By alexander Rubin
Thursday, July 7, 2005
In the true spirit of america’s Independence Day, the 4th of July saw battle joined as homeowners, concerned citizens and upholders of the american constitution from all sides of the political spectrum joined forces to defend the now threatened 5th amendment and to protect hard-earned property from municipal governments recently accorded sweeping new powers of eminent domain.
On June 23, the Supreme Court upheld their ruling in the Kelo vs. New London case, after broadly reinterpreting the "public use" mandated in the 5th amendment to justify invocation of the power of eminent domain. By radically expanding the definition of "public use" to include economic revitalization, or promise thereof, the decision now allows municipal government to seize private property from one private entity, to give to another, in the name of urban renewal. In other words, taking candy from a baby is now legally acceptable, so long as the candy is given to another baby.
Since the decision, tens of municipalities across america have been taking advantage of the ruling in order to seize private property for local urban renewal. Though the Kelo vs. New London verdict specifically dealt with the condemnation of houses for the purposes of demolition and redistribution of the land, eminent domain has been used a tool to reallocate all sorts of privately held land in the name of "public use". The less than stellar record of eminent domain is heavily spotted with clear examples of increasingly ruthless and dishonest, even amoral, usages of the law by municipal governments.
In New York in 2000, whose eminent domain laws were particularly open to abuse, a series of lawsuits were launched against the government in order to reform the law. according to Dana Berliner, an attorney representing some of the property owners who sued, "New York’s eminent domain law defies both common sense and the Constiution… In New York, there are only thirty days when you can object to the government taking your property to give it to another private party. Those thirty days come and go without any individual notice to the owner, a proper hearing, or notice of the right to appeal, all of which are required by the Constitution. Those who face the loss of a home, business or church receive less due process than a kid being suspended from school." Though the lawsuits ultimately achieve some minor reforms, the system still leaves much to be desired.
In February 2002, the city council of Cypress, California approved an "exclusive negotiation agreement" with CostCo and selected a development proposal. This would be hardly unusual, aside from the fact that the agreement was for land that was not theirs. The land belonged to a church. The city seized the land from Cottonwood Christian Center, 14.9 million dollars worth, through eminent domain. Though the scenario of a city council replacing a church with Costco is disturbing enough in itself, vividly evoking images of a church of consumerism, perhaps the most disturbing aspect of the whole affairs were the statements of council woman anna Percy, who compared the city to "parents" who knew what was best for city residents and church members who did not have all the facts to make the decision, whom she designated "kids".
The recent Kelo vs. New London decision has raised a firestorm of public outrage across the entire country, and rightly so. already widely criticized for the threat it poses to small homeowners, allocating sweeping new powers to the municipal government to exercise eminent domain has done nothing to allay public fears. The ruling has prompted widespread worry that the decision will be used as a legal trump card in property disputes between municipal authorities and private homeowners and businessmen.
For many americans, the damage done and threatened by the decision is as much symbolic as anything else. The decision violates the spirit of the constitution, designed to protects the rights and freedoms (including the right to property) of americans, effectively nullifying the relevant section of the Fifth amendment. For some, it evokes shades of the Russian revolution and communism, in that it allows the government to appropriate land for the ‘greater good’ of the community. For others, it is simply a sign of how a centrist, nanny state agenda is trying subvert the judicial system to rewrite or nullify american values; another case of judicial activism gone berserk and used to limit american freedoms in the name of the greater good. For others, it is evidence of the growing power of the large corporations and the strength of their hold on the american judiciary.
In his dissenting opinion, Justice Clarence Thomas wrote that in making the decision "something has gone seriously awry with this Court’s [SCOTUS] interpretation of the Constitution." By tacitly changing "public use" to the much broader "public purpose", the "deferential shift in phraseology enables the Court to hold, against all common sense, that a costly urban renewal project whose stated purpose is a vague promise of new jobs and increased tax revenue…is for a public use" and the burden of which would "fall disproportionately on poor communities. Those communities are not only systematically less likely to put their lands to the highest and best social use, but are also the least politically powerful" and so could not ably resist the power of the court.
Studies of 10,000 cases of alleged abuse of eminent domain have seemed to confirm that this was the case.
Thankfully for american values and freedoms, the spirit of independence is still alive and kicking within the american breast. Shortly after the decision, groups of concerned citizens, politicians and legislators from all across the political spectrum came together to combat the decision. Lawyers dug up precedents from cases where the homeowners successfully prevented use of eminent domain, such as in County of Wayne vs. Hathcock, which reversed two decades of Michigan eminent domain law.
Hathcock summed up the feelings of many americans made painfully aware of eminent domain when he said "I just cannot imagine how we can give such a broad brush of power to local, municipal government."
Meanwhile, conservative activists at the Free Republic online community gleefully began to support Logan Darrow Clement’s plan to build the intentionally ironically titled "Lost Liberty Hotel" on Justice David Souter’s property in New Hampshire, as a way to humorously highlight the unnecessarily extreme reaches of the newly revised eminent domain law.
at the same time, legislators from both Republican and Democratic parties sponsored bills that would narrow the definition of "public use" or restrict abuse of the eminent domain power by municipal authorities. Championed by Senator John Cornyn and Congressmen Dennis Rehberg, Tom DeLay, John Conyers and James Sensenbrenner, several of these proposed bills have been gathering increasing support from both the public and public representatives. Several Democrats, led by House Minority Leader Nancy Pelosi, opposes these measures stating concern that they would violate separation of powers and signify lack of support for the Supreme Court.
However, knowledgeable legalists and cynics both point out that these bills, even if they pass, would not have much of an effect on the application of eminent domain since it’s application is determined by a local authority, and a federal resolution would not heavily impact it. as a result, many citizens are turning a thoughtful eye to a state-wide prohibition of eminent domain, except in cases of blight, already in effect in arkansas, Florida, Illinois, Kentucky, Maine, Montana, South Carolina and Washington.
Whatever the ultimate fate of eminent domain, the battle over its abuse will come to define america’s future, and the future of american freedoms. The battle for eminent domain, already hard fought by the fourth of July, masks the larger struggle overshadowing america today: the struggle to maintain freedoms, liberties and to limit the power of the government, perhaps even at the possible expense of the greater good.
alexander Rubin is a freelance columnist living in Toronto
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