What would you say if your city government decided to make you sell your home so Walmart could build a new outlet on your property? "If the price is right," you might well respond, with a shrug. But what if no compensation could make you willing to leave your home, because of sentimental reasons or simply because you just don’t want to move? Would your city then be justified in forcing you to sell your home and property anyway for "the public good?"

This is the situation that is facing a registered nurse named Suzette Kelo, who renovated a run-down Victorian house with a water-view in New London, Connecticut. The city wants her and her neighbors’ property to turn over to commercial enterprises that will increase the struggling city’s tax base. The neighbors took the city’s above-market offers and sold out. Kelo says "no".

She is saying "no" all the way to the U.S. Supreme Court. She is challenging this exercise of "eminent domain" as invalid, because the Fifth Amendment of the Bill of Rights intones: ”Nor shall private property be taken for public use without just compensation.” Kelo and her lawyers are arguing that "public use" means what it says: public buildings, roads, parks, and facilities.

But they are fighting a slippery slope that, as Dizzy Dean used to say, has already been "slud."¹ Urban renewal in scores of cities was made possible by eminent domain that the courts approved despite the fact that it took away private property in decaying urban areas to turn over to private developers. When the Supreme Court was consulted then, in the landmark 1954 case of Berman v. Parker, it broadened the definition of public use, ruling that "public ownership is [not] the sole method of promoting the public purposes of community redevelopment projects." Thus a "public" purpose can include a more general public benefit that encourages private development and private profit and ownership in addition to jobs and public revenue.

Following Berman, cities all over the country are doing to private citizens what New London wants to do to Ms. Kelo, and her battle has tremendous support in the public, the media, and quite a few legal scholars. After all, as Kelo’s lawyer told the Supreme Court in oral argument, "Every home, church or corner store would produce more jobs and tax revenue if it were a Costco or a shopping mall." Is there no limit to what will constitute "public use’?

The legal issue is a close call. The ethical issue may not be. Obviously the ethical system that supports eminent domain is utilitarianism, in which the good of the few may be sacrificed if the good of the many is extensive enough (and the harm to the few isn’t unacceptably harsh). But the practice of utilitarianism has to be watched and monitored carefully, lest it become heartless and destructive. Kelo’s lawyer is undoubtedly right; even the lawyer for New London agreed with his assessment of the current sweep of eminent domain.

Justice O’Connor posed this hypothetical: ”For example, a Motel 6. A city thinks, ‘If we had a Ritz-Carlton, we’d get higher taxes.’ Is that OK?”

”Yes, that’s OK,” the city’s attorney replied.

When Justice Scalia chipped in, ”You can take from A and give it to B, if B pays more in taxes?” New London’s advocate replied, ”Yes, if it’s a significant amount.”

It’s time to apply a little reciprocity (as in The Golden Rule) to the equation to cool down utilitarianism run amuck. Eminent domain becomes too easy a solution to lagging municipal tax revenue if the welfare and desires of individual property holders is deemed unimportant. Not one American in 1000 would gladly give up their home to make room for a shopping mall, and the essential wrongness of the act of taking the home by force of law is palpable.

Eminent domain has always been an exception of necessity to basic American principles of freedom and individual rights. One of the earliest Supreme Court cases had it right, when Justice William Paterson wrote in a 1795 case, Vanhorn’s Lessee v. Dorrance:

”The despotic power ….. of taking private property when state necessity requires, exists in every government,” but the state must not invoke that power ”except in urgent cases.” Justice Paterson could not imagine any situation that would justify ”the seizing of landed property belonging to one citizen, and giving it to another citizen. ….. Where is the security, where the inviolability of property, if the legislature ….. can take land from one citizen, who acquired it legally, and vest it in another?”

Bingo. New London is attempting to do wrong to Suzette Kelo, stretching the principle of eminent domain past fairness and consideration. The Supreme Court should seek to re-align the law with ethical principles, and end the slippery slope created by Berman, not by over-ruling it, but by setting strict limitations that will protect the Suzette Kelos of America.

New London will still be free to expand its tax base. It will just have to figure out a way to do it without kicking Suzette Kelo out of her dream house.

1. "Dizzy Dean": For non-baseball fans and those under 40: Dizzy Dean was an eccentric Hall of Fame pitcher in the 1930s who later became a popular television and radio baseball broadcaster. Completely unschooled, Dizzy invented new words and creative grammar that elicited protests from educators and delight from listeners. "Slud" was his most famous invention, and he used it often.