Seizing your house to put up a mall: Why the Supreme Court thinks it's fine

In 1833, a man named John Barron complained to the U.S. Supreme Court that the city of Baltimore had ruined his profitable wharf, filling it with earth and gravel by re-routing streams in order to pave the city streets. The city had taken his property for public use, Mr. Barron said, and under the Fifth Amendment to the U.S. Constitution they could not do that without paying him fair compensation.

The U.S. Supreme Court rejected Mr. Barron's claim. The Fifth Amendment "is intended solely as a limitation on the exercise of power by the government of the United States," Chief Justice John Marshall said, "and is not applicable to the legislation of the states."

In other words, the U.S. Constitution offered no protection at all to people whose property was seized by a state for public use. If the state constitution allowed the property to be taken, that was the final word on the subject. The protections in the Bill of Rights did not apply to state governments.

So when the U.S. Supreme Court ruled recently in Kelo v. City of New London that nothing in the U.S. Constitution prevented the Connecticut town from seizing private homes and giving the land to a private developer, it was actually returning to the original intent of the Constitution.

Of course, the reasoning was a little different. The Court certainly didn't rely on Chief Justice Marshall's understanding that if Congress had intended the Bill of Rights to apply to the states, "they would have declared this purpose in plain and intelligible language."

The truth about the Constitution is that it reserves all power to the states except the powers that are explicitly listed in the Constitution as belonging to the federal government, plus the powers that are "necessary and proper" to carry out those specific powers.

Today, the federal government gets around those strict limits by using the tax code as a tool of reward and punishment, by handing money back to state governments with strings attached, and by stretching the definition of "commerce" so that the constitutional power to regulate interstate commerce covers just about anything that Congress wants to fiddle with.

State powers have also been cut down by the U.S. Supreme Court, which began in 1925 to erode the Tenth Amendment's guarantee that all powers not delegated to the federal government are reserved to the states or to the people. Ignoring decades of precedents holding that the Bill of Rights restricted only the powers of the federal government, the Court decided that certain rights were so fundamental to the concept of due process of law that they must apply to the states through the Fourteenth Amendment, which bars any state from denying due process of law to any person.

The Court decided that when a right was "fundamental," a state would not be permitted to infringe it unless the state could show a compelling reason--not merely a rational reason--that the law was necessary to accomplish a permissible state purpose, and that the law was no more restrictive than absolutely necessary to accomplish that purpose.

This tough standard was used to strike down state laws restricting everything from panhandling to flag-burning to topless dancing to abortion. It was used to control police procedures and restrict searches and throw out evidence and require Miranda warnings.

Since this is all made up out of the air anyway, the Court could have adopted this tough standard in the Kelo case.

The Court could have ruled that there is a fundamental right to private property, and that a state may not seize one person's property in order to give it to another person unless the state can show a compelling reason--not merely a rational reason--that the seizure is necessary for a permissible purpose, and that it is the minimum necessary to accomplish that purpose. The Court could have required cities and states to justify eminent domain seizures the same way it forces them to justify laws banning nude dancing.

But it didn't.

Property rights are certainly "fundamental"; they're right there in the Constitution after life and liberty. Why did the Court refuse to give property rights the same protection it gives other rights?

Because the defense of property rights is a sticky wicket for judges who think it's appropriate for the federal government to protect the habitat of migratory birds and the breeding grounds of kangaroo rats. Beefing up the protection of property rights would make it harder for the government to put property owners through years of expensive studies and legal proceedings before they can clear trees and build on their own land.

There is a fear in some quarters that to strengthen property rights is to unleash hideous legions of earth-destroying monsters who will kill Bambi's mother and her little friends the snail darters.

And that's why the justices who usually have no fondness for states' rights said the states have a right to seize your house for a shopping mall.

It's been so long since the Supreme Court said the states were in charge of anything, no one seems to know what to do about this.

Here's what you do. Take out the phone book and look in the government pages--they're usually at the front--for the names of your representatives in the state assembly and state senate. Give them a call. Send a little note to the governor. Let them know that you think your state constitution ought to be amended to say that property shall not be seized for private development. Tell them you will not support any candidate who doesn't support that amendment. Tell them you know who's running this show and it's not the Supreme Court.


Copyright 2005