Chris and Andy Henry own a twenty-one-acre farm in Cranberry Township, Middlesex County, New Jersey. Their great-grandfather purchased it in 1850.
The parcel is hardly the bucolic site that the word farm implies. According to an article in NJ.com, it is surrounded by warehouses. Warehouse developers have been making offers to the Henrys for years, and the brothers have refused them all.
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However, Cranberry Township officials want the Henrys’ land. A state mandate requires the township to build 265 “affordable” housing units, and officials want the land for some of them.
“We love the town and have spent decades of our lives here, as have our parents and our ancestors,” Chris Henry explained. “We’re asking that the township committee look at other alternatives that don’t require this blunt force method of eminent domain against a family that does not want to sell their property.”
Private Property versus Public Power
Even Cranberry Township Mayor Lisa Knierim is sympathetic. Nonetheless, she fears that not fulfilling the state’s requirement could involve the township in costly legal battles. “No one is in favor of eminent domain,” she says. “No one wants to see a farm disappear.”
Former Mayor Jay Taylor openly takes the Henrys’ side. “There are other places to build, other options to consider, but there is only one Henry family farm, and once it’s gone, it’s gone forever. What message do we send our children if we tear down the field their ancestors fought to protect?”
Long-Standing Legal Doctrine
“Domus sua cuique est tutissimum refugium.”
This Latin phrase translates as “Everyone’s house is his safest refuge.” Today, people say, “A man’s home is his castle.”
This sentence is far more than an antique assertion. It is a tenet of English Common Law. In 1604, the prominent English jurist Sir Edward Coke explained. “The house of every one is to him as his Castle and Fortress as well for defence against injury and violence, as for his repose.” He went on to posit that “if theeves come to a mans house to rob him, or murder, and the owner or his servants kill any of the theeves in defence of himself and his house, it is no felony, and he shall lose nothing.”
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However, this basic property right sometimes conflicts with public necessities. The law that deals with such conflicts is called “eminent domain, “ and it also has its roots in medieval times.
When the United States gained independence, the new nation enshrined eminent domain in the Constitution, albeit rather peculiarly. The Fifth Amendment is best known for the right against self-incrimination. Nonetheless, it ends with the words, “nor shall private property be taken for public use, without just compensation.” This passage is known as the “takings clause.” As written, it meant that the government could only use this power for everyone’s benefit, and the owners must receive a fair market price.
Agent of Social Engineering
Under its long-standing interpretation, eminent domain excited little controversy. It usually ensured that a single landholder could not prevent the construction of a public road, airport or city hall. Properly applied, it meant that the common good trumped individual good. Fair enough.
Like much else, the rules of eminent domain changed in the mid-twentieth century. Nationwide, cities practiced a new idea called “urban renewal.” It was simple and superficially promising. The cities condemned “slums” in “blighted neighborhoods” to build safe and comfortable low-cost housing. However, governments usually turned over such lands to a private company that developed and managed them.
Voila! In one step, cities could clean up slums and house the poor.
The Courts Define Public Welfare
In the District of Columbia, a retailer objected. His store was in a run-down neighborhood. Nonetheless, his store’s building was in good condition. He made two legal arguments. First, his property was not “blighted.” Second, since the new building would be privately owned and not open to the public, the project was not a public use.
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In Berman v. Parker (1954), the Supreme Court expanded public use to “public welfare.” By this new standard, clearing out the entire neighborhood was well within the government’s powers. William O. Douglas, one of the most liberal justices ever to sit on the bench, wrote, “If those who govern the District of Columbia decide that the Nation’s Capital should be beautiful as well as sanitary, there is nothing in the Fifth Amendment that stands in the way.” Apparently, in unattractive neighborhoods, almost anything that the government wanted justified eminent domain. This was a first abusive interpretation of the “common good.”
For roughly fifty years, the Berman standard stood. Nationwide, city and state authorities displaced millions of poor residents, many of them homeowners. Functioning neighborhoods became massive apartment “projects.” These quickly deteriorated, often becoming centers of criminal activity. Municipal bureaucracies supported them whenever possible. No one lived there unless they had no other choice. Many were ultimately demolished. In her 1961 classic, The Death and Life of Great American Cities, Jane Jacobs documents these self-inflicted disasters.
Old Weapon, New Purpose
However, the march of government power is often arduous to limit. Eminent domain gradually expanded before another such case landed in the Supreme Court, Kelo v. City of New London (2005).
New London, Connecticut, is on the Long Island Sound, roughly equidistant from New York City and Boston. Once a center of long-shuttered light industries and home of the U.S. Navy’s Undersea Warfare Center, which closed in 1996, the state officially designated it a “distressed municipality.” The city believed its dark days were over when the pharmaceutical giant Pfizer Inc. decided to construct a $300 million research facility there. The plans included a conference center hotel, new residences, a restaurant and shopping district, as well as a pedestrian “riverwalk.” Urban professionals and their money would flood in.
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However, part of that site was a modest but pleasant, well-maintained, middle-class neighborhood. Many of the residents enjoyed the area’s convenience and proximity to the Sound. By no conceivable standard could it ever be considered “blighted.” Nonetheless, the city initiated the eminent domain process, claiming that the increased tax revenue would improve public welfare.
Nine homeowners took the city to court, arguing that the only reason the state was to turn over it to another private party, clearly violating the intent of the takings clause. The Supreme Court found in favor of the city. It replaced 1954’s “public welfare” standard with the even more expansive “public purpose.” The affected homes were purchased and demolished. Ironically, in 2009, Pfizer closed the research facility. It never completed other aspects of the project.
In 2014, Jeff Jacoby of the Boston Globe echoed the ex-Mayor. His conclusion to an article about the New London-Pfizer debacle is also fitting for this cautionary tale.
“The founders put the Takings Clause in the Bill of Rights for a reason. The desolation [in New London] is a grim reminder that where property rights aren’t secure, neither is freedom—and without freedom, there is nothing the government can’t destroy.”
There is a legitimate role for eminent domain in all civilized society, just as there is for government, per se. However, when the exercise of either becomes abusive, the right of private property becomes meaningless and the country slides into Communism.
Hopefully, a public interest law firm or legal organization like Pacific Legal Foundation will take the Henry brothers case pro bono all the way to SCOTUS. That would afford the justices a golden opportunity to reverse the great harm done to America and the rule of law through their Berman and Kelo decisions.
Photo Credit: © Susan Hutton – stock.adobe.com