Who would have thought it possible? Throughout history it's been a favorite tool of thuggish despots like Robert Mugabe of Zimbabwe. But not in the good, old USA.
“No person shall be … deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.” — Amendment V of the U.S. Constitution.
In an all-out, reared-back, head butt to American property rights, the U.S. Supreme Court ruled 5-4 in June that local government can force property owners to sell out to other private owners. Previously such eminent domain determinations were made only for “public-use” projects like roads and bridges, or land for schools and parks.
With this ruling, “public use” has been broadened to give local government the wink to redistribute private property — with compensation — if the government decides it's a good deal for — well, itself.
In Kelo et al v. City of New London, the city of New London, CT, condemned 15 private properties — in a non-blighted area — for private waterfront development. Officials said new ownership would provide more jobs and tax revenue for the community, thus constituting a public use.
News of the verdict was lost amid the din of the first native case of BSE in the U.S. Compared to BSE, however, the Supreme Court ruling probably is much more erosive on the fabric of agricultural life and livelihood because it decimates one of U.S. citizenship's biggest strengths — the right to one's private property.
Using the court's logic, it would seem theoretically anything could be twisted into being of benefit to “the public.” So watch out if you're not using your property the way local government — or its friends — would like.
Associate Justice Sandra Day O'Connor, who recently announced her retirement from the land's highest bench, voted in the minority. She summed up the situation succinctly in her dissenting opinion:
“For who among us can say she already makes the most productive or attractive possible use of her property? The specter of condemnation hangs over all property. Nothing is to prevent the state from replacing any Motel 6 with a Ritz-Carleton, any home with a shopping mall, or any farm with a factory.
“…The beneficiaries are likely to be those citizens with disproportionate influence and power in the political process, including large corporations,” she added.
The 5-4 decision broke along ideological lines. Justices generally thought of as conservative — Clarence Thomas, Antonin Scalia and Chief Justice William Rehnquist — voted with O'Connor in the minority. Liberal-leaning Justices John Paul Stevens, Stephen Breyer, Ruth Bader Ginsburg and David Souter, along with moderate Anthony Kennedy, made up the majority.
More than just the poor should be unnerved by this verdict. After all, there are few private holdings that couldn't be improved to sweeten their “revenue value” for government.
For almost 200 years, the guarantee of property rights was the fulcrum on which American achievement has been hoisted. It was the guarantee that convinced citizens it was worthwhile to risk their hard-won dollars investing in property — and its improvement — in the hope they could better their lot in life.
Geographically, it's a long way from the U.S. to the African nation of Zimbabwe. Philosophically, however, we've just moved one step closer.