There may not be joy in Mudville anymore, but there is a growing sense of elation in Washington. Rumor has it that after more than three decades professional baseball is finally returning to the nation's capital.

I was at the last Senator's game. It was held at Robert F. Kennedy stadium in 1971, a wonderful place to play the national sport and a stadium literally down the street from the Capitol building. But now the idea is to build a new and larger stadium elsewhere in the city, a structure that will cost an estimated $440 million.

To build that stadium a lot of private property owners will have to be uprooted. Plans at this time are to pay local land owners some $65 million, a not inconsiderable sum but money which raises a question: Not to be a grouch, but what if the folks who now own what would be the land under third base don't want to sell? What if they prefer the nice view of the Capitol building and a short walk to the Metro subway?

We have a way to deal with such folks, we take their land using a process called eminent domain. This is an expression which used to mean two things: the government could only take your land for "public use" and it had to pay fair market value for what it took. This is the traditional essence of the "taking" clause of the Fifth Amendment, a protection written by our Founding Fathers so that government could not grab private property for public use "without just compensation."

The concept of "eminent domain" makes -- in the original meaning -- perfect sense. If government wants to build a highway between Boston and Kansas City, it plainly needs the right to acquire private property.

But the meaning of "public use" has been twisted to the point where it's unrecognizable. In a 1981 decision, Poletown Neighborhood Council v. Detroit, the Michigan Supreme Court said that in addition to a public use, government could take property when there was a "clear and significant public benefit" according to Ilya Somin, an assistant professor at the George Mason School of Law. (See: Michigan Should Alter Property Grab Rules, Detroit News, January 8, 2004)

Now this is different. We all understand that government needs property to build roads, but what if a private company needs land for an industrial facility? That's what happened at Poletown -- more than 1,000 homes were condemned so that an auto plant could be built.

When last I looked, no government agency produces cars, trucks or parts. In effect, the Poletown ruling allowed government to acquire land for private development. Worse, the awful logic of Poletown was soon adopted by other states.

But what about professional baseball in Washington?

Those in favor say that a new stadium will create jobs and spur neighborhood re-development, just like the MCI Center, home of Wizards basketball and Capitals hockey. More development means more tax revenues and that's good for the city. Also, Washington should have a professional team if only because the national sport belongs in the Nation's capital.

Those opposed point out that a copper smelter would also create jobs, that the MCI Center was built with private funds, that the estimated $5.5 million annual rent for the stadium is a joke, that an additional tax will be required to pay for the construction, and that the Baltimore Orioles traditionally and strongly object to a team in Washington, fearing it will devalue their franchise.

Also, of course, there is the little matter that $440 million might be used for other local needs, say school improvements, decent housing, better public safety and a water system with lower levels of lead. As to baseball being the national sport, take a look at FedEx field -- home of the Washington Redskins -- a constantly sold-out facility built with private money.

These arguments may be irrelevant, however. What if some local property owners do not want to sell their land? While it may have been possible to easily seize such property a few months ago under the Poletown concept, that's no longer the case.

In a fit of sanity, Poletown was overturned this summer by the Michigan Supreme Court in Wayne County V Edward Hathcock.

"The unanimous decision," said the Detroit Free Press, "is a decisive victory for property owners who object to the government seizing their land, only to give it to another private owner to build stadiums, theaters, factories, housing subdivisions and other economic development projects the government deems worthwhile." (See: Poletown seizures are ruled unlawful, July 31, 2004)

The Hathcock decision is certain to be raised by Washington property owners who wish to hold onto their land. The result is that it will likely take years before all the "taking" lawsuits can be settled -- and there's a good chance that the local government will lose.

Given such problems, it's likely that some nice empty meadow in Virginia not far from Dulles airport will one day house a new stadium and a professional baseball team. Meanwhile, private property owners in the shadow of the U.S. Capitol will get to keep what's theirs -- and so will other property owners nationwide.

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