The Beginning of the Great Land Grab
by Dr. Richard S. Appel
July 05/05
June 27, 2005, will likely go down in U. S. history as the day when the American People lost one of the unalienable rights bestowed upon us by our Founding Fathers. For to our detriment, it was on that fateful day that the Supreme Court of the United States expanded its interpretation of a major tenet of the Fifth Amendment to the Constitution.
Eminent domain is defined by my Webster’s Dictionary as “the power of the state to take private property for public use with payment of compensation to the owner”. This is granted by the Fifth Amendment. Prior to last Monday, this power was relatively sparingly utilized.by various local, state and federal governments.
When a property was condemned under eminent domain, it was typically done to acquire land along the right of way for building a railroad or roadway, supplying water, or for the construction of a government facility such as a post office or a prison. Additionally, urban renewal and the destruction and replacement of slums with low cost housing, was effected by various governments working in conjunction with private enterprises. In all of these earlier limited instances, from the founding of our nation, each eminent domain “taking” was done to benefit some direct need of the American People at large.
Unfortunately, the recently handed down Supreme Court ruling has expanded the Fifth Amendment’s scope. Never before did a private entity directly benefit from the “taking” of the property of others through eminent domain. This ruling sets the stage for abuse. It has the potential to harm a yet unnamed number of ordinary citizens to primarily increase government tax revenues, and for the benefit of a few private enterprises and individuals.
The Supreme Court’s finding was the final decision in the case of Kelo vs. New London, Connecticut. The city of New London desired to condemn a number of well-maintained residences along its waterfront, and transfer their title to a private company. The sixteen homes were to be torn to the ground. In there place was to be built a series of buildings including a hotel, condominiums, and office space. The Supreme Court for the first time found that this eminent domain transfer to a private entity fit within the meaning of the Fifth Amendment.
Justice John Paul Stevens wrote the opinion for the majority of Justices.
His vote in favor was joined by Justices Anthony Kennedy, David H. Souter,
Ruth Bader Ginsburg and Stephen G. Breyer. The dissenters were Justices
Sandra Day O’Connor, Antonin Scalia, Clarence Thomas and Chief Justice
William H. Rehnquist. In rendering the opinion of the majority of Justices,
Stevens stated in part that “The city has carefully formulated an
economic development plan that it believes will provide appreciable benefits
to the community, including – but by no means limited to –new
jobs and increased tax revenues”. He went on to state that, “...To
effectuate this plan, the city has invoked a state statute that specifically
authorizes the use of eminent domain to promote economic development.
Because this plan unquestionably serves a public purpose, the takings
challenged here satisfy the public use requirement of the Fifth Amendment”.
The future of countless Americans will now be exposed to suffering in
the name of “serving a public purpose” in a potential myriad
of new fashions. This, while simultaneously enhancing the wealth of some
private enterprises and individuals.
The day after the decision was handed down I turned first to the New York
Times for additional information. Surprisingly, although the Times’
front page listed what they called major Supreme Court decisions on the
“Ten Commandments”, “File Sharing”, “Revealing
Sources” and “Domestic Violence”, and devoted substantial
first page space to three of them, not a single word discussed Kelo vs.
New London. This was surprising because the New York Times doesn’t
normally devote extended coverage to Supreme Court decisions. Yet, in
my opinion, they omitted any mention of the most important ruling while
highlighting others of lesser merit.
Later that week a local newspaper, the Atlanticville, ran the headline,
“High Court Ruling A Blow To Residents”. The Atlanticville
described the potential ramifications to a number of local residents who
were involved in a similar case. Their three-block neighborhood on Marine
Terrace, Ocean Terrace, and Seaview Avenue in Long Branch, NJ, was involved
in a similar eminent domain lawsuit. If they lose the case, which is now
likely due to the Supreme Court’s decision, the 36 property owners
will be forced to sell and vacate their homes. Their dwellings will then
be “razed and replaced by upscale townhouses and condominiums.”
Upon learning of the Court’s decision a local resident stated “It
is a decision that invites corruption. It puts more power into the affluent
and politically connected”.
There are numerous other similar cases pending across the nation that
will be affected by this high court decision! And, there are will likely
be countless more to follow.
When Eminent Domain was earlier utilized the compensation for those who
lost their property was often at below market prices. The offer was typically
presented by the governing body involved. Frequently, the affected individuals
could not afford proper legal representation and thus were forced to take
whatever was offered. Others, who had sufficient capital to protect themselves,
at least could fight for their just compensation. This situation will
not likely change in the future, and those who do not have adequate funds
to protect their rights may suffer similar fates. As is often the case,
those who will be the most damaged have the least ability to defend themselves.
Tragically, this decision opens the door for many people to be legally
forced from their homes. They now stand to suffer financially whenever
government officials determine that the “public good” will
be better served if their property is transferred into the hands of others.
Sandra Day O’Connor wrote the Court’s dissenting opinion.
In part she stated that, “Any property may now be taken for the
benefit of another private party, but the fallout from this decision will
not be random. The beneficiaries are likely to be those citizens with
disproportionate influence and power in the political process, including
large corporations and development firms”.
One has to wonder if Ms. O’Connor’s surprise announcement
a few short days later, of her retirement from the Supreme Court after
24 years on the bench, was not motivated by the direction that this decision
is destined to take the country. From her own words she must have been
deeply disturbed by this decision. For with it, the United States eliminated
the ability of the average American to protect him or herself while it
sanctioned another group of “citizens with disproportionate influence
and power in the political process” to take their property away
from them.
It is impossible to foretell how this unprecedented interpretation of
the Fifth Amendment will affect all of us. However, it is likely that
as time passes eminent domain will become more widely utilized to displace
honest, law-abiding Americans from their homes and property.
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