10/03/2004

Spotlight: Eminent domain ruling offers property owners hope
Bowling Green (KY) Daily News, 10/3/03

by Stephen Greenhut

One of the most persistent myths foisted on society by the political left is that property rights benefit mainly the rich and powerful.

Steven Hill, West Coast director of the liberal Center for Voting and Democracy, aptly expressed this misconception in the Seattle Post-Intelligencer: "The point is that the Bill of Rights and Constitution were really there to guarantee the property rights of the rich and the rich wannabes."

The nation’s inequalities, he added, "are a direct result – not in spite of, but because of – the priority given by the Bill of Rights and U.S. Constitution to protect the private property of rich individuals and wealthy corporations over basic human rights."

Yet property rights are not primarily about protecting the "rich and rich wannabes." They are, first and foremost about protecting those without political power from those with power.

That this sounds counterintuitive only reinforces how far the nation has traveled from the ideas embraced by the founders.

Consider this defense of property rights by William Pitt, the British prime minister in the late 1700s and early 1800s: "The poorest man may in his cottage bid defiance to all the forces of the Crown. It may be frail. Its roof may shake, the wind may blow through it – the storm may enter, the rain may enter, but the King of England cannot enter; all his forces dare not cross the threshold of the ruined tenement."

That was – and remains – a wonderfully radical idea.

Fast-forwarded about 180 years to 1981 and the Detroit neighborhood known as Poletown. It was a well-kept, ethnically diverse working-class neighborhood originally settled by Poles. The area had more than 1,000 homes, 600 businesses, several churches and a hospital.

Nothing wrong with the neighborhood, except that it was in an area coveted by General Motors, which was threatening to build a new Cadillac assembly plant out of state if city leaders didn’t use eminent domain – the power of the state to take property by force, upon compensation to the owner – and clear away Poletown.

So Detroit officials, backed by influential businesses and civic leaders (including the Catholic archdiocese, which sided with the government rather than with its own people), argued that Poletown must be destroyed for the economic well-being of all Detroit residents.

The state Supreme Court agreed that the taking was legitimate, based on a questionable U.S. Supreme Court decision that stood in stark contrast to the Constitution’s Fifth Amendment.

Fifth Amendment’s not fuzzy

The Fifth Amendment is clear about the use of eminent domain. The government can use this power, provided that it is for a "public" use. With some exceptions (e.g., to make way for railroads), the courts generally interpreted "public use" in the traditional way envisioned by the founders – courthouses, highways, schools, bridges, dams, infrastructure.

But in 1954, in Berman v. Parker, the liberal Warren court agreed that the District of Columbia could condemn private property and hand it over to other private developers for a private gain provided that the appropriate legislative body (at the time Congress, since the district had not yet gained home rule) deemed that it was proper to do so.

"If those who govern the District of Columbia decide that the nation’s capital should be beautiful as well as sanitary, there is nothing in the Fifth Amendment that stands in the way," ruled the court, in a decision that read more like a chapter in a sociology textbook than a reflection of the founders’ wisdom.

In 1950s Washington, there was a great deal of actual blight. By 1981, the courts were saying that blight need not even be found.

The mere promise of better economic circumstances for a region is a good enough "public" use to clear away a neighborhood.

And although, the Poletown plant is still in operation, its impact has been far less beneficial than General Motors and Detroit officials had promised.

In recent years, cities in Orange County, Calif., and across the country have used Poletown to justify the most outlandish schemes. Sometimes courts or political pressures stop them, but only sometimes.

Taxes spur condemnation

In Cypress, Calif., city officials voted to use eminent domain – they were stopped by a federal court decision – to give Cottonwood Christian Center’s property to Costco. They argued that the transfer from Cottonwood to Costco was for a "public use" because Costco paid more taxes than Cottonwood.

Garden Grove, Calif., tried to condemn an entire ethnically diverse neighborhood so the city could market the property to a tax-producing theme park operator. The city council backed down in the face of public pressure, but officials there rely heavily on eminent domain (or the threat of it) to transfer properties to developers.

In Lakewood, Ohio, the city tried to bulldoze an entire historic neighborhood so that it could give the prime parkfront property to a developer, who promised to replace the working-class residents with wealthy, upscale people who would move into new condos and frequent pricey shops. A local referendum put the kibosh on the plan, despite support from the political establishment.

In New Cassel, N.Y., the city drove a poor, African-American church off its land to make way for a shopping center. In Atlantic City, N.J., the redevelopment agency tried pushing an elderly widow out of her home so that Donald Trump could build a parking lot for his casino’s limousines. It was stopped on a technicality.

In each case, the inspiration was Poletown.

Before Poletown, in Cavez Ravine in Los Angeles, a poor Mexican-American neighborhood was leveled, initially to make way for public housing, but ultimately to create Dodger Stadium.

Those who believe that property rights are mainly for the rich have obviously never thought about these cases, where lower-income people are abused at the hands of important movers and shakers such as Trump, Costco and condo developers.

Wall Street Journal writer John Fund points out that Leaders of Our Town always side with the new development, which only reinforces the importance of property rights for those who want to live their lives in their own way, even against the wishes of the elite.

Fortunately, on July 31, 23 years after residents of Poletown were driven from their homes, the Michigan Supreme Court unanimously overturned the Poletown decision.

It won’t do anything for the original victims, but it will stop other cities from abusing people’s property rights to benefit other, influential people.

The court blasted the original Poletown decision as a "radical departure from fundamental constitutional principles.

...[I]f one’s ownership of private property is forever subject to the government’s determination that another private party would put one’s land to better use, then the ownership of real property is perpetually threatened by the expansion plans of any large discount retailer, 'megastore,' or the like."

When eminent domain is abused, the rich and powerful take advantage of the poor and powerless.

Only with secure property rights can every property owner, no matter how poor or humble, tell the king (or Donald Trump or Costco, or some arrogant city manager) to take a hike.

Even liberals ought to see the beauty in that scenario.


Bowling Green Daily News: www.bgdailynews.com