Wednesday, July 06, 2005

The Great Government Land Grab: The Case Of Kelo v. New London

(Before finishing this discussion of eminent domain, please re-read the first post in this series. It has been updated to reflect some case law that I neglected to mention. It does not change the gist of the argument, but rather adds additional contour to the discussion.)

Turning from the history of eminent domain in American jurisprudence and implications introduced by discussing property rights and personal rights, let us look at the most recent developments surrounding the June 23, 2005 decision of the Supreme Court in the case of Kelo v. New London.

First, some background on the situation that began this case on its way to the U.S. Supreme Court. The city of New London, CT, by the first years of the new century, was experiencing a considerable economic downturn, and the city council and local business community were looking for areas where expanded economic development could occur. In 1998, the pharmaceutical company Pfizer began to build a new research facility on the outskirts of the Fort Trumbull neighborhood in New London. Seeing an opportunity, the City of New London, through a private, city-controlled entity called the New London Development Corporation (NLDC), considered a re-development plan for the Fort Trumbull neighborhood to take advantage of new economic activity brought in by the Pfizer plant. This plan included a resort hotel, conference center, 80-100 new dwellings and other space for office, commercial and residential spaces. The plan was approved by the city council in 2000 and authorized the NLDC to acquire the land in the Fort Trumbull neighborhood.

Fort Trumbull itself is an older neighborhood consisting of ninety acres and 115 residential lots. Fifteen of the residents of the neighborhood refused to sell their land to the NLDC, among them Suzette Kelo who became the leading plaintiff in the case to come. The City of New London decided to use its powers of eminent domain in this situation; the order was issued to the NLDC to condemn the fifteen lots of the "holdouts" so that the development could proceed. It was at this point that Suzette Kelo and her fellow residents formed their case and took it first to the appellate level of the Supreme Court of Connecticut.

In this case, the owners and their attorneys from the Institute of Justice argued that the city had misused the power of eminent domain because the development proposed by the NLDC study was not clearly for public use. The Supreme Court of Connecticut decided on March 9, 2004 that the use of eminent domain for economic development did not violate the public use clause of the Fifth Amendment. The court found that if an economic development creates new jobs, increases tax revenue and revitalizes a depressed (not even blighted) area, then it qualifies as a public use. The court concluded by saying that the delegation of eminent domain power by the city to a private entity is permissable if the private entity is considered the agent and principal of the government.

Kelo and her fellow litigants decided to appeal this decision to the U.S. Supreme Court, which granted certiorari to consider the issues raised by this situation in the light of Berman v. Parker and Hawaii Housing Authority v. Midkiff. This case had, as mentioned before, had an additional twist in the fact that a private entity (the NLDC) was taking private property from individuals and giving it to another private entity (the land developers).

In preparing this case, an impressive number of amicus curiae briefs were filed for the plaintiff. These briefs were filed by such diverse organizations as the NAACP, AARP and Southern Christian Leadership Conference. These groups in particular argued that the eminent domain power is often used in poor and disadvantaged communities with high populations of elderly and minorities. The case was officially argued on February 22, 2005 in front of seven of the nine Supreme Court justices. Chief Justice William Rhenquist was recovering from an ongoing illness and John Paul Stevens was delayed in returning from Florida. They both read the briefs and participated in the later decision; the pleadings were overseen by Sandra Day O'Connor.

The court decided in favor of New London and against the plaintiffs on June 23, 2005. It was a 5-4 decision with the following breakdown of voting:
  • Majority opinion by John Paul Stevens, concurrance by Anthony Kennedy and joined by David Souter, Ruth Bader Ginsburg and Steven Breyer.
  • Dissent by Sandra Day O'Connor, separate dissent by Clarence Thomas and joined by Antonin Scalia and William Rhenquist.

In the majority opinion, Stevens argues that governments should have wide latitude to seize property in making local land use decisions that best benefit those individual communities. He asserts that the city has a development plan that it believes will benefit the community with jobs and tax revenue. He dismisses the notion that the decision could be used and abused in other situations; he said that these situations should be dealt with as they came and not pre-emptively in these proceedings. In his concurrance, Kennedy argues for a somewhat narrower definition of the eminent domain power, but argues that these sorts of decisions should be with in the legal purview of local governments.

