Homestead mailing list

[Tvoivozhd <tvoivozd AT infionline.net>]

*washingtonpost.com* <http://www.washingtonpost.com/>
*Despotism in New London*

By George F. Will

Sunday, September 19, 2004; Page B07

The U.S. Constitution, properly construed by a vigilant Supreme Court, 
prevents untrammeled power, which is the definition of despotism. But 
the human propensity for abusing power -- a propensity the 
Constitution's unsentimental framers understood and tried to shackle 
with prudent language -- is perennial. There always are people trying to 
carve crevices in constitutional terminology to allow scope for 
despotism. Such carving is occurring in Connecticut.

Soon -- perhaps on the first Monday in October -- the court will 
announce whether it will hear an appeal against a 4 to 3 ruling last 
March by Connecticut's Supreme Court. That ruling effectively repeals a 
crucial portion of the Bill of Rights. If you think the term "despotism" 
exaggerates what this repeal permits, consider the life-shattering power 
wielded by the government of New London, Conn.

That city, like many cities, needs more revenue. To enhance the Pfizer 
pharmaceutical company's $270 million research facility, it empowered a 
private entity, the New London Development Corp., to exercise the power 
of eminent domain to condemn most of the Fort Trumbull neighborhood 
along the Thames River. The aim is to make space for expensive 
condominiums, a luxury hotel and private offices that would yield the 
city more tax revenue than can be extracted from the neighborhood's 
middle-class homeowners.

The question is: 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? Connecticut's court says yes, which 
turns the Fifth Amendment from a protection of the individual against 
overbearing government into a license for government to coerce indi- 
viduals on behalf of society's strongest interests. Henceforth, what 
home or business will be safe from grasping governments pursuing their 
own convenience?

But the Fifth Amendment says, among other things: "nor shall private 
property be taken /for public use/, without just compensation" (emphasis 
added). Every state constitution also stipulates takings only for 
"public use." The framers of the Bill of Rights used language carefully; 
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.

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.

Fifty years have passed since the court considered whether the "public 
use" clause allows condemnation for private development. The 1954 case 
from Southwest Washington, D.C., concerned "urban renewal," as such 
social engineering was confidently called before it became accurately 
known as "Negro removal." To empower government to condemn slum property 
-- most dwellings had no baths, indoor toilets or central heating; the 
neighborhood's tuberculosis and syphilis rates were high -- the court 
held that "public use" can mean "public purpose" when the aim is to cure 
blight harmful to the larger community.

But the Fort Trumbull neighborhood -- what remains of it; many residents 
have been bullied into moving -- is middle class. /That/ is the 
"problem": Residents are not rich enough to pay the sort of taxes that 
can be extracted from the wealthy interests to which New London's 
government wants to give other people's property.

Another step in cutting the Constitution's leash on the awesome power of 
eminent domain came in 1981. Michigan's Supreme Court allowed the 
bulldozing of the Poletown neighborhood of Detroit -- more than 1,000 
residences, 600 businesses and many churches -- so the property could be 
given to a more lucrative revenue source, a General Motors plant. In the 
New London decision, Connecticut's Supreme Court relied on the Michigan 
decision, which was the principal precedent justifying seizure of 
individuals' properties to increase tax revenue.

But just 149 days after Connecticut's court ruled, Michigan's Supreme 
Court unanimously reversed the Poletown decision, denouncing it as "a 
radical departure from fundamental constitutional principles." In 
considering whether to take the New London case, the U.S. Supreme Court 
surely sees, at a minimum, the dangerous emptying of meaning from the 
Fifth Amendment's "public use" provision.

If the 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.

/georgewill AT washpost.com/ <mailto:georgewill AT washpost.com>

© 2004 The Washington Post Company