Think you own your house?

Think again. The SCOTUS decision on Kelo basically gives the power to the government to take your property for any reason and give it to someone else.

Here in San Diego, Gran Havana Cigars (a shop that rolled their own cigars) spent $3M on a building & rehab for the building, after much support from the city, only to have the city take (through eminent domain) his new building/property for a Marriott hotel. This isn't a road or a school, but a seizing of property by the government to give to someone else (isn't Mugabe doing this in Zimbabwe, too?).

Anyway, a lawyer on a board I read wrote this opinion of the Kelo decision. Thus end property rights in the United States:

I have read and reread the Court's decision in Kelo, then I went and read and re-read two cases it relies on, Berman and Midkiff.

In her dissent, O'Connor offers a bone-chilling warning of the impact of this decision, and it's worth quoting in full because it is true. But before I get there, a bit of background:

In limiting the power of government, the Fifth Amendment admonishes: "nor shall private property be taken for public use, without just compensation." This is called the "Takings Clause" by most. The concept of taking land for public use is called "eminent domain."

Until yesterday, there were three types of eminent domain cases.

First, the Court had long held that the state could transfer private property (for just compensation) to public ownership--such as for a road, a hospital, or a military base.

Second, the Court had also long held that the state could transfer private property to private parties (typically, common carriers) who make the property available for the public's use--such as with a railroad, a public utility, or a stadium.

There was also a third category, very narrow, and it is on this third category that the majority based its opinion. In two cases--Berman and Midkiff--the Court declared that, in certain circumstances and to meet certain exigencies, the Constitution permits takings that serve a public purpose, even if the property is destined for subsequent private use.

(In Berman, a neighborhood was severely blighted and had to be condemned if it were ever to be habitable again. There was one shokeeper whose store was not blighted, and he sued to stop condemnation, which would have transferred the land to a private developer. The state argued that without condemnation and transfer, there would be no possible use of the land for any public good whatsoever.

In Midkiff, through historical niceties, 75% of the island of Oahu wound up in the hands of a very few owners. The state sought to condemn the property, noting that without such condemnation and development by a private developer, there would be no possible use of the land for any public good whatsoever.

In both those cases, the extraordinary, precondemnation use of the targeted property inflicted affirmative harm on society--in Berman through blight resulting from extreme poverty and in Midkiff through oligopoly resulting from extreme wealth.

And in both cases, the legislatures had found that eliminating the existing property use was necessary to remedy the ongoing, affirmative harm. Because each taking directly achieved a public benefit of removing this harm, it did not matter that the property was turned over to private use.)

The Court yesterday created a fourth category, one that swallowed up all others and all but eliminated the Public Use requirement.

The Court held that a legislature (state or, more typically, a municipality) could condemn private property and transfer it to a private person so long as the legislative body had a "rational basis" for doing so (e.g., it provides some "improvement" over the original property use), and that it was "not purely for private benefit."

As the dissent pointed out, this all but eliminated the Public Use clause, because a "rational basis" means only that if the legislature thinks there's a good idea for the condemnation, transfer and development, then the property may be subject to eminent domain.

O'Connor wrote: "[Today the Court holds that a sovereign] may take private property currently put to ordinary private use, and give it over for new, ordinary private use, so long as the new use is predicted to generate some secondary benefit for the public--such as increased tax revenue, more jobs, maybe even aesthetic pleasure." In short, if the legislature has the "police power" to do something, that police power translates to public use.

But, as O'Connor pointed out, "nearly any lawful use of real private property can be said to generate some incidental benefit to the public. Thus, if predicted (or even guaranteed) positive side-effects are enough to render transfer from one private party to another constitutional, then the words 'for public use' do not realistically exclude any takings, and thus do not exert any constraint on the eminent domain power."

As the dissent noted, the trouble with economic development takings is that "private benefit and incidental public benefit are, by definition, merged and mutually reinforcing. In this case, for example, any boon for Pfizer or the plan's developer is difficult to disaggregate from the promised public gains in taxes and jobs."

In other words, Wal*Mart could persuade a city council hungry for money that a particular poor neighborhood should be condemned and transferred because Wal*Mart could bring in more in sales tax and property tax than any poor neighborhood ever could. And oh, by the way, the fact that Wal*Mart would substantially profit from such a development is incidental and irrelevant. Or, in this case, Pfizer could have a city condemn part of a neighborhood--all on the basis that its business will bring in more taxes than the existing residences.

In short, as long as the city or state determines there's any improvement--through taxes, jobs, beauty, whatever--then that land may be seized by the Crown.

The only protection against this? As the majority made clear, a Court could always invalidate it if the court didn't think it was an improvement, or if the court thinks that it's really a private use. By what standards? Anybody's guess. The Court declined to provide any such guidance.

Therefore, what comfort do you--yes, you, Mr. TotalFarker homeowner, or you Ms. TotalFarker condo dweller--have that the government will not take your land, your home, your building willy nilly?

None. And hence O'Connor's warning, which I promised to quote in full:

"For who among us can say she already makes the most productive or attractive possible use of her property? The specter of condemnation hangs over all property. Nothing is to prevent the State from replacing any Motel 6 with a Ritz-Carlton, any home with a shopping mall, or any farm with a factory."

Nothing at all.