The Supreme Court got it wrong. Forget about recent decisions on the Ten Commandments, Internet file sharing liability, access to high-speed cable infrastructure, or two reporters trying to protect their sources.
As Western land owners, the recent court decision to allow local governments the right to “seize” private land for private development in the name of “public use” is a lot more troubling to us.
By a single Supreme Court vote, our rights to our land, our house and home are now seriously undercut. Perhaps the justices have to come from the West, like Justice Sandra Day O’Connor of Arizona, to fully understand what a monumental threat this is.
Most troubling is not how this can happen but why. The Fifth Amendment to the U.S. Constitution states that no person shall “be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.”
This amendment establishes security in property; the only way the government can seize your property is for “public use,” and it must provide “just compensation.”
Now, in Kelo vs. The City of New London, the court has given local governments the right to define “public use” as “public benefit.” Now any government in America can take the private property of tax-paying citizens and give it to private developers to build shopping malls, casinos, health clubs and whatever else some city council thinks will maximize tax revenues.
There is not a town or city in America that doesn’t want more tax revenues, nor is there a property developer who doesn’t want to grow the profit margin. Those two goals now trump your right to your property. At a time when American politics sometimes seems up for the highest bidder, this decision is a blatant invitation for political corruption at the local level.
Every landowner – whether a new or a longtime homeowner, farmer, city dweller or mom-and-pop business owner – is now on notice that any private developer or corporation with access to public officials can, in the name of “public use,” acquire your land or home as long as it convinces the local municipality of the potential of increased tax revenues.
Westerners, rightly or wrongly, have always been a little suspicious of the distant government in Washington. Now every Westerner has a right to be concerned about his or her local government, which may decide that having Wal-Mart on your farm or ranch is better than having you on your farm or ranch.
Before this decision, public use normally included such projects as new schools, parks, libraries, roadways, railroads or water access. Now, at least in theory, private condominium complexes, bigger and more expensive private homes, maybe even a private golf course, might trump the Fifth Amendment – as long as there is the potential for greater tax receipts. Greater tax revenue, it seems, will serve our communities better than that quaint old home that has been in your family for generations or that family farm or that nice convenience store run by a hard-working family.
As Western landowners, we are particularly troubled by this cavalier approach to landowners’ rights. How do you determine “just compensation” for land and property rights in cases where ownership of family ranches, parcels and mountain homes has spanned generations and long family and community histories? Family tradition, our ties with history and our past, must give way to shopping malls. Stories about the original Americans and prairies full of bison will be but past dreams of rolling foothills now covered by parking lots, littered with stray shopping carts.
As Westerners we have a strong belief that we are but stewards of this great land and that we really do not “own” the land – the land owns us.
Given our nation’s heritage of westward expansion, perhaps the ultimate irony would be that casino revenues would permit the superstore chains, the gated-community development companies, the builders and profiteers who stand to benefit most from the recent court decision to be acquired and owned by Native American tribes.
That they, using our revered Constitution, our own laws and court decisions, would finally have the ability to legally reacquire these beautiful lands, only that might make the Supreme Court’s decision truly just.
Former U.S. Sen. Hart and son John Hart are attorneys and property owners in Kittredge.
