Skip to content

Say goodbye to property rights

The Kelo Five

No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.

Amendment V, U.S. Constitution
[Emphasis added]

If you read the Fifth Amendment, you’d think that the government is prohibited from taking private property for private use, wouldn’t you? But according to five unelected lawyers, you’d be wrong.
The U.S. Supreme Court just handed down a ruling in the case of Kelo v. New London, in which it declared that your city government can take your house, bulldoze it, and sell the lot to a developer … so that the government can charge more in property taxes on the new commercial property that used to be your home.
Here’s the travesty opinion; read it and weep:

More on this later. For now, check out Michelle Malkin (and don’t miss the boiling anger across the blogosphere). Reactions excerpted here, too.

UPDATE: Justice Thomas’ dissent does a great job of explaining that words mean things … especially in our Constitution:

The most natural reading of the [Takings] Clause is that it allows the government to take property only if the government owns, or the public has a legal right to use, the property, as opposed to taking it for any public purpose or necessity whatsoever. At the time of the founding, dictionaries primarily defined the noun “use” as “[t]he act of employing any thing to any purpose.” The term “use,” moreover, “is from the Latin utor, which means ‘to use, make use of, avail one’s self of, employ, apply, enjoy, etc.” When the government takes property and gives it to a private individual, and the public has no right to use the property, it strains language to say that the public is “employing” the property, regardless of the incidental benefits that might accrue to the public from the private use. The term “public use,” then, means that either the government or its citizens as a whole must actually “employ” the taken property.

Justice Thomas, in dissent

I don’t see anything in New London’s confiscation of Suzette Kelo’s home that involves a public use. The city’s going to sell the land to a private developer. If we lived anywhere but in Supreme Court World, the violation of Kelo’s constitutional rights would be obvious.

UPDATE 2: Professor Bainbridge points out the injustice in succinct terms by recalling a post he made in February:

… the requirement to pay fair market value is a grossly inadequate safeguard on government power for two reasons in Kelo. First, it fails to take into account the subjective valuations placed on the property by people whose families have lived on the land, in at least one case, for a 100 years. In other words, if the Supreme Court rules for the city, the government will be able to seize land at a price considerably below the reservation price of the owners. Second, unlike the prototypical eminent domain case, in which the land is seized to build, say, a school or road, in this case the city is using eminent domain to seize property that will then be turned over to a private developer. If this new development increases the value of the property, all of that value will be captured by the new owner, rather than the forced sellers. As a result, the city will have made itself richer (through higher taxes), and the developer richer, while leaving the forced sellers poorer in both subjective and objective senses.

Will Collier at Vodkapundit sees what’s coming:

This is a dreadful decision. If politicians have the right to take your private property and give it to somebody else just because the other guy claims that he can generate more taxes from it, then property rights have ceased to exist in the US.
The localities are still required to pay “a just price” when one of these takings occurs, but the price even a willing seller would be able to get from his property just took a huge hit. All a developer has to do now is make a lowball offer and threaten to involve a bought-and-paid-for politician to take the property away if the owner doesn’t acquiesce.

You know it’ll happen, and soon.

UPDATE 3: RightNumberOne knows that it’s all about following the money:

A land rush is about to begin. Polticians bought and paid for with campaign donation bribes are about to be unleashed on the United States like a plague of rats. You can either become a donor, or your land will be forced from you and turned over to people who are more politically astute.

It’ll start this very week, I have no doubt. Geez, must property owners now form a 527 group to funnel protection money to politicians? Why do we even have a Constitution if five dipdunks in black robes rule over us unopposed?

UPDATE 4: Glenn Reynolds thinks this decision’s going to cause a public opinion tsunami. I agree. More from Glenn here and here.

UPDATE 5: Jeff Goldstein nails it:

Lovely how the majority justices tried to cover this decidedly anti-Lockean decision with a rhetorical appeal to federalism (“local officials, not federal judges, know best…”). But just because the decision allows a local government (rather than the federal government, with its cynical appeal to a malleable Commerce Clause) to assert what appears to me to be an extra-Constitutional claim on a private citizens� property rights doesn�t make it any more kosher�and today�s decision, in its expansion of what can be shoehorned into the category of �public use,� gives carte blanche for municipalities to remake the geography in any way they see fit, so long as they can make the argument that they are doing so for the common weal (which in many cases is really just an excuse for gentrification�and legalizes the taking of private property from one owner and transferring it, by municipal will, to another government approved private property owner; it�s a plutocrat�s wet dream).

This is nannystatism at its most cynical. And if the Bush administration were to use this ruling to push for the kinds of conservative justices who strongly object to what amounts to outright thievery and municipal bullying, I think they�d have a real winner on their hands.
If developers wish to purchase potentially profitable land for civic development, let them strike a bargain with the land�s rightful owner; allowing them to achieve their aims by lobbying unctious and pliable elected officials instead gives those elected officials far too much power, and subverts the natural workings of a free market system.

Personally, I�m for starting a cyber support group for the New Londoners who are planning a show of civil disobedience when the bulldozers tractor up to the doors of their homes. Anybody else?

The more I think about this, the angrier I get. Meanwhile, Fox News and CNN and MSNBC focus on the missing girl in Aruba, proving yet again that the mainstream media is painfully out-of-touch. By contrast, look at what the blogosphere’s talking about.