Theft by government

Terry Jeffrey
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Posted: Jun 29, 2005 12:00 AM

As the nation was waiting to see where the Supreme Court would tolerate displaying the Ten Commandments, the court violated one.

 The Decalogue says, "You shall not steal." It is a timeless precept the Framers targeted at government's equally timeless propensity to covet what belongs to the citizens when they wrote in the Fifth Amendment, "... nor shall private property be taken for public use without just compensation."

 In Kelo v. New London, the court shredded both commandment and amendment. The City of New London, Conn., it said, could take an elderly couple's home, and the homes of their neighbors, even though the city does not intend to put the condemned properties to "public use" as that term was understood when the Fifth Amendment was framed -- i.e., building a road, courthouse, etc. Instead, it will hand them to a private developer for a project including a hotel and office buildings.

 The homeowners argued the city was violating the Fifth Amendment's "public use" clause by taking their property for "private use." Justice Clarence Thomas (who joined with Sandra Day O'Connor, Antonin Scalia and Chief Justice William Rehnquist in dissent) agreed. "If such 'economic development' takings are for a 'public use,' any taking is, and the court has erased the public use clause from our Constitution," wrote Thomas.

 Just whose property will New London give to a private developer?

 The Ciavaglia family -- according to a brief filed by the Institute for Justice, which represented the homeowners -- moved from Italy to New London's Fort Trumbull neighborhood in the 1880s. In 1901, they purchased the house, where, in 1918, Wilhelmina Ciavaglia was born. In 1945, Wilhelmina married Charles Dery, and for 60 years the couple has lived in that home.

 Their son Matthew lives next-door with his wife, Sue, and son, Andrew. Their home was given to Matthew as a wedding present by his grandmother. "Before they were married, the younger Dery couple gutted the building and rebuilt it, hand-routing and sanding every piece of woodwork themselves," The Hartford Courant reported in February.

 Susette Kelo lives nearby, in an old Victorian she bought in 1997 and renovated. Her porch overlooks the Thames River -- a vista she loves and shares with her husband, Tim, who was disabled in a 2002 car accident. "Tim can no longer work," reported the Courant, "and Sue, to make ends meet, has two part-time jobs in addition to her work as a registered nurse in the cardiac care unit of a local hospital."

 Could any house be more a home than the Dery and Kelo homes? Could the government commit a deeper offense against the right of private property than to seize these homes for a developer?

 This is theft by government. But it is also something worse: It is a frontal assault on the primacy in our culture of the privately owned family home, the universally sought-after symbol and stronghold of American liberty. In authorizing this larceny, the five justices in the court's majority -- J.P. Stevens, Anthony Kennedy, Stephen Breyer, Ruth Ginsburg and David Souter -- have revealed where true liberty ranks in the liberal judiciary's hierarchy of values.

 If the Fort Trumbull families had been members of an endangered animal species, their homes might have been spared. Had New London tried to bulldoze bog-turtle habitat, liberal judges likely would have blocked it.

 If the buildings had not been family homes, but "family planning clinics," where abortions were performed in the name of a "right to privacy," liberal judges would at least have been conflicted.

 But because New London believes it can extract more tax money from a hotel-and-office development than it can from certain homes, the Supreme Court will let the city take the homes and destroy them. What a blighted view of public welfare New London and the court have adopted: An office building that can be built somewhere else -- if there is a market for it -- can never be as rich a community asset as the roots set down by Fort Trumbull's families.

 These families were loyal to New London, but New London was not loyal to them.

 The value of a private home, in Fort Trumbull -- or any American town -- cannot be counted in dollars and cents. It is sovereign territory, where law-abiding people sit free and independent, beyond the reach of a constitutionally limited government.

 Or so it used to be.