Lies the government told you by Andrew Napolitano (big screen ebook reader .TXT) 📕

“public use” and “just compensation” requirements were put in place by the drafters of the Constitution in order to limit governmental power and protect personal property rights. The Fifth Amendment, which addresses government takings, was drafted with the lingering memory of British soldiers taking the colonists’ property and was therefore put in place to ensure that these indiscriminate takings would not continue to occur.9 Let’s take a look at the way the government has perverted this meaning.

Over time, courts have morphed the public use requirement into something much broader, called public benefit. In fact, the public use requirement has all but been obliterated. While it had previously meant that the use was “in common and not for a particular individual,” cases whittled the requirement down to basically whenever the court thought the public could benefit from the taking.

The drafters’ intention has been almost completely abandoned. As I wrote about in the beginning of this chapter, most recently, the Supreme Court of the United States, in a 5 to 4 opinion in the case of Kelo v. New London (2005),10 took the limiting term “public use” and expanded it to permit the City of New London, Connecticut, to take over a nine-acre residential neighborhood and give it to a private developer.11 The City created the New London Development Corporation to buy the land and find a developer that would build an “urban village” to attract shoppers and tourists to the City.12 The City used this proposed plan along with financial incentives to entice Pfizer, a giant pharmaceutical company, to build a headquarters in New London.13

The idea that a city government, or any government for that matter, can justify a taking of one’s private property to give to another private entity for the local government’s economic benefit is one that utterly obscures the distinction between takings for private and public use, and one that visits instability on all property owners and omnipotence on any government that has jurisdiction over the real estate. It also suggests that the government can take private property if it believes that the land can be put to better use. Justice O’Connor’s dissent in Kelo rightfully took a frightened tone toward that possibility. She wrote, “. . . [The Public Use Clause] has no realistic import. For who among us can say she already makes the most productive or attractive possible use of her property? The specter of condemnation hangs over all property. Nothing is to prevent the state from replacing any Motel 6 with a Ritz-Carlton, any home with a shopping mall, or any farm with a factory.”14 If only the “highest and best use” of a particular property is honored, the Kelo Court essentially fostered a type of slavery where a landowner is forced to labor over property against his will.

Justice Thomas also dissented in Kelo, pointing to both the short and long-term consequences of the Court’s ruling. He discussed the immediate loss that property owners feel when they are displaced from their homes and uprooted from their communities. Furthermore, he stated that this is not something for which the government can realistically provide compensation because a “subjective value” is involved. Thomas then articulated some of the daunting long-term consequences involved when the government allows takings for economic development. Harkening Jefferson, he noted, “Allowing the government to take property solely for public purposes is bad enough, but extending the concept of public purpose to encompass any economically beneficial goal guarantees that these losses will fall disproportionately on poor communities”15 (emphases added). Justice Thomas’s dissent touches upon one of the most sorrowful themes underlying the Kelo case: by choosing to hand the land over to the developer, the Court rejected the homeowners’ personal values in favor of the government’s economic value; the choice of personal values is protected by the Natural Law.

The choice of personal values (a book or a TV, a car or a bicycle, early to bed or up all night) is absolutely immune from government interference unless the exercise of that choice substantially and unfairly interferes with another’s natural rights. The use to which one puts one’s real estate (cottage or mansion, grass or Astroturf, indoor or outdoor plumbing) is a personal value. Moreover, the traditional bundle of rights encompassing, and even defining personal ownership of real estate are the right to use, the right to alienate, and the right to exclude; the last of these encompassing even the right to exclude the government.

In Kelo, Uncle Sam is saying that the government can take away your land, simply because it doesn’t value the way you use it. Kelo also gives the government an easy target, by allowing the government to infringe unduly upon the rights of poor people. Many of these people worked very hard to buy these homes, to achieve their own version of the American Dream. Who is the government to take it away?

(We) Give, and (They) Take

Although the Kelo case signaled the most drastic expansion of government power under the Takings Clause, the government had been testing the water for decades. In the 1954 U.S. Supreme Court case Berman v. Parker, the federal government razed a local store so that a private company could build a redevelopment project. In that case, the Court paid little attention to the “public use” requirement, and instead decided that the Washington, D.C., area where the store was located was blighted, even though the store itself was not blighted. Kelo took a further leap because there was no accusation that the Connecticut neighborhood was blighted; the city merely felt that government-approved developers could improve the area economically.

In Poletown Neighborhood Council v. City of Detroit (1981), the Supreme Court of Michigan permitted the government of the City of Detroit to wipe out a community in order to let General Motors build an assembly plant. (Wow, the government helping out GM? Who would’ve thought!? But more on this later . . . ) As a result of this massive taking, 3,468 people were ousted from their homes.