BEGINNING HIS ORAL ARGUMENT in Kelo v. City of New London, the Connecticut eminent-domain case the Supreme Court took up last week, Scott Bullock of the Institute for Justice puts the stakes bluntly:
"Every home, church, or corner store would produce more jobs and tax revenue if it were a Costco or a shopping mall," he says. If state and local governments can force a property owner to surrender his land so it can be given to a new owner who will put it to more lucrative use, no home or shop in America will ever be safe again.
Susette Kelo and attorney Scott Bullock of the Institute for Justice speak to reporters on the Supreme Court steps
But can the government kick people out of their homes or businesses simply to make way for new development?
Under the Bill of Rights, the power of eminent domain may be used only when land is needed for a public use. "Nor shall private property be taken for public use without just compensation," the Fifth Amendment commands. A school, a post office, a right of way for a railroad -- those are the kinds of public uses for which property owners have traditionally been made to relinquish their land.
But that isn't why New London wants to tear down the 112-year-old Victorian that Susette Kelo worked so hard to renovate, or the house at Walbach and East streets where Wilhelmina Dery has lived for all of her 87 years. The city doesn't want their land for a public facility or a new road. It simply wants the expanded tax base and economic growth that will come with new development. Can that be what the Constitution means by "public use" -- the trickle-down benefits of private use?
Once, Supreme Court justices would have given short shrift to such a claim.
"The despotic power . . . of taking private property when state necessity requires, exists in every government," Justice William Paterson wrote in a 1795 case, Vanhorn's Lessee v. Dorrance, but the state must not invoke that power "except in urgent cases." He could not imagine any situation that would justify "the seizing of landed property belonging to one citizen, and giving it to another citizen. . . . Where is the security, where the inviolability of property, if the legislature . . . can take land from one citizen, who acquired it legally, and vest it in another?"
But there is no echo of Paterson's spirited defense of property rights as the justices consider Fort Trumbull.
When Bullock argues that New London wants to throw people out of their homes for the sake of ordinary economic development, Justice Ruth Bader Ginsburg asks why that's a problem. New London is depressed, she says; what's wrong with trying to "build it up and get more jobs?" If the city could buy property on the open market and turn it over to a developer, wonders Justice David Souter, why can't it use eminent domain to achieve the same end? Justice Stephen Breyer notes that there is bound to be some public benefit from almost any land taking. Isn't that enough to satisfy the Constitution's "public use" requirement?
It is a depressing colloquy for anyone who believes that property rights are fundamental to liberty. But there is worse to come. Justice Sandra Day O'Connor presses Wesley Horton, the lawyer for New London, on whether eminent domain can really be deployed to condemn any property that could be put to better use.
"For example, a Motel 6," O'Connor says. "A city thinks, 'If we had a Ritz-Carlton, we'd get higher taxes.' Is that OK?"
"Yes, that's OK," Horton replies.
Justice Antonin Scalia: "You can take from A and give it to B, if B pays more in taxes?"
Horton: "Yes, if it's a significant amount."
Got that? Anyone's property can be taken by eminent domain if the government believes another owner would use it to earn a higher profit. New London isn't alone in making such an outrageous claim. In planning commissions and redevelopment authorities nationwide, the Fifth Amendment's "public use" requirement has been ignored for years. The question now is whether five Supreme Court justices will agree to kill off this piece of the Bill of Rights for good, or to bring it back to life. The fate of more than just seven Connecticut homeowners is riding on their decision.
(Jeff Jacoby is a columnist for The Boston Globe.)