Eminent Domain – a Truly Tri-Partisan Issue

GaryTWell the Kelo, (Kelo v. New London 125 S. Ct. 2655 (2005))  decision had come and gone back in 2005, bringing the all its aghastive issues to a head, popping that sociological pimple, and gushing all its un-Libertarian contents onto the American psyche. The ruling was, however, so outrageous, that even Democrat and Republican leaders found it reprehensible, making the issue offensive to all three political parties, an unusual commonality.

Looking back, in Kelo, the municipality of New London, Connecticut, laid an acquisitive eye upon the benign and working neighborhood of Fort Trumbull, an area of about 90 acres and containing 115 homes and private properties.

New London City administrators didn't have a complaint that the properties were in violation of any zoning or state law, nor did it claim that any of the properties were in tax arrears, abandoned or blighted. In fact the residents of Fort Trumbull were archetypically upstanding citizens of the community, literally minding their own business.

What New London's bureaucrats did have however, was avarice for the property taxes that Fort Trumbull residents' didn't owe, the property taxes that it believed it could get from Pfizer Pharmaceutical Corporation, with whom they had pre-negotiated a non-binding understanding for a manufacturing plant to be built within the Fort Trumbull area.

The City's expectation was that the area could be forceably taken, resold at significant profit, and receive far more tax revenue if it was owned by a large corporation with an expensive factory, instead of a few dozen middle class residents; it was more than the City Council apparatchiks could contain.

However in a recent turn of events, the irony that even Rod Serling couldn't have played out more didactically, Pfizer Corp. has decided to abandon the project, and the utter needless grief and destruction caused by abusive  Eminent Domain acquisition is laid bare. It screams to all how un-American this fiasco, and the thuggish principles behind it, are.

The big question pending at that time, and still surviving between the cracks of earlier Supreme Court precedent was the whether government(s) had any Constituional limit on the discretionary seizure and taking of private property, ostensibly under the eminent domain clause of the US Constitution; if governments had such discretion it would effectively spell the death knell of fundamental private property rights. The alternative possibility was whether there was some legal brightline standard by which property owners could assert that eminent domain was simply not applicable, and that government discretion was not within its power to assert.

Rationalizing, and parlaying on the concept, New London proclaimed that such a transfer of title “was in the public interest”, and would thus initiate its preemptive option of eminent domain jurisdiction, and seize by force what they could not negotiate voluntarily with the property owners.

By legal definition, Eminent Domain theory is the legal means by which various sovereign governments of the United States are legally authorized to involuntarily seize private properties and convert them to public use; embodied into law via the “takings” clause of the 5th Amendment of the US Constitution, which reads:

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.

As in all law however, the devil is in the judicial interpretation, particularly whenever some authority wishes to expand its power beyond the obvious terms that the law provides for.

Example: The preventative detention clause of the 8th Amendment commands simply that “Excessive bail shall not be required”. Yet in 1984 Congress authorized the detention of federal criminal defendants without bail at all. Although this would appear to violate the 8th Amendment, since no amount of money or condition would be enough, the Supreme Court ruled that since no numbered bail amount was offered, it could not be considered excessive.

(Of course all these standards apply to federal executive and policing powers, the legal standard of which becomes the default of all other sub-governments within the United States. That default exists only where there isn't another superseding standard explicitly written into law within those sub-governments, e.g., local, county or state laws.)

With capricious judicial latitude like this, we can easily see the Constitution's prohibition of “cruel and unusual punishment” being interpreted to permit cruel punishment – as long as it is not unusual. Don't think it can't happen. “modern” countries, like Saudi Arabia, routinely practice cruel, but quite usual, punishment, such as the chopping off of defendants' hands for petty thievery.

However, back to the question of eminent domain, the pivot point for abuse of this clause, was, and is, centered on the phrase “public use”, which what the US Constitution explicitly uses.

So, just what is public use?

Traditionally (that is, before the Supreme Court went insane), public use is just like what it sounds like – the use of the subject land/property by the public, e.g., public highways, dams, government buildings, airports, public parks or recreation areas – essentially, public works where the public would have access to, and directly benefit from the use of. The terms of the law seem unambiguous.

And yet, as unambiguous as it may be, the courts will always find (or make) a little wiggle room that serves the State at the expense of both the public and particularly the private individual.

An inconvenient phrase or word will be folded, spindled and mutilated when the government desires more jurisdiction, more power or more control than the raw terms of the law.

Somewhere along the precedential way, statist minded jurists ignored the plain language of the law, and began to expand on the concept of “public use”.

The first salvo launched by the courts was to casually introduce the terms “public purpose” and “public welfare” as synonymous and interchangeable with the actual law's constrained mandate “public use”, see Berman v. Parker 348 U.S. 26.

