Last week, Washington Post columnist George Will penned a column “Despotism in New London” (Sept. 19, 2004). In it, he described how Connecticut’s Supreme Court, by a 4-to-3 ruling, allowed the New London Development Corp. to use laws of eminent domain to condemn much of the city’s Fort Trumbull neighborhood, near a $270 million Pfizer research facility, and lease it to luxury hotel, condominium and office building developers. New London, Conn., is hard up for tax revenues, and if the property is taken away from middle-class homeowners and transferred to wealthy interests, it will yield the city more tax revenue.
The Fifth Amendment is very clear about takings. It says, in part, “nor shall private property be taken for public use, without just compensation.” The key phrase is public use. Public use means uses such as roads, bridges, military installations and public buildings. The Connecticut Supreme Court held that the only requirement for the taking of private property is that there be some public benefit. With that kind of reasoning, no one’s private property is safe because what’s a public benefit is subject to wide interpretation.
This kind of despotism is rife. John A. Rapanos, a 68-year-old Michigan landowner faces a 10-month federal imprisonment and up to $10 million in fines. Rapanos cleared and graded 175 acres of fallow farmland that he had owned since 1950 with the intention of constructing a shopping center. When the shopping center deal fell through, he leased the land to a local grain farmer. What was his crime?
Under the Clean Water Act, no person may discharge, dredge or put fill material into the navigable waters of the United States without a permit. The closest navigable waters to Rapanos’ land are in Saginaw Bay, some 20 miles away. Rapanos’ crime in the eyes of the U.S. Army Corps of Engineers was that he filled in depressions on his land without permission.
According to his defense at the California-based Pacific Legal Foundation, “the Corps has argued that isolated pools and puddles were magically transformed into ‘navigable waters,’ and subject to regulations, merely by the stopover of ‘migratory’ birds.” With the Corps’ reasoning, you could go to jail if you had a tree stump ground out and filled the hole.
In the early stages of Rapanos’ case, U.S. District Judge Lawrence Zatkoff – noting that a drug dealer had been before him that day – said rebelliously, “Here we have a person … who commits crimes of selling dope, and the government asks me to put him in prison for 10 months. And then we have an American citizen, who buys land, pays for it with his own money, and he moves sand from one end to the other, and the government wants me to give him 63 months in prison. Now if that isn’t our system gone crazy, I don’t know what is. And I am not going to do it.”
Rapanos’ sentencing has been delayed because the constitutionality of federal criminal sentencing guidelines, in another case, will be heard by the U.S. Supreme Court in October.
President John Adams (1797-1801) said, “The moment the idea is admitted into society, that property is not as sacred as the laws of God, and that there is not a force of law and public justice to protect it, anarchy and tyranny commence.”
Unfortunately, our courts have increasingly become tools for powerful vested interests, and the constitutional protections of private property mean less and less each day. The good news is that we have energetic minds at organizations such as the Institute for Justice and the Pacific Legal Foundation who are fighting against the emasculation of our Fifth Amendment rights and other constitutional guarantees.
But they cannot do it alone; we must help them. Remember Benjamin Franklin’s admonition: “Make yourself sheep and the wolves will eat you.”