The state of the Fifth

Veteran columnist and court watcher James Kilpatrick is very encouraged by recent developments in the war against government abuse of its 'eminent domain' power. He cites the recent unanimous decision by the Michigan Supreme Court to reverse its infamous 1981 "Poletown" ruling (discussed recently in this blog). Poletown set a major precedent for local governments that wished to seize private property for the benefit of other private entities (developers, manufacturers, major retailers) that promised jobs and/or increased tax revenues.

Such practices clearly violate both the spirit and the letter of the fifth amendment, which permits property seizures (with just compensation, of course) only for the purpose of legitimate "public use" -- meaning roads, firehouses, schools, and other things needed in order for the local government to perform its essential, legitimate duties. Kilpatrick notes that public officials, in an attempt to justify the abuses, have subtly altered the plain meaning of "public use":

In words every schoolboy can understand, the amendment says that government may not take private property for "public use" without payment of just compensation. The key words are "public use." They are not difficult words. They are simple words. Their definition requires no law degrees.

Notice that the Constitution does not speak gauzily of "public purpose" or "public benefit." It speaks with perfect clarity of "public use." Except for the power to declare war, the power of eminent domain is the most essential and most dangerous of all powers vested in government. It is perilous precisely because it is most often employed by good men seeking to do good.

The terms "public purpose" and "public benefit" surely encompass the noble goals of more jobs and more tax revenue, so it is natural that officials prefer this spin on the fifth amendment.

The good news is that the Michigan ruling may be only the beginning of a sustained challenge to this corrupt interpretation. Kilpatrick reports that a Connecticut plaintiff is petitioning the U.S. Supreme Court to rule on the constitutionality of another private-to-private land seizure.

Here's to hoping that the Supremes accept the case, and that they have the good sense to restore reason and sanity to the fifth.