Long before the arrival of Milton Friedman, the founders of this country recognized an inextricable connection between liberty and property. They rooted their manly independence in the private ownership of landed property, which they defended as a blessed natural right. Sir William Blackstone, whose multivolume Commentaries on the Laws of England(1765-69) sat on the bookshelf next to Scripture in the households of the revolutionary clerisy, wrote: “So great . . . is the regard of the law for private property, that it will not authorize the least violation of it; no not even for the general good of the whole community.” Retreating a bit from Blackstone, the Fifth Amendment to the United States Constitution prohibits the state from taking “private property” from any person “for public use, without just compensation.”
In October 2004, a bitterly divided Supreme Court ruled 5 to 4 that the city of New London, Connecticut, had acted lawfully– within the meaning of the Takings Clause– when it initiated condemnation proceedings against Susette Kelo and eight other small homeowners to make way for a sweeping waterfront developmental project to benefit Pfizer Corporation. Neither Kelo nor her fellow plaintiffs were holdouts, trying to squeeze more money out of the city. They simply did not want to sell their homes. The decision sparked national outrage. The majority, in effect, had sanctified a definition of “public use” that had been gradually broadened by state and federal courts in the twentieth century to embrace the idea of “public good.” This elastic term, as critics pointed out, could mean almost anything. If one developmental project promised higher tax revenues for the state, then a taking that would transfer a piece of private property from one private owner to another could qualify under this enlarged definition as a “public good.” Nor, as the majority admitted, did the Court plan to second-guess the legislature on the design and economic promise of individual plans.
Sandra Day O’Connor, writing for the minority, maintained that the majority had violated one of the sacred first principles of the country. By “public use” the founders had meant something like a public highway or a coastal fort. “Under the banner of economic development,” O’Connor warned, “all private property is now vulnerable to being taken and transferred to another private owner . . . . Nothing is to prevent the State from replacing any Motel 6 with a Ritz-Carlton, any home with a shopping mall, or any farm with a factory.”
Carla Main, author of Bulldozed (Encounter Books, 2007), a riveting story about the abuse of eminent domain in Freeport, Texas, will speak at the AHI on Saturday, March 8th at 4 pm. The Wall Street Journal calls her book “a primer on eminent domain and the legal arguments surrounding the claims of municipalities on private land.”
The AHI, Edmund Burke Association, and Hamilton College Republican Club will sponsor her lecture. It is open to the public, and a reception will follow.