Charles Shiflett Column January 2, 2005

America's Big Problem With E.D.

Where's Bob Dole when you need him? America is facing a huge ED problem and Dole's experience
as a spokesman for controversial issues would serve us well. No, not that ED… the crisis brewing
across this nation is that of governments abusing the power of eminent domain and Viagra won't help.

The U.S. Supreme Court agreed in September to tackle the case of Kelo vs. City of New London. This
is a high profile case that pits homeowners in Connecticut against a city government attempting to
take their homes through the power of eminent domain and the outcome will directly impact your right
to own and hold property.

The Fifth Amendment to the U.S. Constitution reads in part, "…nor shall private property be taken for
public use, without just compensation." The federal power of eminent domain basically lay dormant
and it was not until 1876 that the Supreme Court recognized its existence.

The Fourteenth Amendment later granted citizens the same guarantees of protection against state
governments as the Fifth had granted against the federal government. The Court has long accepted the
principle that one is deprived of his or her property in violation of this constitutional guarantee if a State
takes property for any reason other than a public use.

I think most would agree that eminent domain should only be used as a last resort when major public
projects would be in jeopardy without a particular parcel of land. When we think of governments taking
property for the public good, we tend to envision uses such as roadways, dams, military bases,
government offices, or schools. The question to be decided in the "Kelo" case is what exactly defines
the term "public use".

The U.S. Supreme Court last ruled on eminent domain issues about 50 years ago in the case of
Berman vs. Parker. This decision held that cleaning up and rebuilding a slum neighborhood was a
sufficient public purpose to justify use of eminent domain. When I envision slum neighborhoods, I
imagine dilapidated and dangerous substandard housing.

However, the trend over the last few decades has been one of broadening the definition of what is
acceptable under the Berman decision. Let's say a retailer like Wal-Mart, a private company, wanted
your $250,000 home in order to build a new Supercenter and you didn't want to sell. Should the
government have the right to take your property through eminent domain and transfer it Wal-Mart?

All across the nation, governments are taking nice homes and family farms and transferring ownership
through various development authorities to private developers for non-public use. The justification is
that these huge new high-density residential developments or giant commercial projects will generate
more tax revenue than the existing raw land or single-family homes do. This is the new interpretation of
public use.

Public officials don't seem to understand that what is at stake are people's homes and lifestyles. The
never quenched desire by government for more revenue is all that matters.

In the Kelo case, the city of New London, Connecticut believes homeowners along the banks of the
Thames River should be forced to give up their homes so that private developers can build a luxury
hotel, high-end condos, offices, and commercial space.

Registered nurse Susette Kelo said, "What galls me is the developer is taking my land so someone
else can live here. That's what they want to do - build homes. I'm not good enough to live here, yet
someone else is." Kelo and her husband live in an old Victorian they bought and renovated in 1997.
Theirs is hardly a blighted neighborhood.

Without private property rights, the United States would never have grown into the world superpower it
is today. If the court rules in favor of Susette Kelo and her neighbors, then state and local governments
will have been put on notice to tread lightly in their use of eminent domain.

If Kelo loses, then you will only own your home until some individual or business with more power and
influence comes along and decides they want it. This case may not grab national headlines, but its
outcome will have national ramifications. I'm pulling for Kelo.