Property Rights Imperiled

The legal arguments heard before the US Supreme Court on Tuesday in Kelo vs. City of New London have far more importance than the mainstream media imparts to them. At question in this case is the right of private property - not its use, but its very possession - by private citizens.

Residents trying to hang onto their homes in a working class neighborhood of New London, Conn., are waging a battle in the Supreme Court over their city government's attempt to seize property for private economic development.

Susette Kelo and several other homeowners filed a lawsuit after city officials announced plans to bulldoze their residences to clear the way for a riverfront hotel, health club and offices. The residents refused to move, arguing it was an unconstitutional taking of their property.

Eminent domain was originally conceived to empower government to acquire property for use in projects of clear national security or infrastructure importance - highways and railroads being two examples. But various municipal governments have siezed on eminent domain to accomplish by fiat what they could not achieve by persuasion.

The court said in 1954 that it is legal for urban renewal to encompass non-blighted commercial buildings in a blighted neighborhood. In 1984, the court upheld Hawaii's land reform law that broke the grip of large landowners, with property being taken and then resold to others.

More recently, many cities and towns have been accused of abusing their authority, razing nice homes to make way for parking lots for casinos and other tax-producing businesses.

In a recent article, Larry Salzman and Alex Epstein draw a more detailed picture of the people pitted against the town of New London, and the principle at risk in this case:

The seven property owners on the side of Kelo are the last remaining of more than 70 families whose homes and businesses were targeted for demolition several years ago by the city of New London, Connecticut, to make room for a 90-acre private development. The story of one of the owners, Susette Kelo, is representative. Kelo, a nurse, bought and painstakingly restored a home that initially was so run-down that she needed to cut her way to the front door with a hatchet. After she had achieved her dream home, she was informed in November 2000 by the local government that her home was condemned, and ordered to vacate within 90 days. She and the other owners remain in their homes only by the grace of a court order, which prevents eviction and demolition until their appeals are exhausted.

What justifies this treatment of Kelo and the other owners, who simply want to be free to live on their own property? The seizures and transfers, the government says, are in "the public interest"--because they will lead to more jobs for New London residents and more tax dollars for the government. This type of justification was given more than 10,000 times between 1998 and 2002, and across 41 states, to use eminent domain (or its threat) to seize private property. The attitude behind these seizures was epitomized by a Lancaster, CA, city attorney explaining why a 99¢ Only store should be condemned to make way for a Costco: "99 Cents produces less than $40,000 [a year] in sales taxes, and Costco was producing more than $400,000. You tell me which was more important?"

Urban development plans may be useful or necessary - though in many cases they are neither, serving only to benefit those who have financed local politicians - but should they trump the property rights of private citizens? And if so, at what cost? Private property acts as a curb on government power. It's diminishment represents a dangerous expansion of state power over the citizen. Salzman and Epstein rightly conclude:

If the Supreme Court rules against the property owners in Kelo, then no one's home or business is secure. As Dana Berliner, an attorney for the owners, explains: "If jobs and taxes can be a justification for taking someone's home or business then no property in America is safe. Anyone's home can create more jobs if it is replaced by a business and any small business can generate greater taxes if replaced by a bigger one."

A victory for the town of New London might convince muncipal politicians that they need only the flimsiest excuse for ridding themselves of undesirable residents. Wealthy municipalities might decide to purge themselves of less advantaged neighborhoods by demolishing them in favor of higher tax-paying luxury developments. The same could prove through for neighborhoods and communities that support political parties opposite to that which controls city hall. Municipalities could achieve political conformity by simply replacing neighborhoods that vote the wrong way.