From the pages of
Sublette Examiner
Volume 5, Number 25 - September 15, 2005
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Eminent domain in spotlight

by Cat Urbigkit

Last week, the U.S. House Agriculture Committee chaired the first hearing in the House of Representatives on the potential effects of theU.S. Supreme Court's June 23 decision in Kelo v. City of New London, the controversial ruling that appears to give local governments greater eminentdomain power than many in Congress, and a growing number of Americans, believe they should have.

"Private ownership of property is vital to our freedom and our prosperity and is one of the most fundamental principles embedded in the U.S. Constitution. However, the Supreme Court's recent 5-4 decision in Kelo v.City of New London is a step in the opposite direction," said committee chairman U.S. Representative Bob Goodlatte. "This controversial ruling expands the ability of state and local governments to exercise eminent domain powers to seize property under the guise of 'economic development' when 'public use' is as incidental as generating tax revenues or creating jobs. By defining 'public use' so expansively, the court essentially erased any protection for private property as understood by the founders of our nation, leaving state and local governments with the ability to use eminent domain powers to take the propertyof any individual for nearly any reason."

American Farm Bureau Federation President Bob Stall mantestified before the committee, explaining: "Like all citizens, farmers and ranchers understand that circumstances can sometimes arise in which their land can be acquired for a legitimate public use. We cannot support the underlying philosophy of Kelo, however, in which private property can effectively be taken by the public for the profit of other private parties. The difference between legitimate uses of eminent domain and what is so objectionable in Kelo is the difference between building firehouses or factories, between courthouses or condominiums."

Stallman added: "After Kelo, no property is secure. Any property can be seized and transferred to the highest bidder."

"Agricultural lands are particularly vulnerable to thesetypes of actions," Stallman said. "There is nothing to stop farms that hav ebeen in families for generations from being taken for industrial developments ,shopping malls or housing developments. It is already happening. In one suchcase, Bristol, Connecticut, has condemned a Christmas tree farm and two homes for a future industrial park."

George Washington University Law School Professor Jonathan Turley pointed out that the public's reaction to the Kelo decision "is reassuring evidence that the public remains committed to principles of both private property and individual rights."

After the decision, 90 percent of polled Americans condemned the taking of private property for private development, Turley said. He noted that the decision "represents more than the mere opportunistic use of eminent domain power by a small Connecticut town. It represents a critical self-defining moment for the country. The Supreme Court essentially ruled that these controversies are merely political disputes best left to the political process. In doing so, the court abdicated any responsibility to protect citizens from the insidious work of factional interests."

Turley said he believes that the framers of the U.S.Constitution "would have been horrified" by the Kelo decision, quoting John Adams: "Property must be secured or liberty cannot exist."

For most Americans, the term "public use" seems perfectly clear and confined, according to Turley: "In the very least, it is a term that is clear as to what it is not: it is not private use. Historically, the use of eminent domain has been largely confined to obvious public uses such as highways, parks, military installations and the like."

Turley pointed out that until the recent high courtdecision, most Americans were unaware that eminent domain has been used to take property from one citizen and give it to another. Many states already have laws barring such use of eminent domain and state supreme courts have often interpreted their constitutions as excluding such takings from public use definitions.

"The home is perhaps the most protected place in theAmerican Constitution," Turley noted. "Yet, while we heavily restrict the ability to search or to enter a home under the Fourth Amendment, the court has now made it relatively easy to condemn and bull doze the entire home under theFifth Amendment. It is for this reason that eminent domain should be considered not a matter of property rights alone but individual rights."

Turley said that while the Kelo decision "obviously cries out for correction," a legislative correction will still leave the decision as a major precedent in narrowly defining the rights and legitimate expectations of citizens and their property rights.

"Until the decision is overturned or significantly curtailed, one of the most fundamental guarantees of the Constitution will be left as a privilege enjoyed at the pleasure of the government," Turley concluded. "Thus, while legislative responses can and should negate the effects of the decisions, the case itself will remain and undermine the expectations of citizens that the 'inviolability' of property rights remains a touchstone of our system."

In late August, the U.S. Supreme Court denied the homeowners' request to rehear the Kelo case, in which the court voted, in a 5-4 decision, to allow the use of eminent domain for private development. Propert yrights advocates are now turning to their state legislatures for relief from the eminent domain threat.

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