Protect property rights lest they be
savaged by private and public interest groups - U.S. Supreme Court
took eminent domain way too far
July 17, 2005
Citizen Online 'The voice of central New Hampshire'
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Let's be sure New Hampshire's position on land taking protects the
state's property owners. A ruling by the U.S. Supreme Court last month
puts everyone's property at risk.
The 5-4 decision upheld a Connecticut Supreme Court ruling that allows
the City of New London to condemn unblighted private property for
development by another private party. The city had held the taking would
allow improvement to the property in a manner that would make it more
valuable to the city as whole -- read that to mean the city would
be able to collect more taxes.
It's giant stretch of the eminent domain clause of the Fifth Amendment
to the U.S. Constitution -- a stretch that beggars the imagination
of any reasonable person or reasonable majority of any court.
Property is included as one of our most cherished and fundamental
rights. It is second only to the rights enumerated in the First
“No person shall ... be deprived of life, liberty, or property,
without due process of law; nor shall private property be taken for
public use without just compensation,” is what the Founders wrote .”
Writing for the majority last month, Associate Justice John Paul Stevens
seems to have added the clause, “unless a state or any of its
subdivisions might derive additional revenue, the distress of the
property owner notwithstanding.”
Stevens -- joined by Associate Justices Anthony Kennedy, David
Souter, Ruth Bader Ginsburg and Stephen Breyer -- has taken the
definition of “public use” in a direction heretofore not explored in
a manner as it was applied in Kelo vs. the City of New London. The
ruling gives the states -- and by extension, cities, towns and
counties -- broad discretion for taking property for purposes
previously thought beyond their reach.
The wise use of eminent domain is a necessary tool for the public good.
Were it not for condemnation, or the threat of it, highway construction
and expansion would come to a halt. Were it not for eminent domain in
the 1960s and '70s blighted areas in large and small cities -- even
some here in New Hampshire -- would have become cancers and
important urban renewal programs would have been blocked before they got
The existence of eminent domain can promote the kinds of negotiations
that would not otherwise be possible.
The high court has taken eminent domain into a realm the Founders could
not have imagined. But what is astounding is what the court did last
month in terms of opening wide the doors to unconscionable abuse on the
part of private developers working with easily overcome elected or
The decision allows states, counties and communities to destroy entire
middle-class neighborhoods in order to allow the taking of any private
land for and by private interests for no other reason than to expand a
tax base. It also allows the destruction of viable businesses in order
to create a different environment -- all in the name of beneficial
It is the expansion of a tax base and confiscation of property by
political theft, as well as a distortion of the benefits of “public
The Stevens majority does leave a way out -- an escape from the
danger it has created in Kelo.
Stevens concludes a 20-page opinion by saying, “We emphasize that
nothing in our report precludes any State from placing further
restrictions on its exercise of the takings power. Indeed, many states
already impose 'public use' requirements that are stricter than the
federal baseline. Some of these requirements have been established as a
matter of state constitutional law, while others are expressed in state
eminent domain statutes that carefully limit the grounds on which
takings may be exercised.”
It is the final paragraph in Stevens' writing to which the New Hampshire
Legislature must attend when it reconvenes.
New Hampshire is committed to economic development. Let's also be sure
we are committed to the property rights of our residents, that they
might live free from the threat of a bulldozer.
Copyright 2005, Citizen Online.