On Tuesday, 2/22/05, the Supreme Court of the United States heard oral arguments for a case that could have a dramatic effect on the question of the use of eminent domain by governments all over the U.S.

The case, Kelo vs. City of New London (Connecticut) produced demanding and challenging questions from the justices to the attorneys representing both the plaintiff homeowners and the city. The property owners in danger of losing their homes and businesses were represented by the libertarian Institute for Justice's Scott Bullock, who argued that:

"If New London, Conn., can use its power of eminent domain to force Susette Kelo and six other owners to sell for the sake of jobs and tax revenue private-sector development brings, the Fifth Amendment guarantee that private property cannot be taken for "public use" without just compensation would be a dead letter.

Every home, church or corner store would produce more jobs and tax revenue if it were a Costco or a shopping mall,"

That IS the essence of the issue... can private property be forcibly taken simply to aid a development project that may provide jobs and more tax revenue to the city?

In recent decades, thousands of such developments have taken place, forcing individuals and small businesses out to provide space for large businesses and upscale housing developments. Virtually every city has done so, and/or has such plans in progress right now.

More than two dozen individuals and organizations filed formal Amicus Briefs in support of the homeowners. Each of these urged the justices to use the case of Kelo v. City of New London to end eminent domain abuse - where governments across the nation take one person's private home only to hand that land over to another private party for their use. Among those supporters were the NAACP and AARP, which argue that minorities and the elderly are often the victims of eminent domain abuse.

In addition, there were 33 rallies held around the nation in support of the Kelo plaintiffs and other threatened property owners. A local rally was held in Champlin at the home of a couple who have lived in their riverfront home for 28 years. Their property, and others, is coveted by their city for upscale housing development. Twin Cities media covered the rally, and KSTP has an excellent video from the rally.

The Kelo case is not going to be an easy one for the Supremes, given the already widespread use of eminent domain for a wide and fuzzy variety of reasons. If they come down hard in favor of a strict, traditional definition of "public use" (city buildings, public utilities, roads, etc.), local governments will really have to redefine how they go about "enhancing" their areas. They will have to reign in their incessant search for "economic development" that has included clearing large plots of land for big-box stores, corporate office buildings, big malls, and up-scale shopping areas.

If the justices' decision seems to give a free hand for more of the same land-grabbing, we can expect to see even more widespread sacrifice of the lives of individuals in favor of those who are richer and more influential. Undoubtedly, the justices are going to be reluctant to second-guess all local governments. Their decision is expected in July.

What makes this case seem so difficult is very simply that the use of eminent domain has run unchecked for so long. The Supreme Court hasn't handled an eminent domain case for 51 years. In the meantime, a few key cases like the Michigan Supreme Court Poletown decision in 1980 have seemed to provide precedent to give local governments free reign that has led to blatant abuse. That Poletown decision was dramatically reversed in 2004.

The big question: If the court protects individual property rights, and city's hands are tied by the decision, how will cities be able to create development, attract new businesses, and eliminate run-down areas?

Although that is the question being debated, I think that question contains a number of assumptions that really must be challenged. I believe these are the questions we should be asking:

1. Should cities be concerned about attracting businesses to locate within their borders?

2. Should cities be facilitating the development of big developments at all?

3. Should cities be able to judge whether an area is blighted, or run-down, or sub-standard?

Tomorrow, I'll try to present some pointed answers to those questions.