Paul Jacob

It's like a bad dream, or a summer disaster movie. But this is real. We live under a regime that can and often does grab our homes and small businesses to create what politicians call "economic development." The process is simple: the government takes our property, pays us what it thinks the property's worth, and then hands our property ? in finely crafted "sweetheart deals" ? to developers and big corporations that will produce greater tax revenue.

The big government majority on the U.S. Supreme Court ? Stevens, Breyer, Souter, Ginsberg and Kennedy ? just gave eminent domain abuse the thumbs up in the case of Kelo et al, v. City of New London et al. The politicians of New London, Connecticut, sought to take Ms. Suzette Kelo's home, along with many others, to facilitate the building of a private retail and residential complex that would house a big research facility for Pfizer, a pharmaceutical company.

"The City has carefully formulated an economic development plan that it believes will provide appreciable benefits to the community," Justice John Paul Stevens wrote for the majority, "including ? but by no means limited to ? new jobs and increased tax revenue." [Emphasis added.]

Castle or Revenue Stream?
But what is the implication of the Kelo ruling? What message does it send to the financial wizards running local governments nationwide, slickers who have flocked to such schemes, sacrificing small businesses and the homes of poor and middle-class citizens for more tax revenue?

Justice Sandra Day O'Connor makes it very clear in her dissent: "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. As for the victims, the government now has license to transfer property from those with fewer resources to those with more."

This is not an isolated case of politicians winning and the people losing in one small town in Connecticut. This is happening all across the nation. Local officials looking to boost their tax take through eminent domain like a vampire looks for fresh neck arteries.

Today, no homeowner is safe anywhere in America, because homes don't produce as many jobs or pay as much in taxes as businesses do.

Churches, Beware
Politicians' lust for money doesn't stop with homeowners and small businesses, though. Sometimes churches get in the way. Churches don't even pay taxes. No revenue stream for politicians at all. Uh-oh.

In Cypress, California, the city pushed the Cottonwood Christian Center off its land to make way for a Costco superstore. The church paid no taxes; Costco and its customers would pay plenty.

Steve Greenhut, author of Abuse of Power: How the Government Misuses Eminent Domain (Seven Locks Press, 311 pages, $17.95), highlighted the arrogance of eminent domain power run amok in Cypress:

City officials did not dress up what they were doing in legalistic language. They were brazen in their goals. They ridiculed church members at public meetings. They bragged about their ability to use eminent domain for whatever reason they chose, and they made it clear that the government's desires should take precedence over the desires of "a narrow special interest," which is how city officials repeatedly referred to the church.

Recently, the Washington Post ran a story about growing friction between churches and government in Prince George's County, Maryland. Churches and synagogues, mosques and temples are operating on property that, if taxed, would give local politicians $9 million more dollars to spend each year. Already, the council has been using zoning regulations to block the growth of churches.

"We don't oppose churches," Council Chairman Samuel Dean told The Post. "The concern we have is that sometimes churches eat up a lot of land that could be used for other things."

Another council member offered, "None of us are against God." But added: "We're losing tax money and retail."

What protection do the churches have now?

Activism for Me, Restraint for You
To add insult to injury, the ruling junta on the court even went so far as to coyly dress this treachery up as judicial restraint. For the majority, Justice Stevens wrote, "Without exception, our cases have defined that concept [of public use] broadly, reflecting our longstanding policy of deference to legislative judgments in this field." [Emphasis added.]

Don't be fooled. Deference to legislative bodies may be restraint of judicial power, but no restraint for any other kind of government power is being suggested. In this case judicial restraint means a general increase in government power.

The Fifth Amendment to the U.S. Constitution contains what has come to be known as the Takings Clause: "nor shall private property be taken for public use without just compensation." As Justice Thomas argued, "The Takings Clause is a prohibition, not a grant of power."

Eminent domain, an awesome and dangerous power even for truly public uses, was restricted by the Bill of Rights to only truly public purposes. But instead, the Court majority expanded the meaning of "public use" to encompass "politician use." Certainly, the only meaningful public benefit is more tax dollars collected and spent by politicians. The public gets whatever trickle down benefits come of this government spending. Lucky us.

The term "public use" ceases to have any real meaning under this tortured logic. "When the government takes property and gives it to a private individual, and the public has no right to use the property," Thomas writes, "it strains language to say that the public is 'employing' the property, regardless of the incidental benefits that might accrue to the public from the private use."

But the Court interprets all government power as broadly and actively as possible. In the recent medical marijuana case, the federal government's power to intervene was predicated on the Commerce Clause, even though no interstate commerce was affected. Thus, as Thomas dissented in that case, "If Congress can regulate this under the Commerce Clause, then it can regulate virtually anything ? and the Federal Government is no longer one of limited and enumerated powers."

When it comes to the Bill of Rights, the Court reads specific statements of protections for the rights of citizens and limitations on government narrowly, restraining itself so that it cannot protect citizens from government power turned tyrannical.

Term limits supporters may notice that the court breakdown in Kelo is the same as in U.S. Term Limits v. Thornton. In the latter case, the Court majority certainly didn't mention any "deference to legislative judgments." The Court struck down the legislative judgments of 23 states that had passed congressional term limits.

But of course all these judicial decisions are absolutely consistent. They actively expand government power whenever citizens threaten to exert some control over it. And when governments kick John Q. Public in the teeth, the black robes stand aside, in "judicial restraint."

Facing Facts
This decision, even as it mocks us, also reminds us of an important fact. "We emphasize that nothing in our opinion precludes any State from placing further restrictions on its exercise of the takings power," the majority said.

It reminds us of the fact that while our judicial system has been hijacked, so too have our legislatures and city councils become dens of thieves.

But citizens are fighting back:

  • In the high-profile Lakewood, Ohio, eminent domain case, citizens stopped the city through two voter initiatives. Twenty-four states have some form of voter initiative and so do most cities.
  • Last year, the Michigan Supreme Court declared that "economic development" alone was not justification for taking private property. This reversed the principles of the 1981 Poletown case, when they allowed a neighborhood to be razed to make way for a General Motors plant.
  • And in March of this year, Utah citizens pressured their legislature to pass the first state law barring the use of eminent domain by redevelopment agencies.

The Kelo decision tells us how predatory our government has become. The America Dream, cut into and carved up by so many politicians, was this week struck down by the courts. But we're not giving in to them. We must get it back.


Paul Jacob

Paul Jacob is President of Citizens in Charge Foundation and Citizens in Charge. His daily Common Sense commentary appears on the Web and via e-mail.