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 Editorial
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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 Amendment.

“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 started.

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 appointed officials.

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 “public use.”

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 use.”

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. -1/citizen03