In Berman the question was whether a eminent domain could be imposed where a municipality planned to eliminate slums and urban blight, notwithstanding its ultimate usage. The Court ruled that it could.

(Being 1952, the Berman decision came down during the decade after World War II, a time of great optimism about the power of government. Utilizing federal funds, cities were embarking on massive urban renewal efforts. These plans, despite meeting the newly minted “public purpose” requirement, met often with failure rather than success — thence the skeletons of many American central cities ossified into the brutalist concrete ghost towns seen today. The old Kelo property and the Fort Trumbull area is now a parallel expression of that, the spiritual descendent of the same callous presumptions.)

By committing Constitutional heresy, these alternate, more inclusive, terms were canonized as being equivalent – the rights that had been protected, and the prerequisites that had been required by the Constitution for asserting eminent domain, were mooted, and easily side-stepped.

Hence, the legacy New London City could rely upon in their land-grab.

Outraged as anyone would be when a thug grabs your belongings at the point of a gun, some of the victims, headed by Susette Kelo, sued the city of New London, asserting that even if the town had the power to take their possessions, the target use of those properties should only be for “public use” as the Constitution commands. In order to not offend the precedential (but clearly heretical) Berman, the distinction they made in their argument was whether eminent domain could be applied where the municipality was not seeking to eliminate slums or urban blight, but rather for the sole purpose of “economic development”, and any factual premise that could be inferentially forced-fit into that purpose.

The plaintiffs (Kelo, et al) complained to the federal district court that taking it from them and selling it to large corporations and other private entities, who retain private property protections of use from the public, could not be considered “public use”.

The case made its way all the way up to the US Supreme Court, where the minimum majority, in a 5 to 4 decision, ruled that this kind of economic development was a legitimate takings under the “public purpose” test, and that the government delegation of its eminent domain power to a private entity was Constitutional.

But of course the issue could past muster under such a standard; the only problem is that the Constitution does not provide such latitude. As Justice Thomas observed in his dissent:

“This deferential shift in phraseology [from "public use" to "public purpose"] 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, but which is also suspiciously agreeable to the Pfizer Corporation.”

After the Court's judgment in favor of New London, the city heaped insult upon injury, by demanding that Kelo, et al, pay rent for the time they occupied their homes during the civil case proceedings, some 5 years of culminated back rent, equal to tens of thousands of dollars, since the city initially attempted to seize their properties. (We can only presume they didn't also try to claim property taxes for that time as well.)

Forced into the unconscionable circumstance of abandoning their homes, the residents were now only left with the hope and expectation that they would receive “just compensation” for the seizure of their properties. New London reportedly had allocated $1.6M to purchase the 15 homes surviving the Kelo case, approximately $107K per home on the average.

The courts have defined the Constitution's “just compensation” as meaning “market value”, which of course itself is subject to interpretation. That valuation of course is kindly provided by the arrogating municipality. (In this case it is interesting to note that the median home cost in New London was $226,700, about twice the value of New London's idea of “just compensation”.)

Such a schemata certainly did away with any opportunity of a forfeiting property owner to get the best price they could on the open market, and it certainly did not provide the property owner with a “replacement value” sufficient to make him/her whole again. And if the property owner cares to object to the price stuffed down his throat, he has to spend even more money to try to contest it administratively or in court.

Left with little choice, such a property owner must now spend effort and resources trying to find another home within budget, moving all possessions, and suffer the unavoidable disruption of his/her social and business life, all of which is not included in the “just compensation” that s/he is paid.

Kelo's house was eventually physically removed and relocated, where it now stands several miles from its original location, as a testament to this brutish fiasco.

In September 2009, the vibrant Fort Trumbull neighborhood, where Susette Kelo's home had once stood is now an empty lot generating no tax revenue for the city and its residents; the city's projected 3,169 new jobs and $1.2 million a year in tax revenues had evaporated as effectively as did American citizens' fundamental rights to their own personal properties.

By November of 2009, Pfizer had abandoned the site and was in the process of selling, leasing, or utilizing some other disposal method for the properties.

The former residents of New London might very well ask now, what is more blighted? The active community, houses and families that resided in Ft. Trumbull before the City seized their land, or the weeded urban waste, and vacant lots that now exist there.

With such political powers at stake is it any wonder why the court's consistently rule in the statist's camp? A seizing municipality now merely has to proclaim just about anything they want to do as being “in the public interest” and for a “public purpose”, it can then forcibly forfeit private owner's homes and land, oust them as trespassers, and then pay them what is unilaterally declared “just compensation”; it is then free to resell the property to the highest bidder. All in the “public interest” of course. The protections the Constitution was authored to have, to prevent governmental abuses like these, have been eviscerated by the changeling term “public purpose” instead of the more constrained “public use”.

