JUST DESSERTS:

Do we have a right to our property -- or not? (George Will, September 19, 2004, Townhall)

Soon -- perhaps on the first Monday in October -- the court will announce whether it will hear an appeal against a 4-3 ruling last March by Connecticut's Supreme Court. That ruling effectively repeals a crucial portion of the Bill of Rights. If you think the term "despotism'' exaggerates what this repeal permits, consider the life-shattering power wielded by the government of New London, Conn.

That city, like many cities, needs more revenues. To enhance the Pfizer pharmaceutical company's $270 million research facility, it empowered a private entity, the New London Development Corporation, to exercise the power of eminent domain to condemn most of the Fort Trumbull neighborhood along the Thames River. The aim is to make space for upscale condominiums, a luxury hotel and private offices that would yield the city more tax revenues than can be extracted from the neighborhood's middle-class homeowners.

The question is: Does the Constitution empower governments to seize a person's most precious property -- a home, a business -- and give it to more wealthy interests so that the government can reap, in taxes, ancillary benefits of that wealth? Connecticut's court says yes, which turns the Fifth Amendment from a protection of the individual against overbearing government into a license for government to coerce individuals on behalf of society's strongest interests. Henceforth, what home or business will be safe from grasping governments pursuing their own convenience?

But the Fifth Amendment says, inter alia: "nor shall private property be taken for public use, without just compensation'' (emphasis added). Every state constitution also stipulates takings only for "public use.'' The framers of the Bill of Rights used language carefully; clearly they intended the adjective ``public'' to restrict government takings to uses that are directly owned or primarily used by the general public, such as roads, bridges or public buildings.

You have to wonder if this approach isn't as tactically mistaken as the argument against separate rather than in favor of equal in Brown v. Bd. of Ed. Why not argue, at least in your first bite at the apple, that "just compensation" requires that the original owners receive payments based on what their property is worth as part of the entire project, rather than based on what it is worth currently, without such a project? That would presumably make such an endeavor so expensive that the developers would use private means to buy up the land, instead of eminent domain, or would present such a windfall to the original owners that they'd have little cause for complaint.

Posted by Orrin Judd at September 19, 2004 3:23 PM