If You Build It: A Field of Dreams and Nightmares Sorted out by the Supreme Court

On June 23, 2005, the Supreme Court decided 5-to-4 to support local governments that want to tear down and rebuild, and some say the ruling compromises private property rights.

The Fifth Amendment of the Constitution awards government the power to appropriate private property for public use, and many localities use that power -- the power of eminent domain -- to flatten existing neighborhoods and build new developments.

The argument that rose to the Supreme Court was over the meaning of "public use." The City of New London, Conn. claimed that its plan to replace a declining residential neighborhood with a new hotel, office space, residential area, and river walkway fits the description of public use. But the affected property owners argue that their homes are being destroyed for a very private development.

Economic development v. property rights

The majority of Supreme Court justices ruled in favor of the town’s plan for economic development, saying that "public use" should be understood as "public purpose."

Justice John Paul Stevens explained that economic development is one of government’s many functions, so New London officials have the right to utilize the Fifth Amendment to revitalize the city, which suffers from high unemployment.

Although the development project would bring in new jobs, many New London residents don’t want to sacrifice their homes to the cause and say that the pressure to sell is abuse.

Dissenting Justice Sandra Day O’Connor was concerned with government abuse as well. She fears that the decision will have far-reaching consequences: "The government now has license to transfer property from those with fewer resources to those with more. The founders cannot have intended this perverse result."

Justice Clarence Thomas agreed that the weight of the decision would fall on the less fortunate. Justices William H. Rehnquist and Antonin Scalia joined in the dissent.

But the majority opinion is that economic revitalization projects benefit a greater number of lower and middle-class workers and so the sacrifice is worth it. Justices Stephen G. Breyer, Ruth Bader Ginsberg, Anthony M. Kennedy and David H. Souter joined the majority opinion.

A hint of federalism

In his decision, Justice Stevens stated that local governments are most capable at determining community needs and suggested that local governments make positive development decisions like the New London plan, which he called “carefully formulated."

The idea that localities are more adept at community decision-making is an idea embraced by both sides of the political spectrum, but traditionally favored by Republicans.

However, most Republicans are standing on the private property side of the issue. They feel that, in most circumstances, government should not have the power to seize citizens’ property.

And many states agree. At least eight have forbidden the use of eminent domain to increase tax revenue and jobs, including Arkansas, Florida, Illinois, Kentucky, Maine, Montana, South Carolina, and Washington.

The role of government

At issue is the role of government. Is it the government’s responsibility to foster a strong economy, even if it creates hardship for some? Or, should government work to protect property rights, even at the expense of economic expansion? What should the federal government do to ensure that local governments don’t abuse the Fifth Amendment?

What do you think?

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Article Posted on: 7/1/2005