Sovereignty Report
The most important property rights case in 50 years
by Henry Lamb
February 28, 2005
John Adams must have been spinning in his grave while attorneys for the city of New London Development Corporation explained to the U.S. Supreme Court why Susette Kelos home should be taken by the government and resold to another private owner.
John Adams believed that "The moment the idea is admitted into society that property is not as sacred as the laws of God, and that there is no force of law and public justice to protect it, anarchy and tyranny commence. Property must be secured or liberty cannot exist."
In New London, Connecticut, the idea of "sacred" private property has been turned on its head. The city gave its power of eminent domain to the NLDC, a private corporation, to take the homes of Susette Kelo, and several other residents of the Fort Trumbull community, in order to resell the property to developers who would ultimately pay more taxes than the current residents.
The power of eminent domain, the taking of private property by government, is authorized--and limited--by the U.S. Constitution. Article I, Section 8 of the Constitution clearly limits governments authority to take private property "...for the erection of forts, magazines, arsenals, dock-yards and other needful buildings...." The Constitutional authority for taking private property is limited to property to be used by the government.
The practice of government taking private property for economic development expanded rapidly after the 1981 Michigan Supreme Court decision that allowed the city of Detroit to take private property from 1,500 citizens in a 465-acre tract, so a General Motors assembly plant could be built on the site.
Cities everywhere began to create "economic development authorities" to exercise the power of eminent domain to remove private property owners from land that the city could resell to developers who would produce higher property tax revenues for the city.
The Michigan Supreme Court reversed the infamous "Poletown" decision in July, 2004. Since this reversal, cities have been very nervous, even though the decision affected only Michigan cities. Now that the Kelo vs. New London case has reached the U.S. Supreme Court, cities are pulling out all the stops to try to convince the Court that their use of eminent domain for economic benefit fits within Constitutional authority.
The American Planning Association, the National Congress for Community Economic Development, the National League of Cities, the U.S. Conference of Mayors, the National Conference of State Legislators, the National Association of Counties, and many other similar organizations filed amicus briefs on behalf of the city.
Susette Kelos case was argued by the Institute for Justice. Supporting briefs were filed by dozens of organizations and individuals, including the American Farm Bureau, the Home Builders Association, the National Association of Realtors, Property Rights Foundation of America, Richard Epstein & the Cato Institute, and many others.
This is the most important eminent domain case to reach the Supreme Court in 50 years.
If Susette Kelo wins, the practice of eminent domain takings for economic development will come to a screeching halt. Hundreds of cases now pending will be dropped. Cities will lose one of their most important tools in shaping community development and increasing tax revenues.
If the Supreme Court decides that "economic development" does not fit the definition of legitimate government use suggested in the Constitution, the question arises: does "environmental protection" fit the Constitutional definition? The power of eminent domain has been used to force hundreds of people from their homes in South Florida, to protect the Everglades.
Jesse Hardy is awaiting a court hearing now that will determine whether the state can take his 160-acre homestead in a massive effort to restore the Everglades to its pre-development condition.
If New London wins, no person anywhere in the United States can be secure in the ownership of private property. Just as the government has broadened its power of eminent domain to cover economic development and environmental protection, it will use this power to achieve whatever goal it chooses.
Private property will no longer be sacred--officially. John Adams, and his philosophy, will be erased from the principles on which the United States was founded. The consequences of this decision will shape the 21st century in America.
A free market cannot exist when government becomes the major, determining player. Freedom cannot exist when the government assumes the power to take whatever property it wants from the individual who owns it. As John Adams says, "Property must be secured or liberty cannot exist."
is the executive vice president of the Environmental Conservation Organization (ECO), and chairman of Sovereignty International
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