The Architect of Tyranny: The Supreme Court and the Power of Eminent Domain by

The Supreme Court’s opinion in Kelo v. City of New London undermines private property rights. In Kelo, the New London government drafted an economic plan for a ninety-acre development park. The plan identified parcels for condemnation. The city stated that tax revenues may increase, due to new, wealthy businesses-including the Pfizer Corporation-scheduled to build on the condemned location. The city government concluded that the urban renewal project may improve the economic conditions ofthe area. The question presented to the United States Supreme Court is: whether an economic taking is constitutional? The Court concluded that economic taking is constitutional.

The Takings Clause of the Fifth Amendment states: “private property [shall not] be taken for public use without just compensation,” The Takings Clause originates from the Magna Carta which recognizes the absolute security of property from encroachment by the government. The Magna Carta states: “[n]o freeman shall be…deprived of his freehold…unless by the lawful judgment of his peers or by the law of the land.” In his Commentaries, Blackstone writes that”the right of property [is] absolute…which every man is entitled to enjoy.” The veneration for property reaches its philosophical and intellectual height with John Locke. Locke states in his Second Treatise: “the great and chief end…of Men uniting into Commonwealths, and putting themselves under Government, is the Preservation of their Property.”

In 1792, James Madison continued the legacy of Locke and Blackstone, writing in the National Gazette, he states: “A man is said to have a right to his property, he may be equally said to have a property in his rights. Where an excess of power prevails, the property of no sort is duly respected. No man is safe in his opinions, his person, his faculties, or his possessions […] Government is instituted to protect the property of every sort; as well that which lies in the various rights of individuals, as that which the term particularly expresses. This being the end of government, that alone is a just government, which impartially secures to every man, whatever is his own. [Property is not secure when it] is violated by arbitrary seizures of one class of citizens for the service of the rest.” The Takings Clause places property beyond the reach of the sovereign, recognizing that any conflict between the sovereign and an individual, regarding the dominion and control of the property, is resolved in favor of the individual. The security of life, liberty, and the property is the primary end of government and the social compact.

Government has the power to take property so long adjust compensation is paid, in four main circumstances. First, the government can take the property if the property is used by the government. Such examples are a nuclear facility or military base. Second, the government can take property giving it to a public entity. Public highways are such examples. The public physically uses the area, Third government can take properly allowing common carriers to use it for the public advantage. Fourth, the government uses the power of condemnation to remove blighted areas, nuisances or slums. In the past, to accomplish such a taking, the government combines the Takings Clause with the police powers of the state to protect the health, safety, and welfare of its citizens. However, the collision of these two concepts-the Takings Clause with the Police Powers-is misapplied. To take property the government must give just compensation; however, the removal of a nuisance is justified under the police powers of the state, which requires no compensation. Therefore the Taking Clause and police powers share little jurisprudential connection, The Kelo rationale ignores the traditional uses for eminent domain, placing property at the mercy of economically powerful groups.

The Takings Clause is a limitation on government power, not a grant of power-it bars irrational government action, placing meaningful limits on the authority of the government to take property without the owner’s consent. The “public use” provision of the Takings Clause demands that any taking of private property provide public goods, benefiting all members of the public equally. The “Just compensation” provision of the Takings Clause ensures that the social cost of taking is not focused on an individual owner. The government may take property only when it is necessary. Property is an inviolable right, which includes a right to exclude every individual: this is the longstanding, traditional rule in American law.

Kelo permits a local government to take property from a private owner and give it to another. In essence, one class of citizens with a greater political pull can vote away the property rights of another, less influential group. Any transfer of property from A to B is per se unconstitutional, especially when the beneficiary is a private entity-this formulation is “against all reason and justice,” The Constitution prohibits such a transfer, even if compensation is paid. The property owners in Kelo are forced to surrender their homes, forfeiting their property, not to benefit the public, which the Constitution demands, but rather, to benefit private parties and corporations.

Such an arrangement will lead to economically powerful and politically influential groups, endlessly invading private property under the rhetoric and guise of the greater good.

The Constitution forbids the taking of private property for private benefit. A private taking is not rationally related to a public purpose and serves no legitimate government interest-it does not fit squarely within the original meaning of the Takings Clause.

The Takings Clause of the Fifth Amendment states: “nor shall private property be taken for public use without just compensation.” The Kelo opinion switches the demanding language of “public use” for the broader language of “public benefit” or “public purpose.” The “public use”, provision is narrowly drawn and has an exact meaning. The meaning of “public benefit” is a deferential standard. By using the language “public benefit” the Court expands the original meaning of “public use.” The language of the Constitution suggests that any benefit to the public is incidental to the rights of property owners. Kelo tums this logic on its head, allowing the public interest to trump private rights.

An amicus curiae brief filed by the Pacific Legal Foundation (PLF), puts the principle another way. The PLF brief states “Good fences make good neighbors, and one of the strongest legal “fences” in the Constitution is the public use clause.

It prohibits citizens from using the power of eminent domain to take their neighbors’ land for their own private benefit […]  The phrase means that respect for each other’s privacy and individuality reinforces the sense of goodwill that makes for a healthy community.”

When the power of the state and the fear that cometh along with the arbitrary seizure of property are combined, the virtues of trust, harmony, and friendship-(necessary to sustain civilization)-are destroyed. Fear and corruption take root. The right to pursue one’s happiness collides with the tyranny of mindless government bureaucrats, bent on designing the economic structure of the community. Underlying every government justification to improve collective happiness remains this simple, but a timeless reminder: “Absolute power corrupts. We are the STATE and you, the individual, are nothing.” When the boundaries of personal freedom erode, only one natural right withstands the abuse inflicted by despotic governments-Rebellion.

The most abusive portions of Kelo read as excerpts from The Communist Manifesto. The Court questionable application of the public purpose rationale is merely the first assault on the Takings Clause. The Court also justifies the government’s taking, deferring to the state legislatures’ judgment about what constitutes a public purpose. By deferring to the legislatures’ determination and definition of public purpose, the Court abdicates its judicial role. When a law or government action is in conflict with the text history and structure of the Constitution, any deference to a legislative judgment is a sanction of tyranny.

The Court acquiesces its power to the legislature, undermining its own legitimacy as a protector of individual rights. By setting one private entity against another, the Court becomes an impartial arbitrator of special rights for some and unequal rights for others-this jurisprudence, at best, is antidemocratic, un-American, and anti-individual.

Kelo permits the government to serve as an intermediary between larger businesses, not able to buy property on the open market, and individual property owners, not willing to sell. Rent seeking is the process by which private parties use government power to their advantage, securing benefits at the expense of less powerful groups. If a private entity can’t buy property on the open market, then any government intrusion into the private affairs of individuals is corrupt and unfair. When government and businesses work together, in concert, to deprive owners of their property, the only outcome of such cooperation is the arbitrary seizure of property. Capitalism gives property owners the right to keep the property as long as the owner desires it, and to dispose of it based on individual judgment. The Kelo opinion allows the government to move into the marketplace, with the power of an eminent domain, in order to transfer property.

Freedom means an individual possesses the right to voluntarily choose the best, most suitable private means of securing life, liberty, and property. By degrading this concept of individual freedom and the natural right of private property, the United States Supreme Court is The Architect of Tyranny.