Peeved Homeowner? Take Action!

Attorney Andrew Cohen analyzes legal issues for CBS News and CBSNews.com.

It is there for state legislators who now may be inundated with calls from angry property-owning constituents. It Is there for people who believe that nine individuals wearing robes in Washington have just pulled off the greatest coup since the Louisiana Purchase. It is there for the money-hungry developers who still may see the ruling as a carte blanche for rapacious commerical real estate deals. The middle ground solution contained in the language of the majority's decision ought to temper all that emotion and block the parade of horribles everyone seems to be predict in its aftermath.

The ruling does change the landscape for local governments and private developers. It does give them more legal support for whatever plans they may have, in Connecticut or anywhere else in the country, to condemn distressed areas in order to create new jobs and raise tax revenues through private development. And these are no small things.

The "takings" clause in the Constitution, which was a literal necessity when incorporated into the document over 200 years ago, has come over the years to justify more than mere taking of property for official government use, like a highway or military base. And this ruling does little to stem the tide of an expansive interpretation of the clause. That's why the Court's right-wing voted in the minority; why the Court's left wing was in the majority, and why Justice Anthony Kennedy, who frequently turns up as a swing vote, swung the ruling the way of more takings for more reasons.

But nothing in the decision means we all ought to lock our doors and wait inside for the g-men to come to take away our property on behalf of WalMart or those huge commercial or residential real estate companies. The key to THIS ruling, the middle ground in it, is that it is based in large part upon a Connecticut statute that allows takings for both "public use" and the "public interest." That broad language made it easier for the Court's majority to support the taking. And it didn't hurt either that the Court found no evidence that the City of New London had engaged in any monkey business with the developers.

The most important language of the ruling, to me, came when Justice Stevens wrote: "We emphasize that nothing in our opinion precludes any State from placing further restrictions on its exercise of the takings power. Indeed, many States already impose 'public use' requirements that are stricter than the federal baseline. Some of these requirements have been established as a matter of state constitutional law,which others are expressed in state statutes that carefully limit the grounds upon which takings may be exercised."

Translation? If you don't like the sorts of takings that the Court has just permitted, do something about it politically. Pressure your state politicians to stop pandering to the huge real estate lobby in your state and to come up with stricter takings' laws that unambiguously would block this sort of maneuver. Tell your local pols to stop wasting their time on symbolic, cheap, easy issues and to actually help protect individuals from the power of big business. If Connecticut's taking law had been more narrow, the outcome here could easily have been dramatically different.

The Court's majority didn't order these takings to occur and it practically invited citizens who don't want to see this land-grab happen again to change their laws in order to prevent. The only question now is whether there is enough political will to do so. Let's see — poor people on the one hand whose homes are most vulnerable and rich developers on the other who have a history of greasing the skids with pols. What do YOU suspect will happen? Where I come from they don't call that middle ground. They call that business as usual.

By Andrew Cohen