Eminent Latitude

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Friday, June 24, 2005

IT'S HARD TO TAKE satisfaction in the Supreme Court's decision yesterday in the case of Kelo v. City of New London -- the result of which is quite unjust. Yet the court's decision was correct.

New London, Conn., has been attempting to take the property of residents of Fort Trumbull, an economically struggling area, for a redevelopment project that would replace their waterfront neighborhood homes with a hotel, offices and other new features. A few residents refused to sell, so the city -- or rather, a private, nonprofit corporation acting on its behalf -- asserted the power of eminent domain to force them to sell. The Supreme Court ruled that the city has the right to do so, which means that people who have lived for long periods in Fort Trumbull will be forced from their homes based on a vague and uncertain redevelopment scheme. It isn't a pretty picture.

The Fifth Amendment to the Constitution requires government to pay "just compensation" whenever it takes private property, and the Fort Trumbull residents will be compensated. But it further requires that "takings" be for "public use," and it was this requirement that residents cited in their lawsuit. They contended that the city was taking their land not for any legitimate public use but for the benefit of businesses -- essentially that the government was exchanging one set of private owners for another that would pay more taxes and bring jobs to the city.

The trouble is that there is no good way to distinguish New London's use of eminent domain from assertions of the power that local governments depend on all the time for worthy projects. Railroads, stadiums, inner-city redevelopment plans and land reform efforts all have involved taking land from one owner for the apparently private use of another. As Justice John Paul Stevens noted for a five-justice majority of the court, the justices' response has long been to avoid "rigid formulas and intrusive scrutiny" of legislative determinations "in favor of affording legislatures broad latitude in determining what public needs justify the use of the takings power."

This is not to say that a "public use" is anything government says it is. If the supposed public use were plainly a pretext for a simple private-sector land transfer, the court would presumably step in. But that is not the case here. New London's plan, whatever its flaws, is intended to help develop a city that has been in economic decline for many years. City authorities may be wrong in their judgment that their plans are a good way to revitalize the town. But the Fifth Amendment's takings clause was never meant to ensure good judgment or wise policy. Indeed, it was intended less as a restraint on the substance of what government does than as a guarantee that it will pay reasonably. However unfortunate New London's plans may prove, stopping the city based on a standardless judicial inquiry into how "public" its purpose really is would be far worse.


© 2005 The Washington Post Company

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