On Thursday last week the U.S. Supreme Court delivered an astonishing decision that eviscerates the Fifth Amendment's protection of homeowners' property rights. In Kelo v. City of New London, the country's high court ruled, in effect, that a city government could invoke eminent domain to seize property for a private developer. (The City of New London had condemned homes and businesses along the city's waterfront for a new Pfizer pharmaceutical plant.) In other words, if a developer has set his sights on your neighborhood for an office tower or a shopping center and he has the right friends at city hall, the city can condemn your property, give you a few bucks for it, and transfer it to the developer.
The standard that used to prevent this sort of assault on property rights was the "public use" requirement for the exercise of eminent domain. The government had to have a genuinely public purpose for your property such as a highway or a reservoir to legitimately condemn it. Of course, local governments have abused that standard in the past, especially if the targeted property owners were politically weak. But now the Supreme Court's Kelo decision has made what constitutes a "public use" so elastic -- essentially it is whatever the local government deems it -- that hardly any pretense needs to be maintained to allow the government to seize one citizen's property for use by another. All that is needed to make this work is some sort of vaporous promise that the new use will increase jobs or tax revenues.
This ruling is an extraordinary increase in the power of local governments. Most of our disputes with government are with city hall, and now the denizens of city hall can intimidate a disgruntled citizen with the threat of losing his home if he doesn't shut up. This threat is even more acute for small businessowners, who are more likely to own storefronts, offices, and plants in areas targeted for redevelopment.
Even if this newfound power were not abused, what justice is there in letting city officials pick and choose who should own which private property? We all know how small-time politicians and bureaucrats get starry-eyed and turn soft-headed when presented with glitzy plans for redevelopment of this neighborhood or that. Think of nonsense like Guv Jen's "Cool Cities" or River City's wannabe bio-tech center "Medical Mile". When they come for your home to build that new office tower or shopping center, do you want the city to have the power to force you off with a check in the amount of your tax assessment? Or do you want the power to say no to no matter how much that private developer is ready to pay?
Fortunately in Michigan, despite the Kelo decision, you still have that power to say no. None of our local governments will be turning into Lootervilles yet. In Kelo the U.S. Supreme Court ruled that even though the Fifth Amendment may no longer protect property owners, individual states can do so through their own constitutions and statutes. Therefore, the decision last year by the Michigan Supreme Court that barred Wayne County from seizing a residential neighborhood for redevelopment into a private industrial park continues to protect Michigan property owners from politically-connected developers.
But don't take too much comfort from this, folks. Keep in mind that the Michigan Supreme Court overturned its notorious Poletown decision of a quarter-century ago that okayed the razing of homes by the City of Detroit to clear the area for a new General Motors plant. If Michigan courts can change the law from black to white in the span of twenty-five years under the same state constitution, there's nothing to stop them flipping again.