Local attorney Stephen Merrill of Norfolk attended the Kelo v. New London Supreme Court oral argument last week.  His review of the hearing is contained in this issue writing as a special correspondent for VNS. Attorney Stephen Merrill of Norfolk filed a “friend-of-the-court” brief with the Supreme Court in the New London case favoring the aggrieved landowners.  The brief was filed on behalf of the Tidewater Libertarian Party.  Mr. Merrill is the General Counsel for the TLP.  The TLP’s brief was the only brief submitted that directly argued that the 1954 case of Berman v. Parker should be overruled thereby ending the use of eminent domain to forcibly transfer real property from one citizen to another citizen for that citizen’s private use. Morris Rowe, EDITOR

There is little in the British common law tradition that offers more in the way of economic freedom than the protection of the ownership of land and improvements.  A fee simple title to one’s home guarantees exclusive use of the property forever. Or does it in our modern era of advancing state power? This past Tuesday morning the United States Supreme Court tussled with that very question.  The case of Kelo v. The City of New London presents a typical juncture along the Road to Socialism.  The precise question presented: Should the meaning of the phrase “Public Use” within the Fifth Amendment be twisted further to allow government to seize entire neighborhoods that are not blighted in any way?  To this correspondent, the questions asked by the members of the Court on Tuesday morning, showed that a groundswell may be coming that will finally reverse the tide of eminent domain abuse. Justice Scalia, one judge near certain to vote to overrule the 1954 Supreme Court case that opened the redevelopment political power-broking stampede in the first place, stated freedom’s case in a simple way.  He asked New London’s attorney if he was suggesting that it was perfectly acceptable to forcibly take property from Citizen A and give it to Citizen B because Citizen B may pay higher taxes for the property?  After a pause, the reply the judge received is that the government may indeed act as a kind of reverse Robin Hood if the money is good enough.  Taking from the poor and middle-class to give to the rich is now to be considered a valid public use justifying government expropriation of homes and businesses.  Supposedly, such a public use was intended by the authors of the Fifth Amendment. Justice Ginsberg showed pity for the “economically depressed” citizens of New London.  After all, their own city council had labeled them as such.  Should not the few have to sacrifice for the benefit of the many?  The judge asked if, in this case, the mark could be moved just a bit: from “blighted” properties to an “economically depressed” citizenry?              The answer is twofold.

If New London, Connecticut is economically depressed, it is probably because of restrictive, wrong-headed government policies over a long period of time.  The last palliative for such an ailment should be an even heavier-handed dose of government planning enriching the legislature’s favorites.   And Justice Ginsberg’s suggestion is much more than just a small move toward greater government power in seizing property.  It would all but abolish the property rights of the very people ever likely to be harmed by eminent domain abuse.  It is only the property of the poor and the working class that become the envy of the powerful and wealthy.  Such neighborhoods are easily declared “economically depressed”.  The Fifth Amendment was not intended to protect only the homes and businesses of the wealthy.  Justice Breyer clearly wants to find a way out.  He lamented that citizens who do walk away from their homes have to pay their capital gains taxes, pay to move and also contend with the vagaries of obtaining a mortgage on a new home.  A person living in a $500,000 home with a mortgage they could afford could well find himself living in a $300,000 home at a higher monthly cost and with no cash left to cover the losses.  The judge points out that the developers are winning, the city revenues rise and the citizens overall are supposedly better off, but the homeowner is guaranteed a sizeable loss.  But the one solution offered by Justice Breyer, forcing the government to pay more for the property they take by force,

both misses the point and would require the overruling of an entire series of previous cases. Justice Souter is skeptical of both sides of the case.  He wants to know how some form of middle way might work.  He could not get an answer or come up with an answer of his own.  Everyone did seem to agree the answer was not to get the courts in the business of judging whether the proposed development plan is going to be successful in benefiting the public at large. Justice Kennedy’s search for a middle way was just as unsuccessful.  Applying a level of judicial review somewhere between extreme deference and strict scrutiny would only sink the courts into grand economic planning of their own. Justice O’Connor was in a word: exasperated.  She asked at one point if the only feasible solution is to simply overrule the Berman v. Parker case of fifty years ago.  She returned to that point again later.  In the end, Justice O’Connor wanted an answer to Justice Breyer’s question: How does New London plan to make Mrs. Kelo whole?  But can a citizen who has their home forcibly taken away from them through no fault of their own be made whole in a complete way.  This correspondent has a prediction to make: Either this decision will splinter into three or even four opinions or it will be a unanimous or 8-1 landmark decision that, for the first time, reverses one of the 20th Century corruptions of our Constitution.  Only in the latter way will the landowners of America truly win their freedom.

Stephen Merrill, Special Correspondent