Monday, October 11, 2004

Movement is afoot to make the Constitution pivot on Marxist-like class distinctions when private property is taken for public use. The endeavor should be smartly defeated. The Constitution was framed under an inclusive political philosophy that celebrated the Benjamin Franklin’s axiom that if we do not all hang together, we shall all hang separately.

The government routinely destroys the blighted housing of the poor for urban renewal by wielding the power of eminent domain. The indigent are uprooted and frequently distraught, but are paid “just compensation” as required by the Fifth Amendment.

The taking of private property to eliminate urban eyesores was held constitutionally irreproachable by the United States Supreme Court 50 years ago in Berman vs. Parker (1954). Private property exponents, however, are insisting the middle and upper classes should be shielded from the government devastation and sacrifice for the common good that afflict the impoverished property owner.

In Kelo vs. City of New London, a case now pending in the high court, the argument is passionately made that to take stylish, as opposed to decrepit private property, to spark economic growth is not a constitutionally permissible “public use” demanded by the Fifth Amendment. The power of eminent domain, however, does not expand and contract like an accordion depending on the wealth of the owner whose property is taken.

In the United States, the hovel is as protected as the chateau from unreasonable searches under the Fourth Amendment. The Founding Fathers embraced William Pitt the Elder’s lecture to the House of Commons in 1763: “The poorest 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 King of England cannot enter — all his force dares not cross the threshold of the ruined tenement.”

In Berman, private property was taken in the District of Columbia for slum clearance and prevention. Blacks constituted 971/2 percent of the population dislocated by the redevelopment. Writing for a unanimous court, Justice William O. Douglas repudiated a cramped construction of public use.

He explained eminent domain may be invoked to make a community “beautiful as well as healthy, spacious as well as clean, well balanced as well as carefully patrolled.” Justice Douglas further elaborated that single properties which harbored no evils were not shielded from eminent domain if they fell within the boundaries of urban decay. When a piecemeal approach would handicap area redevelopment, then all properties within the region may be taken to facilitate an integrated plan: “[C]ommunity redevelopment programs need not, by force of the Constitution, be on a piecemeal basis — lot by lot, building by building.”

The Kelo litigation is a middle-class re-enactment of Berman. The city of New London, Conn., afflicted by economic distress and a slumping tax base, employed eminent domain in 2000 to take 90 acres downtown and waterfront private property.

The goal was to jump-start economic revitalization. A public development corporation would use the acquired properties to build hotels, new residences, office space, public walkways, and retail space. The development plan is estimated to create more than 2,000 jobs and raise the city’s revenue base.

The plan did not target a politically helpless or disfavored minority. Most owners within the 90-acre development area accepted “just compensation” for their properties without legal protest. Ten owners did not, and sued to enjoin condemnations of their properties. Economic uplift, they maintained, was a tainted eminent domain objective, in contrast to slum clearance, which largely displaces the poor.

Two plaintiffs testified to their deep and long personal attachments to their homes. One loved her house view and proximity to the water. Two owned their properties as business investments — rental apartments — for 17 and eight years, respectively. They had devoted much time, effort and money towards renovations.

The Connecticut Supreme Court unanimously denied that the Constitution prohibits the use of eminent domain to spur economic growth, simpliciter. The Fifth Amendment requires the government to pay owners a fair market price for their properties. The properties taken by government must be put to a “public use.” But as Adam Smith recognized in “Wealth of Nations,” public and private interests merge in free economies: “Every individual necessarily labors to render the annual revenue of the society as great as he can. He generally indeed neither intends to promote the public interest, nor knows how much he is promoting it. … He intends only his own gain, and he is in this, as in many other cases, led by an invisible hand to promote an end which was no part of his intention. … By pursuing his own interest he frequently promotes that of society more effectually than when he really intends to promote it.”

The United States Supreme Court should affirm the Kelo ruling, and rebuke the notion of class consciousness in the law of eminent domain.

Bruce Fein is a constitutional lawyer and international consultant at Bruce Fein & Associates and the Lichfield Group.

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