Thursday, June 23, 2005

Supreme Court Delivers Blow to Property Rights

In a 5-4 ruling issued today, the Supreme Court said that cities have the right to seize private property to advance private development interests. Basically, if a city thinks that a new shopping center built on your property would benefit the city, it can compensate you for your house, seize it and hand the property over to a private developer.

The Supreme Court’s rationale was that the greater economic needs of a community trump individual property rights guaranteed by the 5th Amendment.

This ruling makes me queasy. I don’t like the idea that a city can just take my house because a developer wants to build a hotel where I happen to live. Clearly, the Constitution allows the government to take property with due compensation for “public use.” But that has traditionally meant seizing property for the building of roads and public buildings and such. Taking property for private development is a pretty big leap and seems, well, wrong.

Interestingly, the four Justices who dissented (O’Connor, Scalia, Rehnquist and Thomas) are considered the most conservative of the Court’s justices. And yet their rationale was very populist in nature. O’Connor, in her dissent said:

"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."

That’s my fear exactly. This ruling permits wealthy developers to use city levers to do pretty much whatever they want. Developers already wield a good deal of political power and now the opportunity to abuse that power is greater than ever. I’m generally a big fan of development but not at the expense of people’s private homes and businesses. If someone doesn’t want to sell to a developer, the city shouldn’t be able to force them.

This is not a positive ruling.


At 12:24 PM, Blogger Joe Weedon said...

In most situations, I'd have to agree with you, Alan. However, a couple of specific cases to consider.

First, the proposed Peotone airport south of Chicago. The state has been buying up land for a few years to eventually build a third airport for the Chicago region. A few landowners have held out and are placing the future of the airport in doubt. The airport would be governed by a private regional authority (the same one that currently runs O'Hare and Midway).

A second case. The development of the hotel adjacent to the convention center in Washington, D.C. If I remember correctly, several of the local businesses refused to sell initially and the city was required to use its eminent domain powers to purchase the last few parcells of land for the hotel development. Again, the development is being done privately and the hotel will be run privately (either a Marriott or a Hyatt, I believe).

In both these cases, I would argue that the greater economic needs of the community are more important than the individual rights of property owners (who often hold out for extravagent sums of cash that far outvalue the value of the property absent the new development).

I would have preferred to see the Court set up a higher threashold for states to meet to allow them to seize property, but I do believe that there are cases when the good of society outweighs the property rights of an individual.

On privacy rights, I've got a different opinion believing strongly that an individual's privacy far outweights that of society.

At 12:39 PM, Anonymous Anonymous said...

>>>but I do believe that there are cases when the good of society outweighs the property rights of an individual.<<<

Never. Not in a million years is "the good of society" ever more important than the property rights of an individual. There is nothing more important to a society than an INDIVIDUAL's rights and liberties. Once you let the government decide that an individual loses the right to their property "for the good of society"... you are on the road to becoming the Soviet Union. Its a DANGEROUS, horrible situation. NOTHING in this country is more important than individual rights - and that includes property rights.

At 12:56 PM, Blogger Jdeer165 said...

Joe, I agree with you that there are cases where the community's needs are more important than an individual's private property rights. However, in the second example you state I do not believe that threshold has been met. The first one is a Public Purpose. The second is not.

However, with this decision, we don't even have to meet that standard. So long as the new use for the property creates new jobs and/or increases tax revenue the government can take your land. This is a terrible decision by the Court and will only serve to continue the erosion of individual rights in this country.

At 1:12 PM, Blogger Alan Stewart Carl said...


I would think that an airport could be considered public use pretty easily, just like a road would--thus being permitted under the constitution.

But a hotel? I don't think so. If property oweners want a ridiculous amount of money, well, that's the free market for you. Something is worth exactly what the buyer is willing to part with it for.

Now, in the case of the DC Convention Center I know some of the buildings in question were blighted propeties that, while "owned" were not lived in and were boarded up. Even the dissenters in this case agreed it is ok to seize blighted properties. But if a place is actually being lived in or is being used for a business--I gotta side with the individual.

At 1:23 PM, Blogger Joe Weedon said...

just throwing out a couple of examples where this was an issue.

I think the inclusion of a major hotel with meeting space is vital to the success of the DC Convention Center -- without it (and probably even with it), the center will lose money and the taxpayers will not only be on the hook for the construction costs but also the operations costs. A major hotel was a center piece of the redevelopment plan. Thus, I'd argue that this case does meet the threashold of a vital public interest -- because so many tax dollars have already been invested.

But, the bigger point has been well noted. The Court issued a blanket ruling that did nothing to increase the state's burden of proof before allowing personal property to be taken under the eminent domain clause.

At 1:30 PM, Anonymous corey said...

I'm definitely not a fan of this decision. I think there are certain cirucstances where there is a legitimate need of an entire community that does mean more than one person keeping a plot of land, but I think they are the exception and all other means need to be seriously considered before you take someones property.

