Kelo v. New London

A lot of people I know are unhappy with the Supreme Court's decision in Kelo v. New London. That is what interests me; my conservative friends wanted judicial intervention, which is fairly uncommon for them. Of course, they also tend to be very fond of private property.

At issue is the Takings Clause of the Fifth Amendment: "... Nor shall private property be taken for public use, without just compensation."

In ruling that "public use" is up to the legislative authorities to define, the court does not seem to have been doing anything new. Since the end of the nineteenth century, the Supreme Court has defined "public use" as "public purpose" rather than strict use by the public. That leaves a lot to the discretion of the legislatures. "Subject to specific constitutional limitations," the court held in Berman v. Parker (1954),

when the legislature has spoken, the public interest has been declared in terms well-nigh conclusive. ... This principle admits of no exception merely because the power of eminent domain is involved. The role of the judiciary in determining whether that power is being exercised for a public purpose is an extremely narrow one.

On the other hand, that does leave open the possibility of some judicial involvement, doesn't it?

In Kelo, Justice Stevens, for the majority, noted that it would be a violation of the Constitution for private property to be seized merely for the benefit of particular private interests. That would not be a public purpose. However, he wrote, the seizure at issue in Kelo was part of a plan clearly intended for the benefit of the community at large:

As with other exercises in urban planning and development, the City is endeavoring to coordinate a variety of commercial, residential, and recreational uses of land, with the hope that they will form a whole greater than the sum of its parts. To effectuate this plan, the City has invoked a state statute that specifically authorizes the use of eminent domain to promote economic development. Given the comprehensive character of the plan, the thorough deliberation that preceded its adoption, and the limited scope of our review, it is appropriate for us, as it was in Berman, to resolve the challenges of the individual owners, not on a piecemeal basis, but rather in light of the entire plan. Because that plan unquestionably serves a public purpose, the takings challenged here satisfy the public use requirement of the Fifth Amendment.

In a dissenting opinion, however, Justice O'Connor challenged this view, calling the decision of the majority an abandonment of a "long-held, basic limitation on government power":

Under the banner of economic development, all private property is now vulnerable to being taken and transferred to another private owner, so long as it might be upgraded -- i.e., given to an owner who will use it in a way that the legislature deems more beneficial to the public -- in the process. To reason, as the Court does, that the incidental public benefits resulting from the subsequent ordinary use of private property render economic development takings "for public use" is to wash out any distinction between private and public use of property -- and thereby effectively to delete the words "for public use" from the Takings Clause of the Fifth Amendment.

O'Connor argued that a distinction exists between the circumstances in cases like Berman and in the current dispute. In the earlier cases, "the relevant legislative body had found that eliminating the existing property use was necessary to remedy [a public] harm."

... Here, in contrast, New London does not claim that Susette Kelo's and Wilhelmina Dery's well-maintained homes are the source of any social harm. Indeed, it could not so claim without adopting the absurd argument that any single-family home that might be razed to make way for an apartment building, or any church that might be replaced with a retail store, or any small business that might be more lucrative if it were instead part of a national franchise, is inherently harmful to society and thus within the government's power to condemn.

My problem with the majority decision in Kelo is, as O'Connor says, that it seems to deprive "public use" of all meaning. If "public use" means "public purpose," and public purpose can include any form of social engineering not expressly prohibited by the constitution, then the Takings Clause guarantees nothing except payment for the loss of the property owner. As O'Connor noted, the term "public use" might as well not be in the amendment at all.

I suppose it is possible that the expression "taken for public use" is merely meant as a synonym for "taken by the government." This seems odd in context, however. The preceeding clause is the Due Process Clause, guaranteeing that property -- like life and liberty -- shall not be taken without due process of law. The entire Fifth Amendment, in fact, describes limitations on the power of the government, but none of its clauses actually mention the government. "No person shall be" is sufficient everywhere else in the amendment. I conclude, therefore, that "public use" involves something more specific than government intent.

Perhaps, though, it could be argued that the expression "public use" merely distinguishes eminent domain claims from, say, fines or damages imposed by the courts (covered in the Due Process Clause). A person need not be compensated for property taken in a court case, so the compensation requirement only applies to property taken for other purposes. There is a problem here as well, however. If "public use" is defined as any use demanded by the purposes of the government, then what distinction actually exists between the two clauses? Should not an individual also be compensated when a court imposes a fine or damages as part of enforcing the public purpose? Rather, I argue that "public use" must denote a distinct kind of appropriation of property.

So, if public use means something more specific than government intent, and if it is a distinct kind of government action, then it seems to me that there is a role for the courts in reviewing the actions of the legislature to make sure they constitute public use.

Finally, it may be argued (as Justice Stevens seems to believe) that "public use" does prohibit one kind of seizure: seizure of property to benefit purely private interests. There must be a plan for some public purpose to be accomplished by the seizure. But is this not the very purpose of government? How can a legislature do anything else? If the public purpose is synonymous with the purpose of the legislature for the public; if it is to be determined entirely by the legislatures and not by the courts; if it is not limited to actions taken to remedy harm; and if it can include predominantly private uses of property, then how can anything actually be called "private" and put out of the legislature's hands?

So I return to O'Connor's observation. Why bother having the term "public use" in the Fifth Amendment at all?

| Posted by Wilson at 18:50 Central | TrackBack
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