Kelo v. New London City expands the public interest in a way that essentially ensures that no citizen’s property is safe for long.

Recently the Supreme Court ruled that it was perfectly okay for big developers to unilaterally deprive residents of their property provided they gave just compensation and it was for the public good.

This is a long-standing practice known as eminent domain and it has always been a highly emotional issue for citizens who perceive it as an exercise in the raw use of government power.

Let us recall, however, just how complicated this issue can be. There are many instances of the government exercising its might on behalf of general as well as specific interests — power companies, railroads, public roads, utilities, hydroelectric dams. In each case, individuals were deprived of their property in the name of the public good. In each case, special interests as well as the general public benefited — contractors, railroad companies, etc.

One of the best known decisions related to the issue is Berman v. Parker, in which the Supreme Court in 1954 ruled that the District of Columbia had the authority to confiscate land under the 5th Amendment in order to remove urban blight and to enhance community health. The 5th Amendment only required that the government respect due process and justly compensate those who were deprived of their property.

The most recent case, Kelo v. New London City, is more troubling because it expands the public interest in a way that essentially ensures that no citizen’s property is safe for long. In Kelo, the city powers decided they wanted to develop waterfront property owned by private citizens because it could be taxed more profitably. In supporting this action, the majority on the Supreme Court argued that the intent of the city was the public good and that the attempt to lift the economy through integrated development justified the use of eminent domain.

Justice Sandra Day O’Connor led the dissent, arguing that if enhancing taxes alone justifies taking property from private citizens, where does the power to confiscate stop? She noted that in both of the precedent setting cases cited by the majority, the exercise of the power of eminent domain was clearly in the public interest because the existing situations — horrible blight in one instance, extreme concentration of land in a few hands in the other, did unambiguous harm to the overall community.

Those supporting the condemnation policy in Kelo never argued that the well maintained homes of the residents posed any problem beyond standing in the way of plans by the city and private interests to exploit it .

Indeed, (they) could not so claim without adopting the absurd argument that any single-family home that might be razed to make way for an apartment building, or any church that might be replaced with a retail store, or any small business that might be more lucrative if it were instead part of a national franchise, is inherently harmful to society and thus within the government’s power to condemn.

In defining “public use” so expansively, Justices O’Connor and Thomas argued, the majority essentially erased any protection of private property as understood by the founders.

Even the argument that the community might benefit from the exercise of eminent domain in this instance is open to question. Is taxation by definition “in the public interest?”

What if additional revenues taken from the public are wasted, or the new development generates garbage that cannot be disposed of safely, or the local culture is compromised in such a way as to reduce “quality of life?”

Who is defining public interest in this case? In fact, it is being defined by two special interests — developers who hope to reap great profits and city authorities who hope to fill the coffers of their treasury with which monies they may or may not do the will of the local population.

Interestingly, it was the liberal members of the court who ruled in favor of the developers, thereby crystallizing one of the divides between conservatives and liberals. Had the land in question been wetlands, would the liberal members of the court have sided with developers? Probably not. They would have argued that the good of the many outweighed the wants of the few, and thus would have preserved the wetlands to ensure long-term environmental protection, rightly so I might add.

Larger community issues such as environmental health, sane development policies, and local culture are often ignored. Where there is major money to be made, there is always a government official or private developer ready to send a wrecking ball through our communities.

O’Connor and Thomas did a reasonable job of trying to define legitimate public use. But there was a time when we did not need the courts to tell us how treat our neighbors. In the hometown of my youth, an entire block was developed by the local YMCA save a single dilapidated home on one corner. The resident therein simply would not sell, and the city decided that driving this solitary resident from her home was not worth what might be gained. In those days, people cared what that resident thought and about her family history. At the very least, officials feared public reaction.

Folks are found of quoting William Pitt circa 1763:

The poor man may in his cottage bid defiance to all the forces of the crown. It may be frail; its roof may shake; the wind may blow through it; the storm may enter; the rain may enter; but the Kind of England cannot enter — all his force dares not cross the threshold of the ruined tenement.

In fact, government has always been tempted to sacrifice individuals on the altar of profit or power. With the advent of enclosure during Pitt’s time, masses of desperate peasants — once independent — were reduced to wage laborers or worse. Many fled to the great cities in search of work, and were discouraged from revolution only by welfare and poor laws that kept them — barely — from starving to death.

One commentator on the current case, Bruce Fein, writing in the Washington Times, drew precisely the wrong conclusion from all of this. He argued late last year that the court should be as determined to take the land of the rich as the land of the poor. I would argue, on the contrary, that only in the most extreme circumstances should rich or poor be forced to surrender their land or property to developers or the government. There should be an overriding justification whenever land is confiscated and public benefit should be so compelling as to remove reasonable doubt. The presumption should lie with the property owner.

Just as troubling are the philosophical assumptions interlaced in this case — that development and growth are, by definition, always good things. But are they? How many shopping malls, condo developments or golf courses do we really need? How many rural communities, forests, Everglades and wetlands must we destroy before we grasp the inherent value of these natural gifts? The late poet Archibald MacLeish, in his ironic poem “Let Us Destroy,” saw a future devoid of common sense:

Let us destroy the forests all
And set the wild land free
That the naked moon may walk on the hill’s shoulder
And the earth be seen.

Let us light in the green valleys a conflagration
That shall burn the willows away from the wet springs
And Leave the water to shine in the sun like a metal
And the moon to ring.

Let us make of the sunset grass and the flowers
And all the liked and lovely garments of earth
A great flame in the air till the naked body
Of life come forth.

The relentless pursuit of development for short-term profit and taxes is not a policy worthy of conservatives or conservatism. But until we start rethinking basic legal and philosophical assumptions, the future we bequeath to our children’s children may be as stark and as horrible as MacLeish imagines.

George Shadroui has been published in more than two dozen newspapers and magazines, including National Review and Frontpagemag.com.

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