takings

The One Test for a Supreme Court Justice
By Daniel G. Jennings
There is one test and one test alone that I would apply to any nominee for the U.S. Supreme Court: will they vote to over Kelo et. All vs. City of New London?
Kelo et. All v. City of New London is simply the worst Supreme Court decision since World War II and the greatest assault on individual liberties since World War II. Basically this decision states that your local government can condemn your property and seize for virtually any reason. The Supreme Court’s twisted logic is that the Fifth Amendment to the Constitution allows governments to this as long as there is a good reason and property owners are given a just compensation.
The Founding Fathers obviously intended the so-called takings clause to be used in extraordinary circumstances say if allowing a person to stay on their property might threaten the public safety. In Kelo, five Supreme Court justices decided that a local government could seize property and turn it over to private developers if this could be of economic benefit to the community. The Kelo case centered around a group of homeowners, mostly lower income people, whose homes were going to be condemned and torn down so developers could build an office building.
The practical result of this dreadful decision will be that if the bureaucrats and politicians at your city hall or county courthouse want to increase the property and sales tax base and the potential size of their salaries. They can condemn your house, pay you a pittance for it, then tear it down to make way for an apartment building, a big box store, a shopping center or even a casino. Joe’s Auto Body Shop pays less taxes than a McDonald’s franchise so condemn Joe’s Auto Body to make way for McDonald’s. If Joe needs work after his business is taken, McDonald’s is always hiring. The bureaucrats could tear down a church to make way for a casino, a parochial school to clear land for a shopping center and so on.
People of faith should really worry about Kelo, after all houses of worship don’t contribute to the tax base, so why not condemn them to clear land for development? Many historic churches sit on valuable properties and choice locations like busy intersections. City officials might even use Kelo takings to silence people of faith. For example, Pastor Smith doesn’t like the city’s casino plans and preaches sermons against them, so the city council rules that a new Seven Eleven would generate more taxes than Smith’s church and condemns it.
Since condominiums would generate higher property taxes than single family homes the bureaucrats could condemn a block of single family homes to make way for condos. Since yuppies pay more taxes than the poor, politicians could condemn a mobile home park or a block of tenements or small homes the poor live in to make way for loft apartments for yuppies to live in. Since subdivisions generate more property taxes than farms they could condemn a farm and subdivide it.
There are endless ways politicians could abuse this terrible decision. A politically connected developer unable to get the land he needs won’t need to pay extra for it, he can simply go down to city hall, write a few campaign donation checks, hand a little money under the table to planning and zoning officials and viola a report proving the economic value of his project will appear and city council will vote to condemn property and hand it over to the developer. The city council president and the director of planning zoning will be driving by in their new Mercedes while some citizens’ things are pitched onto the street.
Corrupt individuals might buy up worthless land, then organize a fake development project and pay officials to condemn the land for development. That way the tax payers will buy the land at an inflated price and enrich the speculators and the officials on their payroll. The government could then loan the developers money to build the development, contractors would make money, and a new shopping mall or apartment house that will sit empty will go up. The taxpayers will get stuck with the bill, the contractors, developers, realtors and city officials will laugh all the way to the bank.
If that wasn’t bad enough, politicians at city hall who want to move out the poor blacks in the ghetto, the poor Latinos in the barrio or the poor whites in the trailer park can decide that parking lots or a new industrial park would be more beneficial than the homes of the poor. Then the poor or the nonwhites could be moved out and replaced with tax generating property. Where would the poor go? Who cares we ran them out of our town.
This nightmare scenario isn’t far fetched, the homeless problem in many cities was created by urban redevelopment efforts. Local governments tore down large numbers of flophouses, low priced hotels and apartment houses in downtown areas to clear the way for redevelopment. A perfect example of this was on Bunker Hill in Downtown Los Angeles where flophouses were torn down to make way for a complex of office buildings that sits empty most of the time. The result was that many of the poorest citizens including alcoholics, drug addicts, senior citizens and the mentally ill, had no place to go and found themselves living on the streets. Now, citizens all over the country are forced to pay higher taxes to “help the homeless.”
The result of the Kelo decision could be that vast numbers of poor, working class and even middle class people could be driven from their homes and forced out of inner city areas. Since inner city areas are now desirable places to live, developers could use takings to force the poor and working class out of their homes to get buildings or land for redevelopment. I can imagine some developer arguing that loft apartments generate more property taxes than basic apartments for the poor so condemn the apartment houses the poor are living in so I can redevelop them. Already, plans are underway in Washington DC for a new baseball stadium that would involve the demolition of some homes. Working people would have longer commutes to work or might not have jobs anymore because they can’t find housing near jobs. The housing having been condemned and torn down in the name of redevelopment.
As with freeway construction, urban redevelopment and other such takings in the past the victims will be the poor and working class. When was the last time you heard of a country club or a rich man’s house being condemned for a “necessary public use?” It doesn’t happen, the rich can afford lawyers to fight condemnation, they can also afford to buy off public officials.
Obviously this is not good public policy, nor is it American. No free society can exist without property rights, yet Kelo effectively strips vast numbers of average people of their property rights.
It is imperative that any future Supreme Court nominee be pledged to overturn Kelo. If the Supreme Court doesn’t want to do this, then perhaps it is time for a Constitutional Amendment to ban takings of property except when public safety or national security is threatened. Yes, this will be an uphill battle, there are powerful interests, government officials, big corporations, wealthy developers, contractors, some labor unions, organized crime (mobsters control construction workers unions and the cement business in some parts of the country), land owners and politicians at all levels of government who stand to profit from Kelo, but it can be done.
If there can be an amendment to protect the flag from burning then surely there can be an amendment to protect the homes and businesses of average Americans from corrupt bureaucrats and greedy developers? After all only a few flags are burned each year by mental defectives. That is hardly something for the Congress to concern itself with.
One disturbing note here, the media has largely ignored the Kelo decision. They are more concerned with a ruling on anonymous sources. What will it take to get them worked up over this threat to our fundamental liberties, a few reporters’ homes bulldozed?
Yes, Kelo will be overturned like the Dread Scott decision and Plessy vs. Fergusson before it. But not until a lot of damage has been to our society and a lot of good people have seen their lives, businesses and homes destroyed by out of control bureaucrats. My guess is we will only see strong action against Kelo when the massive abuses of governmental power it paves the way for are apparent.
When a few pictures of police SWAT teams with dogs and rifles forcing poor people out of their homes to make way for a new shopping center or car dealership appear on TV a lot of Americans will get the message. I wonder when the first Kelo martyr, some poor guy who refused to leave his home, got out the shotgun and barricaded himself inside when the sheriff came to evict him from his own property then got shot dead by the police will be heard of? I just hope it doesn’t take an organized effort on the scale and scope of the Civil Rights movement to overturn this stupidity. Yet that is what it may take to deprive the developers and politicians of this power. Especially if we don’t get a Supreme Court Justice dedicated to stopping this evi