Washington, D.C.—In a landmark appeal to the U.S. Supreme Court, a Nobel Prize-winner filed a “friend of the court” brief in an effort to save the homes of middle-class families from eminent domain abuse.
Along with the Nobel Laureate, the Institute for Justice today filed its final brief on behalf of the homeowners in a case that arises out of New London, Conn., where the state supreme court, by a 4-3 margin, approved the taking of non-blighted homes for “economic development.” The government seeks to take 15 homes owned by seven families for private development projects to complement the nearby Pfizer global research headquarters. (The proposed development that destroyed a middle-class neighborhood initially included such items as a private health club and now includes a luxury hotel, high-end condos and private office space.)
Nobel Laureate in Economics in 1986, James M. Buchanan joined with noted economist Gordon Tullock and the Pacific Legal Foundation of Sacramento, Calif. in an amicus curiae (“friend of the court”) brief sharply criticizing the Connecticut Supreme Court’s ruling and urging the Court to accept the case for review.
Scott Bullock, a senior attorney with the Institute for Justice, which represents the homeowners for free, stated, “We are thrilled to have Nobel Laureate Buchanan along with other parties join us in this effort to stop an outrageous abuse of power by land-hungry developers and tax-hungry governments.”
Buchanan and Tullock, both now at George Mason University in Fairfax, Va., were the authors of The Calculus of Consent (1965) and are considered the fathers of “public choice” economics, a major area of economic theory that explains lobbying behavior and government decision making in democratic societies. The brief examines the public choice problems that arise when governments, through eminent domain, are allowed to redistribute benefits and burdens as political favors.
“Public choice theory confirms what we have seen time and time again—once government makes the power of eminent domain available to private parites, developers will actively seek the power to confiscate prime real estate from its rightful owners,” said Dana Berliner, IJ senior attorney.
Fifty years ago this November, the U.S. Supreme Court first blurred the U.S. Constitution’s requirement that the government could take land only for a “public use” when it ruled in Berman v. Parker that private property could be taken by the government and given to a private party so long as there was a “public purpose,” such as removing slums. But the Connecticut Supreme Court precedent goes much further; it would make it nearly impossible for the owner of even a well-maintained home or small business to defend his or her property from politically powerful developers and local governments seeking the promise of more jobs and taxes.
Also filing an amicus curiae brief in support of the property owners in this case is the New York-based Property Rights Foundation of America represented by the prestigious Washington, D.C., law firm Hogan & Hartson, L.L.P. The Foundation is a nonprofit organization dedicated to providing information and education and promoting understanding about the constitutional rights of American citizens, especially the right to own and use property. The brief gives a historical analysis of previous Supreme Court cases and the history of the public use requirement to demonstrate that the Constitution should not permit the transfer of property from one private owner to another for the purpose of economic development.
With these filings, briefing is now complete in the New London case and the U.S. Supreme Court will likely announce in October of this year when it goes back in session whether it will hear the case.
The U.S. Constitution is supposed to provide a baseline of the rights U.S. citizens enjoy, and, although states may provide more protection, they may not provide less. However, many states have blurred the meaning of what the Constitution’s plain language states about government takings of private land thereby making the words meaningless. Whether the government can take your home and give it to a private developer for his gain depends entirely on the state in which you live. For example:
- Connecticut homeowners can have their home taken for a private development almost automatically.
- New Yorkers may not even be notified of government efforts to take their land until it is too late to raise a constitutional defense.
- In Illinois, properties are safe from such takings unless they are blighted.
- In other states, like New Hampshire, there is no consistent interpretation of the law.
Public Power, Private Gain—a study published last year by the Institute for Justice—provided the first-ever census of how bad the problem has become. It documented that between 1998 and 2002 alone, there were more than 10,000 filed or threatened condemnations that involved private-to-private transfers of property in 41 states.
Berliner said, “If jobs and taxes can be a justification for taking someone’s home or business, then no property in America is safe because anyone’s home can create more jobs if it is replaced by a business and any small business can create greater taxes if replaced by a bigger one. If private property rights mean anything in our country, we have to restore the meaning of public use to mean what everyone once understood the term to mean—something the public would own and use, such as a road. Economic development is not a public use.”
“The New London case is a uniquely good case for the Court to consider,” said Bullock. “It doesn’t force the Court to reconsider its earlier eminent domain precedents, but rather offers a clear and new legal question: does the Constitution allow takings of nice homes for economic development? It involves a purely constitutional issue without other case-specific, factual complications or procedural inconveniences. And it has been 50 years since the Court has addressed the use of eminent domain for private redevelopment.”