It isn't an accident that the term Eminent Domain translates directly to Supreme Lordship (from the original Latin dominium eminens). Such power stems from the very core of national socialist mentality, that private interests must always yield to greater social need.               

Notwithstanding this socialist presumption, the application of which could still follow an honest purpose, the problem is not so much one of actual social need, but rather who gets to interpret what society is in need of, and whether society, ostensibly, will be served by seizure of private lands, to be disposed of in any way expedient to the government.

When such questions are unilaterally determined by a seizing power, well . . several cliche's come to mind – the liquor store run by the alcoholic, fox guarding the hen-house, absolute power corrupts absolutely.

(A typical case study: the Village of North Hills in Nassau County eye-balling the Deepdale Golf Course, with the intent of municipalizing it for the exclusive use of village residents.

The mayor said this would increase the property values of its exclusive homes, already worth millions, and that the town will benefit from the property tax increases.

Interestingly, North Hills doesn't have a firehouse, a library, or even a school for its residents' public use.)

But in the Kelo case, it may appear that this total evisceration of private property rights, could have an ancillary silver lining, if only by virtue of the naked, presumptive, audacity of it all.

Whereas most Americans generally ignore the political process, and may only have a passing idea of current Supreme Court cases, this one seems to have struck a nerve.

It seems to have united an overwhelming majority of the people and politicians toward the quotidian libertarian attitude about this practice; strangely because in most other socio-governmental arenas Americans on the whole have swallowed and accepted the Demopublican party line, insofar that you must ultimately sacrifice personal liberties and properties for the good of society.

Although in public debates we find many complaints about the evisceration of personal liberties, we rarely see the public actually vote out of office the very legislators and jurists that effect the loss of those liberties.

This is a result of the public's daily discomfort level still clocking in lower than their natural tropism to vote as they always have, due to tribalism and inertia. People simply don't vote on idealism, they vote first with their emotions, then with their personal inertia, then with their tribe. Even when their personal liberties are culled, unless they feel it directly, it has very little effect on their voting habits.

(It has been said that serfs of the middle ages would revolt when taxes began to exceed 10%.An interesting factoid, considering that modern Americans pay over 40% of their income in taxes.)

Eminent domain abuse is what sparked the ire of the American people, so strongly so that politicians have had to grit their teeth, gone against their power snaffling, socialist grain, and forced themselves to align with a populist rally.

Despite its onerous reincarnation since 1953, Eminent Domain abuse is again a hot button topic that most politicians now bellow about. Statutory bills have since been instituted in many states banning the seizure of private property for the use of “economic development”, and other states are considering voting such prohibitions into their constitutions. In US Senate, a bill entitled “Protection of Homes, Small Businesses, and Private Property Act of 2005″ (the PoHSBaPP Act?) had been introduced, to limit the use of Eminent Domain for economic development from the federal government, and also upon the States (via that time tested federal coercion tool – withholding federal funding to states who refuse to play ball.) Similar bills have been put before the Congress as well. Even former POTUS Bush issued and executive order curtailing some of the newfound powers the Supreme Court permitted.

Some private institutions have jumped into the sway; BB&T Bank announced that it refuses to lend money to commercial developers that intend to build upon land that has been taken away from private citizens via Eminent Domain proceedings.

Many critics contend that most of these initiatives are window dressing, leaving gaping holes in their prohibitions that effectively leave the worst kind of discretion intact. It is as if, like an overcontrolling parent, the law makers just can't nip their umbilical cord of control, and let their adult children live their own lives.

To libertarians, of course, Eminent Domain is always abuse, for such activity strikes to the very core of libertarian precepts. It is perhaps the most bluntly socialist power retained by the government as a constitutionally protected act. This is made all the more abusive, when what passes for due process, is actually the legally sanctioned whim of governmental apparatchiks.

Libertarians vest first rights of property on the individual, and no other entity has the option to supersede those rights; it is only through voluntary negotiations or debt resolutions that a person's property can be taken from him/her.

Curiously, in light of the public's reaction, legislators have proposed another Amendment to the Constitution that makes explicit these expected limitations of Eminent Domain; considering that the original Amendment (5th) already makes explicit these limitations, this is almost comical. But burdened by the rapacious interpretations of the Supreme Court, it may necessitate a redundant “No, Really” Amendment saying the same damn thing: “Public use means PUBLIC . . . USE!”.

One can only hope that similar outrages will reach a critical mass, that Americans en bloc will wake up from the Demopublican stupor they have been Sirened into, and begin to see the light of liberty recognized and coveted by libertarians.

It is only then that society and government will respect and protect the personal sovereign rights of private property and of personally retained liberties.