I am afraid that we are going to see more situations like one that took place locally for me. In Coatesville PA, the city council tried to declare eminent domain with one family's farm so that they could build a golf course. Luckily for this family, they settled before this ruling came down, but I think the road was just cleared for more abuses of eminent domain.

At 1:42 PM, Anonymous Stephen Curtice said...

I just finished reading the majority and much of Justic O'Connor's dissent (I find it hard to read Justice Thomas' opinions; I think he needs to hire better law clerks). While I am still formulating in my mind whether this was a "good" or "bad" decision, I did note that something funny is going on. This one broke in the tradition "liberal/conservative" manner. Interestingly, each adopted the rhetoric of the other. The "liberal" majority emphasized that this is really none of the judiciary's business. That is, the decision of what is or is not a valid public use should be made by politically acountable people, not unelected members of the federal judiciary. I can see Scalia, Rehnquist and Thomas agreeing with that principle. As you noted, Alan, O'Connor's dissent invokes populist arguments, typically made by the "liberal" wing to counter the originalist constitutional arguments of the conservative wing. Just an observation. I think this opinion, and the rhetorical reversal it signifies, is a perfect example of Stanley Fish's insight that the oft-cited dichotomy between principle and predilection is meaningless. All principles are based on the author's predilections and all predilections are assumed based on principle.

At 1:56 PM, Blogger Robert Rouse said...

This is wrong. It's just WRONG!. Alan, I have to agree with you on this one. Pushing individuals out of the way so an already wealthy businessman can make more money . . . I'm at a loss for words. I hope the government, at the very least, makes sure the citizens who are forced off their property make a tidy profit off the deal or this is pure governemnt sponsored armed robbery!

At 2:15 PM, Blogger Sean said...

see, Alan there are areas where I agree with you (LOL).
I think this was a major blow to the rights of individuals. I think it is a furthering of the idea of "the common good" becoming more important than the individual.

if i remember correctly there were multiple sites available for the airport. There are also studies that question the need for a third airport in Chicago. That is not the same, as the only airport in Chicago, or even an expanding of O' Hare. There are huge questions about the viability of a third airport, and wethe rit is purely poltical. Isnt this in Jesse Jr's Congressional district??

what higher threshold? That the govt will need a really really big project to take peopels land aand give it to others? Both of your examples can easily be argued as not being in the better interest of the public.
what about the Constitution? not what people feel?

At 2:17 PM, Blogger Sean said...

thomas's dissent can eb hard to read, too many citations in there, breaks the reading up.
I have always found O' Connor to be one of the few who wrote in language that normal people could read and understand. She is very organized.

At 8:15 PM, Blogger Jdeer165 said...

Stephen Curtis said:
"This one broke in the tradition "liberal/conservative" manner. Interestingly, each adopted the rhetoric of the other. The "liberal" majority emphasized that this is really none of the judiciary's business."

I would disagree. The conservatives/originalists were very much following their expected line of reasoning. Since this issue is explicitly defined in the 5th Amendment of the Constitution. An originalist couldn't take any other view.

At 12:11 AM, Blogger Ted Carmichael said...

When campaigning for governor of Texas, George Bush talked about the importance of individual property rights. Here's a quote:

In October 1994, George W. Bush told members of the Texas Association of Business, "I understand full well the value of private property, and its importance not only in our state but in capitalism in general, and I will do everything I can to defend the power of private property and private property rights when I am the governor of this state."

Contrast what he said with what he actually did. In order to get the Texas Rangers staduim built, he helped force property owners to sell their land, about 270 acres total. The stadium itself needed about 17 acres ... the rest was given to the Rangers for commercial develop or to sell. Whole neighborhoods were destroyed to sweeten the deal, and Bush himself - with a 1.8% stake he bought for $600,000 - made about $15 million dollars when they sold the Rangers 4 years later. (Some of that money came from a larger equity stake - I think about 10% - in the rangers that was his reward for his part in the deal.)

The details may not be exactly right, but there are plenty of places on the web where you can read about this for more information. One article I read some time ago (I couldn't find it to cite, so take with a grain of salt) talked about how one sizeable neighborhood across the river from the stadium was taken. The Rangers promised to use it for baseball-related development. After the deal was done, they never made good on that promise, and ended up selling the land for a huge profit.

Anyway, thought you'd like to know where our President stands on the issue. (And if anyone has any links or information that tell it different, I'd be glad to read it. I certainly don't profess to have all the facts here.)

At 12:44 AM, Blogger Bill Crittenden said...

I like what Logan Clements is doing about this. He's going to make a point to David Souter, one of the justices who decided in favor of New London.

He's trying to take Justice Souter's house and use the landfor a hotel.

I don't think it will ever really work, but if someone has the intelligence to become a Supreme Court Justice, surely that person can get the message.,0,828232.story


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