George Will

     The Connecticut court, like the courts of six other states, says the ``public use'' restriction does not really restrict takings at all: It merely means a taking must have some anticipated public benefit, however indirect and derivative, at the end of some chain of causation. Hence New London can evict Wilhelmina Dery from the home in which she has lived since her birth there in 1918.

     Fifty years have passed since the court considered whether the ``public use'' clause allows condemnation for private development. The 1954 case from southwest Washington, D.C., concerned ``urban renewal,'' as such social engineering was confidently called before it became accurately known as ``Negro removal.'' To empower government to condemn slum property -- most dwellings had no baths, indoor toilets or central heating; the neighborhood's tuberculosis and syphilis rates were high -- the court held that ``public use'' can mean ``public purpose'' when the aim is to cure blight harmful to the larger community.

     But the Fort Trumbull neighborhood -- what remains of it; many residents have been bullied into moving -- is middle class. That is the ``problem'': Residents are not rich enough to pay the sort of taxes that can be extracted from the wealthy interests to whom New London's government wants to give other people's property.

     Another step in cutting the Constitution's leash on the awesome power of eminent domain came in 1981. Michigan's Supreme Court allowed the bulldozing of Detroit's Poletown neighborhood -- more than 1,000 residences, 600 businesses and many churches -- so the property could be given to a more lucrative revenue source, a General Motors plant. In the New London decision, Connecticut's Supreme Court relied on the Michigan decision, which was the principal precedent justifying seizure of individuals' properties in order to increase tax revenues.

But just 149 days after Connecticut's court ruled, Michigan's Supreme Court unanimously reversed the Poletown decision, denouncing it as ``a radical departure from fundamental constitutional principles.'' In considering whether to take the New London case, the U.S. Supreme Court surely sees, at a minimum, the dangerous emptying of meaning from the Fifth Amendment's ``public use'' provision.

     If the court refuses to review the Connecticut ruling, its silence will effectively ratify state-level judicial vandalism that is draining the phrase ``public use'' of its power to perform the framers' clearly intended function. That function is to prevent untrammeled government power -- in a word, despotism.


George Will

George F. Will is a 1976 Pulitzer Prize winner whose columns are syndicated in more than 400 magazines and newspapers worldwide.
 
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