The government kicked Wilhelmina Dery out of her home when she was 87 years old. She had lived in her New London, Conn., house since her birth in 1918, along with her husband and much of her family. In 2005, the U.S. Supreme Court in Kelo v. City of New London upheld the city’s exercise of the eminent domain power, effectively telling Dery and 14 of her neighbors that they had to sell their homes to make way for private business interests that sought to redevelop their modest neighborhood.

The Fifth Amendment to the U.S. Constitution permits the government to take private property for “”public use”” so long as the government provides “”just compensation.”” This means that if the government wanted to extend I-10, but the expansion plans ran through your house, the government could acquire the title to your property so long as it paid you fair market value for it.

The difficult question in eminent domain cases is what constitutes “”public use.”” Easy definitions include instances where the government builds a new road or municipal building. Less clear-cut cases involve situations where the government wants to “”revitalize”” a slum or “”blighted”” area by building a new shopping mall that could potentially provide jobs and tax revenue to the city.

The Kelo decision involved a private development project in New London, in which the city used the power of eminent domain to force the sale of 15 homes to make way for commercial development. The land on which Dery and her neighbors’ homes sat was to be used to build a large research facility for Pfizer, Inc., a pharmaceutical company, as well as for office space, a shopping mall and a new marina, most of which would end up in private hands.

In a 5-4 decision, the Court’s liberal wing, along with the protean Justice Kennedy, found New London’s arguments persuasive ð- enough so to hold that the transfer of land from a private individual to a private corporation on a purely speculative economic project was permitted under the Fifth Amendment’s “”public use”” requirement. The Court surmised that job opportunities and tax revenues generated by the Pfizer project provided the community enough of a benefit to constitute “”public use.””

Of course, the Court downplayed the fact that Pfizer’s plan, like any development project, was totally speculative. Imagine, for instance, if Pfizer were to tank two years after the plan was approved because it developed a dangerous new drug.

However, in a gloomy dissent that is perhaps one of the greatest legacies of her last full term, Justice O’Connor observed the greater danger in the court’s reasoning: “”The specter of condemnation hangs over all property. Nothing is to prevent the State from replacing any Motel 6 with a Ritz-Carlton, any home with a shopping mall or any farm with a factory.””

Fortunately, there is a silver lining in the Court’s egregious Kelo decision. Since the Kelo ruling, almost every state in the union has proposed legislation, constitutional amendments or citizen initiatives designed to restrict the power of governments to use eminent domain to evict homeowners for private development.

The issue of eminent domain also appears to be at least one cause that has united red and blue Americans. Antið-Kelo legislation in South Dakota, for instance, passed the state Senate by unanimous vote, with a 67-1 tally in the House. An amendment to the Michigan Constitution was approved by the House 106-0 and 31-6 in the Senate; it goes before the voters for ratification in November.

The Arizona Constitution already places strict limits on the government’s use of eminent domain powers. But that has not stopped lawmakers from proposing even tighter regulations. So far in the 2006 session, legislators have filed nearly 20 bills either banning or further restricting the power of eminent domain. Some referendums backed by legislative leaders could place the issue before Arizona voters on the November ballot.

All of this indicates that Arizona lawmakers are doing what they should to protect homeowners from the government. Voters would be wise to support these efforts, as well as referendums that could appear on the ballot, so that the “”specter of condemnation”” will not hang over your, your parents’ or your grandparents’ property.

Jon Riches is a second-year law student. He can be reached at
letters@wildcat.com.