Judicial vandalism

This wasn't supposed to happen here

[Reprinted from Issues & Views September 20, 2004]

"Does the Constitution empower governments to seize a person's most precious property -- a home, a business -- and give it to more wealthy interests so that the government can reap, in taxes, ancillary benefits of that wealth?" So asks columnist George Will in "Despotism in New London" (Washington Post, 9/19/04). Will is referencing another ugly case of government abuse of eminent domain -- this time in New London, Connecticut.

Residents of the Fort Trumball neighborhood of New London find themselves involuntarily thrust up against what Will calls "the life-shattering power wielded by the government." Fort Trumball lies along the Thames River, and its middle class home owners and small business proprietors have been fighting since 2000 to save their homes and businesses, after the city notified them of its desire to confiscate their properties.

In the late 1990s, the Pfizer Pharmaceutical Company moved next door to the Trumball neighborhood, with the long-range intention of enhancing the region around it, to fit its needs. Along with other eager developers, Pfizer has gotten the city of New London to agree to condemn miles of beautifully maintained acreage, in order to make space for upscale condominiums, a luxury hotel, and private office buildings. All of these new entities would yield more tax revenue in a year than could ever be extracted over several years from middle class homeowners.

When the framers of the Constitution specifically wrote that private property can be taken from citizens, with just compensation, and only for "public use," George Will believes that they were using language carefully. He writes, "Clearly they intended the adjective 'public' to restrict government takings to uses that are directly owned or primarily used by the general public, such as roads, bridges or public buildings." And adds, "Every state constitution also stipulates takings only for 'public use'."

Last March, the Connecticut Supreme Court ruled in favor of New London's city government, giving it a green light to take the properties on behalf of the various commercial interests. The residents filed an appeal to the United States Supreme Court and are currently awaiting the court's decision. Will describes the cunning use of language by government bureaucrats, as they justify their despotic seizure of private property:

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.

A spokesman for the Institute for Justice, a public interest law firm that is representing the New London residents, affirms Will's observation:

No one -- at least no one besides lawyers and bureaucrats -- would think "public use" means a casino, condominiums or a private office building. Yet these days, that's exactly how state and local governments use eminent domain -- as part of corporate welfare incentive packages and deals for more politically favored businesses.

Will concludes:

If the [Supreme] 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.

To learn more about the issue of eminent domain and the steps being taken to protect citizens' private property, visit the website of the Castle Coalition, an affiliate of the Institute for Justice.

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