Private Property Rights Lost in Court Today The Political HereticPrivate Property Rights Lost in Court Today: By The Political Heretic

"... the Court today significantly expands the meaning of public use. It holds that the sovereign may take private property currently put to ordinary private use, and give it over for new, ordinary private use, so long as the new use is predicted to generate some secondary benefit for the public–such as increased tax revenue, more jobs, maybe even aesthetic pleasure. But nearly any lawful use of real private property can be said to generate some incidental benefit to the public. Thus, if predicted (or even guaranteed) positive side-effects are enough to render transfer from one private party to another constitutional, then the words “for public use” do not realistically exclude any takings, and thus do not exert any constraint on the eminent domain power. ...

Today nearly all real property is susceptible to condemnation on the Court’s theory. In the prescient words of a dissenter from the infamous decision in Poletown, “[n]ow that we have authorized local legislative bodies to decide that a different commercial or industrial use of property will produce greater public benefits than its present use, no homeowner’s, merchant’s or manufacturer’s property, however productive or valuable to its owner, is immune from condemnation for the benefit of other private interests that will put it to a ‘higher’ use.” 410 Mich., at 644—645, 304 N. W. 2d, at 464 (opinion of Fitzgerald, J.). This is why economic development takings “seriously jeopardize[e] the security of all private property ownership.” Id., at 645, 304 N. W. 2d, at 465 (Ryan, J., dissenting).

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. As for the victims, the government now has license to transfer property from those with fewer resources to those with more. The Founders cannot have intended this perverse result. “[T]hat alone is a just government,” wrote James Madison, “which impartially secures to every man, whatever is his own.” For the National Gazette, Property, (Mar. 29, 1792), reprinted in 14 Papers of James Madison 266 (R. Rutland et al. eds. 1983)." Justice Sandra Day O'Connor in Kelo v. New London

I really don't have anything to add. This was a disappointing verdict that only helps wealthy political contributors who want to make some money. As Justice O'Connor said in her dissenting opinion, any big corporation can make the claim that it will bring jobs into a given community, thereby negating any distinction in principle and practice between takings for "public" and "private" use. Get ready for political donations.

So what do we do now? Call your assemblymen and senators now and let them know that we want stronger legislation protecting our property, particularly when the taking involves the very places we live in. The Court said there is not Fifth Amendment right for higher protection, but that doesn't mean a state cannot by law grant that kind of protection.

http://www.law.cornell.edu/donors/solicit.php?http_referer=/supct/html/04-108.ZS.html

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