Kelo v. City of New London

(This commentary was originally published Feb. 22, 2005.)

Today, an intellectual battle that will shape our fundamental freedoms will be joined before the United States Supreme Court. The Mackinac Center for Public Policy has added its voice to that struggle.

A group of citizens in Connecticut is fighting the city of New London’s decision to use eminent domain to take their homes for a private developer who plans to replace the buildings with office space — and, possibly, new homes. No one maintains that the existing homes are unsafe; rather, the new buildings are meant to augment another private development adjacent to the neighborhood. The city even delegated to a private corporation the choice of which properties would be condemned through eminent domain. All of these private benefits are justified as a "public use" under the rubric of "economic development."

This view is insidious. It means no one’s home is safe, because homes do not generate daily commerce.

Yet our homes are the domain in which our freedoms are strongest. Homes are not so much part of the economy as they are the reason we engage in economic activity in the first place. Ultimately, the argument that homes can be seized to benefit greater commercial interests implies that justice and economic development are incompatible — a view the Mackinac Center unequivocally rejects.

The Institute for Justice, a good friend of the Center, is scheduled today to argue the case, Kelo v. New London, before the United States Supreme Court. The Mackinac Center has joined the case by filing an amicus brief backed by the Goldwater Institute and seven other market-oriented organizations. For both the Center and the Institute for Justice, the city of New London's actions recall Michigan’s infamous Poletown case, recently reversed by the Michigan Supreme Court in a legal dispute in which the Institute and the Center joined as amici curiae.

The human story behind today's Supreme Court argument is told movingly in an Institute for Justice Litigation Backgrounder. It describes the ordeal of Susette Kelo, a nurse who is working two jobs and fighting to defend her dream home, even as she cares for her recently disabled husband. "There are no words to explain what it feels like to have someone try to take your home away from you," she says. "You have to worry all the time." In contrast, the former president of the private development corporation attempting to seize her home once justified the action by saying, "Anything that's working in our great nation is working because somebody left skin on the sidewalk."

Twenty-five amicus briefs have been filed on behalf of Ms. Kelo and her co-plaintiffs. The list of people and organizations presenting these briefs is a distinguished one, including urban expert Jane Jacobs, author of "The Death and Life of Great American Cities," and University of Chicago Law School Professor Richard Epstein, author of "Takings: Private Property and the Power of Eminent Domain."

For all the modern arguments in these briefs, and despite the anonymity of this small group of homeowners, the battle here involves a pre-eminent human right in America's legal heritage. As described by the English statesman William Pitt in an 18th century speech in the English Parliament:

The poorest man may in his cottage bid defiance to all the force of the Crown. It may be frail; its roof may shake; the wind may blow through it; the storms may enter, the rain may enter — but the King of England cannot enter; all his forces dare not cross the threshold of the ruined tenement!

If the king could meet such a barrier, the wall facing private merchants should be impregnable. Any "skin on the sidewalk" should belong to the government officials who try to breach that wall. Justice demands that liberty reign at the threshold of our homes — and today the case will be heard.

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Thomas A. Shull is senior editor for the Mackinac Center for Public Policy, a research and educational institute headquartered in Midland, Mich. Permission to reprint in whole or in part is hereby granted, provided that the author and the Center are properly cited.