The taking of private property

By The Helena IR - 06/26/05

It hasn't taken long for conservatives to begin railing about the Supreme Court ruling that gave local governments broad power to condemn private property not only for roads or bridges but also for economic development projects. "Liberalism triumphed," said columnist George Will.

Well, one can argue that the decision has problems, but since when was taking from the poor to give to the rich a liberal proclivity?

The court's ruling came out of a New London, Conn., case in which the city wanted to raze a middle-class residential neighborhood to make way for commercial development. Most of the homeowners were willing to sell, but those that were not willing found their property condemned under eminent domain.

Despite typical potshots from the left and right, the case, like most to reach the high court, was not a matter of black or white. Writing for the majority, Justice John Paul Stevens said that "Promoting economic development is a traditional and long-accepted function of government" — a statement that's difficult to refute. But in dissent, Justice Sandra Day O'Connor warned that now "the specter of condemnation hangs over all property. Nothing is to prevent the state from replacing any Motel 6 with a Ritz-Carlton, any home with a shopping mall, or any farm with a factory."

A key argument raised by the homeowners, an argument rejected by the majority, involved blight. Cities have long had authority to tear down ghettos as part of urban renewal projects, but nobody contended that the New London neighborhood was blighted. (As it happens, Montana is one of eight states that forbid the use of eminent domain for economic development unless it is to eliminate blight.)

By ruling that condemning property and turning it over to a private developer falls under the "public use" requirement of the Fifth Amendment, the court was careful to say that the process must be used as part of a comprehensive development plan, not simply a way to make some developer rich.

But there is a strong consensus in this country that "a man's home is his castle" — that no matter how humble, personal property must be respected except in extraordinary circumstances. Stevens certainly recognized this, saying the court's opinion doesn't preclude states from placing further restrictions on condemnations for economic development. We suspect such laws won't be long in coming.


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