Supremes hear important eminent domain case

The infamous New London eminent domain case was finally heard by the U.S. Supreme Court this week. At issue is the question being asked in communities across the country: can a municipality (New London, Connecticut in this case) seize the properties of some private individuals and turn the properties over to another private individual simply because the latter will develop the land in a way that will generate more tax revenue? New London says, Of course we can.

The Constitution's Fifth Amendment declares: "private property [shall not] be taken for public use, without just compensation." Just compensation isn't really the issue here. Rather, what matters most is the evolution of the meaning of "public use". Originally the term referred to things related to infrastructure and the provision of necessary public services (in modern times this would mean things like roads, firehouses, schools, utilities, etc.).

Today, "public use" is interpreted to mean "the public interest", or "the greater good". In other words, any end deemed to promote "the greater good" of the community -- be it a new shopping center or hotel, a factory in a city with high unemployment, or simply more revenue for a cash-strapped city -- justifies the property seizure. Whatever the emotional appeal of these justifications, there simply is no rational way to read this interpretation into the Fifth Amendment.

James Madison, writing in 1792, had this to say about the government's responsibility:

Government is instituted to protect 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.

Madison isn't denying the possibility of seizures (with just compensation) for legitimate public use -- in fact, he acknowledges this reality later in the same essay. But, in saying that a just government impartially secures property rights, he is speaking against the kind of favoritism being practiced by the city of New London.

The Supremes will do our republic a tremendous favor if they issue a ruling that moves us closer to the original meaning of "public use". If, on the other hand, they rule in favor of New London, cities across the land will rightly take this as a green light to do whatever they please, and we can finally be rid of that bothersome notion that anybody really owns anything.


UPDATE: Knight of the Mind has a similar take, and also decries Republican inaction on the issue.