Monday, November 28, 2005

"Seize this!"

Win for eminent domain could leave it as a loser

November 28, 2005

By Steve Chapman
The Baltimore Sun
Copyright 2005

CHICAGO // Local governments that want to use their power of eminent domain to promote economic development won a huge victory last June when the U.S. Supreme Court agreed with them that seizing private property for such purposes does not violate the Constitution.

But that triumph brings to mind Oscar Wilde's remark: "In this life there are two great tragedies. One is not getting what one wants, and the other is getting it. The last is much the worst."

You would expect that winning in the Supreme Court would mean local and state governments would have a much easier time using their condemnation authority in the name of creating jobs and revenue. Instead, they find they have ignited a rebellion. When the court said the city council is free to take your property to put up a Mega Mart, a lot of Americans replied, "Seize this!"

The Supreme Court decision concerned an effort by the city of New London, Conn., to demolish private homes, over the objections of the owners, so a commercial development could be erected in their place. But five months later, that hasn't happened, and it may never.

The mayor fears the plan "may not be as viable" as it once was, investors are leery of the wrath of property-rights advocates, and the state legislature has asked cities to hold off on such seizures until it can rewrite the law. Meanwhile, one local owner says he's optimistic enough to put on a new roof.

Never has a victory cigar made such a big explosion. By giving cities a free hand to take property from one private owner and give it to another, the Supreme Court scared the bejesus out of millions of taxpaying homeowners.

They took to heart what Justice Sandra Day O'Connor warned in her dissent: "The specter of condemnation hangs over all property. Nothing is to prevent the state from replacing any Motel 6 with a Ritz-Carlton, any home with a shopping mall, or any farm with a factory." As fellow dissenter Justice Clarence Thomas lamented, "Though citizens are safe from the government in their homes, the homes themselves are not."

The U.S. Constitution says the government may forcibly acquire your home or your land only "for public use" and only for a fair price. The public-use requirement traditionally covered things like highways and railroads, and it also allowed the government to raze decaying blocks that amounted to a public nuisance. But in this ruling, the court said, "Private use, public use -what's the difference?"

Now, as long as the government claims that the public will benefit in some way, it can grab any property it wants and give it to anyone it chooses. If local officials think they can generate more tax revenue by kicking you out of your home and turning the lot over to someone else, the court said, they're entitled to try.

That outcome didn't sit well with a public that regards a person's home as his castle. Americans accept many limits on their property rights, but the idea that they could be arbitrarily deprived of their houses to accommodate a well-connected developer was too much to bear.

The most important sentence in the Supreme Court's decision was the one saying, "Nothing in our opinion precludes any state from placing further restrictions on its exercise of the takings power." That opening quickly sparked a movement to restore the constraints on government power that the Supreme Court eliminated.

This month, the U.S. House of Representatives approved a bill to bar state and local governments from taking property for economic development. Texas, Ohio, Alabama and Delaware have passed laws aimed at curbing such seizures. The Institute for Justice, a libertarian public-interest law firm that challenged the New London project, says it's working with lawmakers in 38 states on similar legislation.

A strange coalition has sprung up to lobby for such measures, ranging from the NAACP to the American Farm Bureau Federation. In the House, the cause brought together liberal Rep. John Conyers, a Democrat from Michigan, and conservative Rep. Tom DeLay, a Republican from Texas, who normally can't agree on whether the pope is Catholic.

For now, the momentum is on the side of those who favor limits on the use of eminent domain. The supporters of aggressive, government-sponsored redevelopment thought they had won the war when the Supreme Court came down on their side. But it may turn out they just found another way to lose.

Steve Chapman is a columnist for the Chicago Tribune. His column appears Mondays and Wednesdays in The Sun. His e-mail:

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