- The Washington Times - Saturday, June 25, 2005

If you were Wilhelmina Dery and believed in the Fifth Amendment — no private property shall be taken for public use without just compensation — you might feel pretty secure in the house where your family has lived for more than 100 years, where you were born and where you and your husband have lived 59 years.

But the Supreme Court said this week you would be wrong. It ruled, 5-4, that the city of New London, Conn., acting through a private, nonprofit and unelected development commission, could seize your property, settle on compensation and turn your home, and your son’s next door, over to a private developer for an office complex, restaurants, shops and hotel.

New London, like many New England towns, has undergone tough times, and the five justices in the majority bought into the argument that the new jobs and higher tax revenues that presumably would flow from this economic development outweighed the private property rights of Mrs. Dery and six other families in the neighborhood.

Government seizure of private property for public use — schools, roads, military bases — is settled law. And there are cases — property that is hopelessly blighted or poses social harm — where public good rather than any specific use is at issue. But it has long been settled law that government could not seize property from A in order to give it to B.

Justice Sandra Day O’Connor had it right in her scathing dissent when she wrote: “Today the court abandons this long-held, basic limitation on government power. Under the banner of economic development, all private property is now vulnerable to being taken and transferred to another private owner … who will use it in a way that the legislature deems more beneficial to the public in the process.”

She was a little strong in saying the majority had effectively deleted the words “for public use” from the Fifth Amendment, but seizures by local governments on behalf of private developers are growing and she was right on the mark in saying the beneficiaries of this decision “are likely to be those citizens with disproportionate influence and power in the political process, including large corporations and development firms.” And not, she might have added, the Wilhelmina Derys.

It might seem unfair, even selfish, for a small group of property owners to stymie a private development project that promises large public benefits, but nowhere does it say people’s rights have to be convenient. This decision is a troubling incursion into the rights of private property.

Dale McFeatters is a columnist for Scripps Howard News Service.

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