrolled."

Then came the conclusion that struck some commentators, including this one, as indefensible:

"Property of course may be taken for redevelopment which, standing by itself, is innocuous and unoffending. Nothing in the Fifth Amendment stands in the way."

Thus began the crooked trail that led to last Monday's oral argument before the Supreme Court. The Berman case concocted a piece of semantic legerdemain. Presto! "Public use" became "public purpose." A constitutional dam was fatally breached. Little by little, in thousands of cases across the country, courts have authorized seizures under the power of eminent domain.

Whatever may have been the slum-clearing merits of the Berman opinion of 1954, these have been offset by the subsequent erosion of property rights as old as Magna Carta. Every schoolboy knows the story. In 1215, a band of barons gathered at Runnymede. There they laid down an enduring principle of human rights: A peasant's humble home is his castle. Mrs. Kelo's innocuous and unoffending little home in New London is her castle. Those barons met on a meadow overlooking the Thames River of England. By nice coincidence, the Kelo house overlooks the Thames River of Connecticut. A good omen.

James J. Kilpatrick: kilpatjj@aol.com