In her dissent, O'Connor suggested that the use of the eminent domain power in this manner would lead to "rob from the poor, give to the rich" becoming the norm rather than the exception. She argues further that since any property can be taken for any private entity, the beneficiaries of this are likely to be the citizens who hold disproportionate influence and power in the political process, including corporations and development firms. This decision, she concludes, eliminates any distinction between private and public property and, in effect, erases the words for public use from the Fifth Amendment.

In his separate dissent, Thomas argues that the precedents that were relied on were flawed, as was the court's interpretation of the Fifth Amendment. He accuses the court of replacing the public use test used in the Fifth Amendment with a very different standard for judging the "public use" of an eminent domain condemnation. He finds it extremely dubious that an expensive private development plan with vague promises of jobs and revenue that is strangely advantageous to the Pfizer corporation consists anything remotely close to "public use." He also used the text of the NAACP/AARP/SCLC amicus brief, noting that losses and seizures will fall disproportionately on poor communities with less power and less resource for development.

The wider effects of this case have, naturally, yet to be seen. It will have little effect in the eight states that specifically prohibit the use of eminent domain for any other reason than removal of profound blight: Arkansas, Florida, Illinois, Kentucky, Maine, Montana, South Carolina and Washington. There are two immediate developments, though, that do directly descend from this decision and present interesting implications of their own.

First, there has been action taken in Congress to narrow the definition of "public use" in the wake of the Kelo decision. On June 27, 2005, Senator John Cornyn (R-TX) introduced S.1313, which would specifically define that public use does not include economic development. This definition will apply to eminent domain as used by the federal government and states and localities using federal funds. This bill has eighteen cosponsors, and has been read and refered to the Senate Judiciary Committee. Similar legislation has been introduced in the House of Representatives by Representative Phil Gingrey (R-GA) and Representative Dennis Rehberg (R-MT). House Minority Leader Nancy Pelosi (D-CA) has argued that this legislation violates the separation of powers, saying that the court made its decision and Congress should not interfere in this case because it is not the place of Congress to countermand the orders of the Supreme Court.

It is clear to me that this situation represents a very problematic assertion of government over the rights of citizens. People have the right to dispose of their property as they see fit, to keep or sell it freely. When the government encroaches on this right, especially under the auspices of a private entity, the personal rights of the people are violated. Even beyond this is the idea that the government has redefined the meaning of public to benefit not only themselves but private economic interests to the detrement of the general populace.

This also expands the power of the government over the rights of the individual and restricts the freedom of individual people. This is a power no government can or should have. The people must be free actors, free from coercion and pressure to live their lives and enjoy their property in any manner they see fit. The laws must protect the rights of citizens against the power of the state. No law that is good or fair can ever restrict the rights of the people. These rights are natural and inherent in the humanity of the individual, and the state (an entity created by the people) cannot restrict these rights.

The fact that this decision will adversely effect the poor and disadvantaged is also profoundly troubling. The poor and marginalized are in the most dire need of having their rights protected from the encroachment of a state that would wield their power over them and against their interest. It should not be for the state to decide when these neighborhoods are in need of redevelopment; this is why we have such things as private enterprise and local entrepreneurship that will rebuild communities according to the wishes of the citizens and not government and powerful commercial interests.

Am I against private enterprise and development? Far from it and I believe that this decision hurts private enterprise. By promoting the interests of large business concerns and governments over individual investors and developers, this decision makes the competitive landscape for land development even more uneven than it already is. It is not the job of government to intervene in the affairs of business; business is the exculsive province of the individual and private. The private sector should compete with each other without government interference, calling on the government to enforce laws such as fraud or other torts.

Ultimately, this decision abrogates the very freedoms that the government should be charged with protecting. Without considerable action to restore the Constitution as the law of the land, the rights guaranteed therein will become more and more a distant memory. Rights die from lack of exercise; people need to defend and promote their rights over the government at every turn and in every sector of life. Freedom isn't something that can be ingnored and found unharmed at irregular intervals. The government would much rather that these freedoms were gone and that individuals could be molded into the form of the state.

The government doesn't care about you or your rights. All it cares about is finding ways to separate you from the rights that are yours by the simple fact that you are a human being. We cannot let this happen without a fight. Life, liberty and property are sacrosanct. The government dosen't care enough to protect them. Do you?

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