COLUMN: Private property rights in the Court’s hands
The Supreme Court is currently deciding the most important case in the history of the United States of America. Oral arguments were heard Feb. 22 in Kelo v. City of New London, a case that questions the state’s authority under the Eminent Domain doctrine created by the Fifth Amendment’s Takings Clause. The decision made in this case will have a greater effect in every American’s life than any other case decided to date.
The petitioners in this case represent four citizens of New London, Conn. They have had their homes condemned by the city commissioned Development Corporation (NLDC), after they refused to sell to make way for the event that the property they legally owned potentially would be utilized by Pfizer, a private drug company. Pfizer was expected to create thousands of jobs for New London thus improving the economic status of the community.
With all of this theoretical job growth, New London expected to create between $680,000 and $1.2 million in tax revenue for the economically failing city. These activities were seen by the City of New London to be vital for economic stability of the community, and thus justified the taking of the privately owned property under the Eminent Domain doctrine established by Supreme Court’s Fifth Amendment jurisprudence.
The Fifth amendment states, “No person shall be … deprived of life, liberty, or property … nor shall private property be taken for public use without just compensation.” The Fifth Amendment recognizes that it is vital for a society, if it wants to function cohesively, to be able to take private property to provide public goods like roads. It also recognized the fundamental right to property for freedom to exist. Thus the Eminent Domain doctrine was embedded in the Constitution with a requirement that the property was only taken for public use and just compensation is given, creating an essential check on this power.
There has always been strict scrutiny considering the justification for taking property. The key ingredient has always been that the public had indiscriminate access to the services provided by the land. It was a public use standard and not a mere public benefit like New London used.
The public benefit interpretation is the crux of this issue. If the Court decides that the Constitution allows for the taking of property because there is a perceived (it is abstract and theoretical because there are many unseen factors that influence the viability of such endeavors) public benefits then where do these takings end? Where will the limit be placed on what constitutes a public benefit?
Several government authorities have already hinted at taking intellectual property in the name of the public good. In D.C., legislators are considering declaring a health care emergency and confiscating patents held by drug companies (ironic that Pfizer would be on the losing end of this property theft, what goes around comes around), compensating them, and giving the patents to a small company willing to produce a generic version at minimal cost to the public. Like taking the private property of citizens for an unknown short-term public benefit, this will be detrimental to all of society. Do you think drug companies are going to continue to develop new drugs that cure disease if they are just going to have the patent stolen by the people in the name of public benefit? All incentives go out the window. I guess there goes some future cure to cancer and AIDS.
Even more important is the question of where does it end. Why not confiscate the services of physicians under the medical emergency? Compensate them for their time in medical school and make them serve the public benefit. There are numerous examples of what can be confiscated for the public benefit, the term itself is abstract and encompasses everything that free markets provide. Confiscating personal homes and making them available for the poor to move in, all the food grown by farmers and ranchers, taken and given to the public free, are all logical steps under this type of thinking. The problem is that government officials and Americans have forgotten these goods provided to us are provided at a cost and are only produced because there might be a profit in the end. They cannot just be taken and given to another without society undergoing severe negative effects.
If the Supreme Court rules in favor of the City of New London as the Connecticut State Supreme Court did, then they will have failed America and betrayed out heritage of freedom. Private property will become a right of the past like so many rights the Court has sold down the river in the name of humanity and intellectual progress. Such a decision will unravel the very fabric that built and still holds our great nation together.
Jared Scott Westbroek is a senior majoring in law and Constitutional studies. Comments can be sent to jwestbroek@cc.usu.edu.