Eminent domain case hardly a Trail of Tears: Manchester (CT) Journal Inquirer, 7/5/05

By Chris Powell

Just how far do individual property rights in land go? Connecticut's latest legal controversy was also its first. For the state's aboriginal inhabitants had no conception of individual property rights in land, and so were rudely surprised when the goods they accepted from the European settlers were construed not as simple reciprocations of hospitality but as bills of sale, terminating the rights of the original occupants to the land they had long lived on.

Now the occupants of New London's Fort Trumbull neighborhood are almost as rudely surprised by the U.S. Supreme Court's 5-to-4 approval of the termination of their property rights by the city's power of eminent domain. Indeed, the Fort Trumbull residents and property-rights absolutists across America wail that the court's decision in the case of Kelo v. New London has destroyed property rights everywhere in the name of redevelopment.

Although the New London decision may be closer to the Indian view of property - collective rather than individual ownership of land - than anything since Georgia "redeveloped" the Cherokees into Oklahoma, it's really not likely to change much.

For in holding that the power of eminent domain, recognized in the Fifth Amendment of the U.S. Constitution, can be invoked for economic development, rather than just for a public-owned facility, such as a road, parking lot, school, dam or airport, the Supreme Court only reaffirmed earlier decisions. And the high court left state courts free to interpret their own state-constitutional provisions on eminent domain and left states and municipalities free to decide whether to use eminent domain for economic development.

Further, as the Supreme Court's majority noted, if government's taking property was not to be judged in itself a "public use" - but, rather, was to be judged according to the degree of future public use of the property - the courts would be forever deciding which were good uses and bad uses: decisions of policy, and thus best left to the elected agencies of government.

Besides, a determined government might easily get around a more restrictive interpretation of the Fifth Amendment - the interpretation that the Fort Trumbull property owners sought - by first putting seized property to the simplest of traditional public uses (such as a parking lot) for a few years before moving on to use it for economic development.

In fact, even within a more restrictive reading of "public use" (a road, parking lot, school, dam, airport), individual ownership of property in land has never been absolute in the United States.

Since the country's oldest tax may be the property tax, U.S. citizens have never really owned property in land as much as they have rented it from the government. Those who fail to pay their tax are foreclosed upon. Of course the government also claims royalties for any wealth that is removed from the land - oil, gas, minerals, water. Absolutism in property rights in land is less a characteristic of democracy than of feudal states with hereditary privileges.

Yes, there will always be both good and bad economic-development plans: plans with more benefit to the public and plans with more benefit to special interests, such as politically influential developers.

But that is true of everything in government; there is policy that benefits the many and policy that benefits the few. Yet when bad policy is made by the elected agencies of government, democracy can do something about it. When bad policy is made by courts, which are usually unelected, doing something about it can be virtually impossible.

That's why the Supreme Court's decision in the New London case is the last word only in federal constitutional law; it is not necessarily the last word in the city or state. For the Fort Trumbull property owners may still appeal to the City Council and the Connecticut General Assembly.

Besides, in New London the complaint about developers is phony, for the Fort Trumbull property owners would not be the least assuaged if the city were doing the construction work and planning to own the hotel, conference center, housing, and offices it envisions for the land at issue. Government has long used private companies to accomplish its ends.

As much as the property owners may be entitled to sympathy, New London is entitled to more. It is a struggling city of 26,000 with the second-smallest area of Connecticut's 169 municipalities. The average Connecticut municipality has 33 square miles, but New London has only 5½ - most of it built up and much of it rundown.

Yet because of its location, at the mouth of the Thames River, the city has enormous potential. If that potential could be realized, the city might again become prosperous. But because the city is already so built up, this cannot be achieved without changing some property arrangements, without making higher uses of property - and, yes, without some of what is called gentrification.

Paying seven families fair compensation for their property - compensation determined by a court, if they wish; compensation they can spend to acquire other property in the city - isn't going to put anyone out on a new Trail of Tears.

Journal Inquirer: www.journalinquirer.com