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July 13, 2005

Local Government’s Nuclear Option – Part 1

Kevin E. Dayhoff

I have heard it said that no property, money or individuals’ rights are safe when the Democrat-controlled Maryland General Assembly is in session. After June 23, 2005, perhaps we can expand that to say: or when the U.S. Supreme Court is in session.

The Supreme Court recently pulled out the real nuclear option in Washington – eminent domain (or the Latin phrase, which sounds like the words of a pathologist: “dominum eminens.” It really means: if the government likes your house, it now belongs to the government.

Most any news magazine or newspaper will provide you with a blow-by-blow account of “Kelo vs. New London.” What I was interested in was how did we get into this mess. In three parts, I will share with you the ‘Readers Digest, large print version’ of my research. If you thought that the ownership of your property is sacred, read on.

Eminent domain is the government’s power to take private property for public use. Through eminent domain, states and the federal government may obtain land to provide for public improvements like parks, post offices, and roads. The actual use of eminent domain is more often than not a bit controversial. Just in time to be celebrated over the Fourth of July, on June 23, 2005, the Supreme Court announced its decision on the eminent domain case: “Kelo vs. New London, CT.” That 5-4 decision stated that local government could use eminent domain to take private property against a citizen’s will for use in private development.

Four justices – Sandra Day O'Connor, Antonin Scalia, Clarence Thomas and William Rehnquist – stood up for property rights. Justices John Paul Stevens, Anthony Kennedy, David Souter, Ruth Bader Ginsburg, and Stephen Breyer have determined that it is okay for the city council to vote to give your house to someone else because they have nicer plans for the property.

As we commemorate the 229th birthday of these United States, this decision is expected to have major ramifications for redevelopment and property rights cases around the country. In “Kelo,” what the court really said is that your friendly local City Hall, acting through a private and unelected development commission, could seize your property, settle on compensation later and turn your home and mine over to a private developer for a Starbucks (and an office complex, restaurants, shops and hotel).

As you read this, remember what President John Adams said: "The moment the idea is admitted into society that property is not as sacred as the laws of God... anarchy and tyranny commence. Property must be secured or liberty cannot exist."

I understand that the question facing the Court in “Kelo” was what protection does the Fifth Amendment's public use requirement provide for individuals whose property is being condemned, not to eliminate slums or blight, but for the sole purpose of "economic development," that will perhaps increase tax revenues and improve the local economy?

Stated another way, I think that George Will asked the question better in a piece, entitled “Despotism in New London,” in The Washington Post on September 19, 2004: “… Does the Constitution empower governments to seize a person's most precious property – a home, a business – and give it to more wealthy interests so that the government can reap, in taxes, ancillary benefits of that wealth?”

“Connecticut's court [said] 'yes,' which turns the Fifth Amendment from a protection of the individual against overbearing government into a license for government to coerce individuals on behalf of society's strongest interests. Henceforth, what home or business will be safe from grasping governments pursuing their own convenience?"

Justice O'Connor got it right in her bitter dissent when she wrote: "Today the Court abandons this long-held, basic limitation on government power. Under the banner of economic development, all private property is now vulnerable to being taken and transferred to another private owner ... who will use it in a way that the legislature deems more beneficial to the public in the process."

I’d like for you to right now go into your kitchen. Imagine it as a Starbucks. Might as well get used to the idea. After all, that linoleum floor is getting a little old and blighted. Make yourself a cup of latte and settle in with me for three parts as we explore this thing called eminent domain.

We’ll discuss the history of eminent domain; the expansion of eminent domain into the modern day concept of highest and best use economic development takings; a brief introduction to the Kelo decision for context and where we go from here. Oh, you say you don’t have the time? The subject is too dry? It won’t take you long. And the house you save, may be your own.

And, oh, did you know that the words “eminent domain” appear nowhere in the U.S. Constitution. The Fifth Amendment states: [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.”

I’ll bet that we can all agree that individuals should not stand in the way of the greater good.

A recent PBS article I read put it better than I could: “Early uses of eminent domain were primarily for public works – large-scale projects such as the utilities of the Tennessee Valley Authority or the grand highway schemes of the years after World War II. In 1954, the Supreme Court ruled in Berman v. Parker that private projects meet the definition if they have a ‘public purpose.’ Under this logic structure, the court approved a slum-clearance plan of the government of Washington, D.C. In the latter half of the 20th Century the process was used to clear "blighted" areas of American cities for redevelopment – with projects such as the Baltimore waterfront standing as “successful” eminent domain stories.”

In part two, we’ll explore the pre-constitutional origins of eminent domain. Meanwhile, enjoy the use of your kitchen while you can.

Kevin Dayhoff writes from Westminster. E-mail him at:

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