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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. . . . Any property may now be taken for the benefit of another private party, but the fallout from this decision will not be random. The beneficiaries are likely to be those citizens with disproportionate influence and power in the political process, including large corporations and development firms. As for the victims, the government now has license to transfer property from those with fewer resources to those with more. The Founders cannot have intended this perverse result. “That alone is a just government,” wrote James Madison, “which impartially secures to every man, whatever is his own.”

Justice Clarence Thomas sounded a jurisprudential fire alarm in his dissent when he said, “Something has gone seriously awry with this Court’s interpretation of the Constitution.” And I do not believe he was only speaking about this specific case either. Justice Thomas, clearly the most faithful to the Natural Law of all current sitting justices, also expressed his concern that the Court permitted the government to value its economic interest above the individual homeowner’s personal values that are protected by the Natural Law. The Natural Law mandates that the choice of personal values (a book or TV, a bicycle or car, early to bed or up all night) is completely immune from government interference unless the exercise of that choice substantially and unfairly interferes with another’s Natural Rights.

In a bitter twist of fate, on November 9th 2009, Pfizer Corp.—the intended beneficiary of the Kelo cottage—announced that it would leave New London in 2011, moving most of its New London employees to nearby Groton, Connecticut. This proves that the New London City Council is not as intelligent as it originally thought. Apparently, Pfizer was allowed to determine what was best for its property, and it determined it was best to get away from its relationship with the New London government. The “urban village” shopping center was never built, and the lot that was seized remains vacant and barren. So now, the City of New London, which seized the Kelo real estate expecting a real estate tax windfall, collects no taxes on the earth where the Kelo cottage once stood. The government thought this piece of land would better serve the community as a vacant lot, rather than remain the homes of its lawful owners.

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Government’s Just Power

Kelo was a case of seizure by the State of Connecticut. States’ appetites for private realty are voracious, and so is the feds’. How can the federal government even make an argument to legitimize any eminent domain power? The Constitution delegated specific powers to the federal government, reserving all other powers to the states, including the police power. Thus, whatever power the federal government has to secure rights is limited to federal territory and is limited to the exercise of one of the federal government’s enumerated powers. Any federal effort to regulate private land for the public good must be accomplished under some other enumerated power. Any such effort to regulate would then be constrained by the Just Compensation Clause; if the private property owners are not compensated for the losses they incur by federal regulations, the costs for the “public benefit” of these regulations fall entirely on the private property owner.4

Unlike the police power, which is to be restricted to the protection of rights, the eminent domain power is not a just power. A just power is a power possessed by individuals, and delegated in whole or part to the government. No private person would have the right to condemn any of his neighbor’s property, no matter how good the intentions. So, if persons lack this power themselves, how could they delegate it to government? And if not delegated to the government, then the government lacks the power.

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“We Are the police. Put