We don't expect the Supreme Court always to defer to the legislative process. We do expect the Court to implement the text of the Constitution as written, and that means defending our constitutional right to private property even when that requires knocking down a legislative action.
Some judges are getting the message. On July 26, 2006, the Ohio Supreme Court handed down a stunning unanimous decision against a $125 million development project in a Cincinnati suburb. This case, City of Norwood v. Horney, illustrates how abusive eminent domain seizures are motivated by local governments seeking new sources of revenue.
The city of Norwood had hoped to get $2 million a year in new taxes from the new property owners. The developer had already bulldozed every house on the site except three, including Joy Gamble's home, where she had lived for 35 years, raised her children, and hoped to remain for the rest of her life.
When the mayor of Norwood heard that the homeowners had won in the Ohio Supreme Court, he predicted that the city would run out of money by October, and it might actually have to lay off a government worker.
But the Ohio Supreme Court concluded that "economic benefits alone," such as increased taxes, do not justify a taking of private property. The court stated that "Ohio has always considered the right of property to be a fundamental right," and that property rights are "believed to be derived fundamentally from a higher authority and natural law."
However, legislation is needed in most states to prevent government from ruining private property while a dispute is going on. By the time Gamble won her appeal, she had been barred from her property for a year and a half, during which time the utilities were disconnected and the property vandalized and looted.
State legislatures should be alert to draft their new laws against governmental abuse of eminent domain to make clear that condemning authorities may not take possession of property until appeals are exhausted and the property is paid for, and that blight is defined as a danger to public health and safety (not mere underutilization or diversity of ownership).
The Ohio Supreme Court's decision underscores the fact that the U.S. Supreme Court is fallible and we have every right to criticize and work to overturn wrong decisions made by supremacist judges who think they can rewrite the U.S. Constitution.
Phyllis Schlafly is a national leader of the pro-family movement, a nationally syndicated columnist and author of Feminist Fantasies.
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