Eminent Domain and Property Rights

The recent ruling by the Supreme Court on the New London Conn eminent domain case came as no surprise to me, in the sense that it is an old unsettled issue.

Why so many Americans are surprised is beyond me. For decades, the Government has used "eminent domain" to take people's properties away.

Perhaps another sign of basic American ignorance in their own civic matters.

"Eminent domain" was inherited from the British Common laws, it is a fundamental recognition of ultimate State ownership of all property.

This too should not be a surprise. I have said many times, that we don't really own any land in any country.

Here, in US, we have to pay real estate property tax each year, even if we do nothing with the land, and no income is derived from the land.

It's a small percentage tax to be sure, but still we must pay the "tax" or the government will seize our land, and perhaps sell it off.

What sort of "property" is it that we must constantly pay "tax" on?

Answer: It's not "property" that we own, but "property" we RENT. And it is not "tax" we pay, it's "rent" we pay.

"Eminent domain" is the precise legal recognition of that arrangement, ie. if the Government really wants to, it can kick us "renters" off the property.

Now, it is willing to compensate us for our troubles, but make no mistakes in illusions, we do not OWN any land, the Government does.

Why this arrangement? Ultimately, it is national security. We can't have foreign countries come in and buy up all the land, and then proclaim the land as theirs once and for all. Even embassies are technically "rented", and can be taken away.

The other reason for this arrangement is economic. Long time ago, when currency is pegged against local economies instead of GOLD, currency and national property value became linked in value. In other words, the power/value of the US dollar is pegged to precisely how valuable the US land is worth.

What we have is not really Capitalism, it's a form of Advanced Feudalism. In old Feudalism, the King owned EVERYTHING, which meant, the Lords and other subjects merely "rented" from the King, and thus must pay the King tribute for the use of the land.

The British recognized this in Magna Carta, in that they did not dispute King's ownership of everything in/on the land, merely that they restricted and limited the King's ability to kick off "renters".

However, this is still open to abuse, and the power transferred to the British Parliament, who could exercise "eminent domain" in the name of the King.

In Colonial days, British military also exercised "eminent domain" on various corners of the British Empire.

When the Americans established independence, they tried (without much luck) to establish additional limits on the "eminent domain" power, ie. via the legal term "public use".

Trouble is, no one in the federal level ever passed a law to define "public use". The Founding Fathers, being somewhat emphatic about State Rights, left it up to the States to define "public use" as they saw fit.

But again, like so many other issues, State rights have led to trouble.

It used to be that "public use" was more or less that, "public use", ie. for building public projects, highways, government offices, etc. But later, "public use" became stretched to mean private development of "blithed" areas.

In the New London case, the City council sought to buy out a group of home owners, in favor of a group of corporate developers who wanted to build office space and hotels.

The case was first heard in the local court, who ruled in favor of the home owners.

Then it was heard in the Conn Supreme Court, who overturned the verdict, and ruled in favor of the City of New London.

Finally, the appeal reached the Supreme Court, which affirmed the Conn Supreme Court ruling, narrowly, by 5 to 4.

This decision is though not so clearly cut along idealogical lines, O'Conner, a traditionally liberal judge, was in the dissenting minority, which did not see New London's "eminent domain" use as proper in this case.

The 3 traditionally Conservative judges, Rheinquest, Scalia, and Thomas, all dissented.

Stevens, Kennedy, Ginsberg, Souter, Breyer, affirmed the Conn Supreme Court.

(1) Legally, strictly by the words of the law, this decision was a CORRECT one, based upon all available arguments.

The counsel for the home owners argued that this development of their land cannot constitute "public use".

This argument, by all legal standard, is flawed, because it asked the Supreme Court to impose a new definition of "public use" over US and all 50 states, which the Supreme Court cannot legally do.

For one, there is not a single piece of federal legislation that defines "public use" in "eminent domain" for all 50 states.

The 5th Amendment was deliberately left as a State right to define "public use" in "eminent domain", thus the Supreme Court cannot intervene without any established federal definition of "public use".

Thus, the 5 justices of the majority, voted correctly, to affirm the right of the State of Conn and the city of New London to define "public use" as they see fit.

Thus, the Plantiff's counsel's legal strategy in this line of argument is extremely flawed, and lacking in basic legal understanding. Clearly, they are no specialists on Constitutional law.

The basic power of "eminent domain" cannot be challenged, nor can the right of the local government in defining "public use". The courts are not in the position to challenge these powers.

(2) however, Plantiff counsel should have approached this via another position.

That the City of New London acted in breach of Separation of Power.

Namely, the City of New London acted as an extra-judicial arbitrator for 2 groups of private entities in a private dispute.

If Plantiff party does not wish to sell to developers, the City cannot rule in favor of the developers. The city council is not a court of law, designed to settle such disputes.

Property rights as far as eminent domain is concerned, should not be legislated on the fly any more than individual rights can be legislated on the fly.

States, for their definition of public use, should be established by prior legislations and legal precedences. This particular legal dispute, should have been between the home owners and the developers. The city council should not be involved in such an economic dispute, any more than any legislative body has any business in any merger/acquisition negotiations between any large corporations.

In this very sense, this new definition of "public use" is establishing a new precedence of economic control by the Government.

Afterall, "Community development" itself is not legislated in any fashion. If indeed "eminent domain" and "public use" can be proclaimed by the most loose definition of "Community development", then why could not the city of New York take control of the NY stock exchange with "eminent domain" and turn it over to the management of any specific corporation in the name of "Community/economic development"?

Indeed, in such a deed, the "eminent domain" smacks of illegal Government acquisition of private assets.

In defining the limit of "eminent domain",