Eminent Domain: Call Me Conservative

Last month the Supreme Court ruled 5 to 4 that state and local governments could use eminent domain to take private property against the owners' will for use in private development. In this particular case, the city government of New London, Connecticut determined that razing private homes to build a hotel and convention center was for the public good.

In the majority opinion backing New London's authority to use eminent domain, Justice John Paul Stevens wrote:
"The city has carefully formulated an economic development that it believes will provide appreciable benefits to the community, including -- but by no means limited to -- new jobs and increased tax revenue."
Eminent domain is understandably controversial, especially when it involves taking people's homes from them. But this Supreme Court decision is a new twist on eminent domain, since it contradicts prior rulings which have allowed takings only for public use. In this case, the argument goes, selling off land for private development somehow constitutes "public use," because it increases the municipality's tax base.

Invoking eminent domain for building roads or schools is one thing. But for "a conference center, hotel complex, offices and condominiums"?!
"In 2000, the New London City Council presented a redevelopment plan for the Fort Trumball area including a conference center, hotel complex, offices and condominiums. The execution of the plan would require the razing of the neighborhood's homes and small businesses. Eminent domain power was transferred to the New London Development Corporation, a private, nonprofit group of citizens, business owners and community leaders.

The controversy gained national legal status when some Fort Trumbull residents began to question the use of eminent domain not for a traditionally defined public project — a roadway or a school, for example, — but under the rationale that the private developments outlined in the plan would increase the tax base of the area and the economic vitality of the city."
I was shocked to discover that I agreed with conservative Justices Sandra Day O'Connor, Clarence Thomas, William Rehnquist and Antonin Scalia on this decision, who sided with the homeowners. In dissent, O'Connor wrote:
"Any property may now be taken for the benefit of another private party, but the fallout from this decision will not be random. The beneficiaries are likely to be those citizens with disproportionate influence and power in the political process, including large corporations and development firms."
In his dissenting opinion, Justice Thomas wrote:
".. a costly urban-renewal project whose stated purpose is a vague promise of new jobs and increased tax revenue, but which is also suspiciously agreeable to the Pfizer Corporation, is for a 'public use.'

I cannot agree. If such 'economic development' takings are for a 'public use,' any taking is, and the Court has erased the Public Use Clause from our Constititution ...

The Fifth Amendment provides ... 'nor shall private property be taken for public use, without just compensation.' ... the Takings Clause prohibits the government from taking property except 'for public use.'"
This decision has set off a fire storm -- "In 28 states, lawmakers have initiated actions ranging from re-examining eminent domain laws to voting for constitutional amendments to limit government takings. Additional bills have been introduced in the U.S. House and Senate." And for the first time in a long time, conservatives and liberals have found an issue that they can agree on.