Supreme Court Rules: “Thou Mayest Steal If You Can Benefit From It”

On Thursday June 23, 2005, the Supreme Court ruled in favor of allowing New London, Connecticut, to seize 15 hold-out properties for an as yet undersigned or contracted private redevelopment project. The Connecticut Supreme Court had earlier ruled in favor of New London’s fascism.

The Fifth Amendment to the Constitution allows compensated seizure for “public use.” What is disturbing about this eminent domain case is that the properties are not being seized to build a road, park, or city government building for “public use.” City officials have been given a green light by the high court to take land from some private landowners for use by private developers. The city’s goal is high-end retail, housing, and hotel development that will provide more jobs and taxes than the current owners provide.

Five justices allowed this confiscation to proceed. Justice John Paul Stevens, writing for the court, expanded “public use” to that which “will benefit the community” or offer “appreciable benefits.” He was joined by Anthony Kennedy, Ruth Bader Ginsburg, Stephen G. Breyer, and David Souter.

In the minority opinion, Justice Sandra Day O’Connor wrote: “Any property may now be taken for the benefit of another private party, but the fallout from this decision will not be random.” She noted, “The beneficiaries are likely to be those citizens with disproportionate influence and power in the political process, including large corporations and development firms.” She was joined in her dissent by Chief Justice William Rehnquist and Justices Antonin Scalia and Clarence Thomas.

This court decision is a chilling blow to property rights, but the door was opened by the framers of the Fifth Amendment. Eminent domain is a statist doctrine. It is an assertion of sovereignty that goes back to absolute monarchs of antiquity. The word originated at the beginning of the 17^th century, interestingly enough, when powerful modern European monarchies were developing the modern nation-states. Eminent domain assumes the ownership of all by the state: ownership and sovereignty that originate in and ultimately remain in the state or its monarch. Private property is then not a right but a holding derived from the sovereign state, and eminent domain is the reassertion of ownership by the state and sovereign power. Like all legal and political theories based on natural law, its historical argument is an artificial construct. It is a theory based not on precedent, but on a mythological historical development.

Another example of eminent domain is the income tax. Radley Balko has noted, “[D]isrespect for private property continues across all spheres of public policy debate. In fact, as income tax day approaches, we are reminded of the most egregious trampling of property rights: the passage of the 16^th Amendment, which gave government permission to siphon its take of the product of American labor.”^[1] The government, in its claim of sovereignty over our incomes, demands a full accounting thereof, and in an act of royal beneficence, allows us “exemptions” from taxation.

The court did allow that states could limit this power to take property from one private party and give it to another, but I’ll not hold my breath to see if this protects private property. The court rejected private property as a right. Every local government has been given a green light to redistribute property if it thinks it can improve its jurisdiction or its tax base thereby. In California, property tax rates are based upon purchase price, and increases thereafter are severely limited. Counties and cities hate this limitation on their ability to increase taxes. Every single property transfer in California offers “appreciable benefits” to these jurisdictions in the form of increased taxes. Every jurisdiction in California has been given a legal justification for confiscating any and every property for which it can find a willing developer.

Eminent domain is an act of sovereignty that belongs to God alone. The Biblical answer is thus to reject all eminent domain, including that originally tolerated by the Fifth Amendment. The state must be made subject to the sovereignty of a higher moral law, which in this case says, “Thou shalt not steal.”