Kelo: An Examination
“I do not believe that this Court can eliminate liberties expressly enumerated in the Constitution…”
Justice Clarence Thomas, dissenting
Kelo v City of New London
June 23, 2005
Government’s exercise of its coercive power of eminent domain has become pervasive, so much so, as to render the original intent of the Fifth Amendment’s ‘Takings Clause’ meaningless to the point where the Founders would find it unrecognizable. Dissenting Justices in the Supreme Court’s decision of Kelo v City of New London (June 23, 2005), led by Justice O’Connor, open with a quotation from Justice Chase, who shortly after the ratification of the Bill of Rights wrote:
An ACT of the Legislature (for I cannot call it a law) contrary to the great first principles of the social compact, cannot be considered a rightful exercise of legislative authority…A few instances will suffice to explain what I mean…[A] law that takes property from A. and gives it B: It is against all reason and justice, for a people to entrust a Legislature with SUCH powers; and, therefore, it cannot be presumed that they have done it.” (Calder v. Bull, 3 Dall. 386, 388 (1798)(emphasis deleted).
Today the Court abandons this 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. Accordingly I respectfully dissent.
Justice O’Connor was joined by Chief Justice Rehnquist, Justice Scalia and Justice Thomas.
Instructive, as well, in their dissent is their admonition of the remedy offered by the majority that future petitioners “turn to the States” for relief. “Finally, in a coda, the Court suggests that property owners should turn to the States, who may or may not choose to impose appropriate limits on economic development takings,” they write. “This is an abdication of our responsibility. States play many important functions in our system of dual sovereignty, but compensating for our refusal to enforce properly the Federal Constitution (and a provision meant to curtail state action, no less) is not among them.”
Justice Thomas who finds the majority’s opinion disagreeable adds emphasis writing, “If such ‘economic development’ takings are for a ‘public use,’ any taking is, and the Court has erased the Public Use Clause from our Constitution, as JUSTICE O’CONNOR powerfully argues in dissent…I do not believe that this Court can eliminate liberties expressly enumerated in the Constitution and therefore join her dissenting opinion.”
The Court in Kelo voted 5-4 in favor of economic development takings. Yet, Carla T. Main, the author of Bulldozed: “Kelo,” Eminent Domain, and the American Lust for Land, points out in her book that Justice Stephens, who wrote the majority opinion, “later said in a speech before a bar association, in August 2005, that he personally regretted the Kelo decision but had felt compelled by precedent to rule against the homeowners.”
Justice Antonin Scalia describes ‘Originalism’ as “the philosophy of constitutional interpretation.” Regarding textualist and originalist interpretation of the meaning and intent of the Constitution, Justice Stephens, apparently with regret, chose to follow Supreme Court precedent. Yet, there is no mention in the Constitution that precedent should prevail over text. In Originalism, edited by Stephen G. Calabresi, as to “Textualist and Originalist Arguments,” it’s stated that “…in the Supremacy Clause, the document says that the Constitution, Laws and Treaties shall be the supreme law of the land, but it makes no mention of Supreme Court decisions. It is absolutely crystal clear that under the text of the Constitution the Supreme Court has no power to follow its own decisions when they conflict with the text.” (Chapter Nine, p. 200, Panel on Originalism and Precedent.)
Today, in the wake of the Kelo decision, an even more insidious form of eminent domain abuse is metastasizing across the land infecting farms, hamlets, towns and suburbs, visited upon property owners nationwide by unaccountable State agencies and surrogates, including foreign companies, in the awarding of lease contracts for up to 99 years in the development of trade corridors and private toll roads, without the consent of the governed. These economic development takings effectively transfer land from A and give it to B, thereby creating what is legally known as “constructive ownership.”
As directed by the opinion of the majority in Kelo, the race to immunize against economic development takings began immediately and continues unabated, not only in State capitals but in Washington as well. Congress has perennially considered federal legislation to cure Kelo by restricting the power of eminent domain primarily by crafting a definition for “Economic Development” takings and then making exceptions that precisely contradict their primary definition. Unfortunately, this fix has been far from the panacea many believe it to be.
For example, during the 112th Congress the House passed H.R. 1433 or the so-called “Private Property Rights Protection Act of 2012,” where the terms for their definition of “economic development” were immediately violated, as indicated below:
SEC. 9. DEFINITIONS.
In this Act the following definitions apply:
- ECONOMIC DEVELOPMENT- The term ‘economic development’ means taking private property, without the consent of the owner, and conveying or leasing such property from one private person or entity to another private person or entity for commercial enterprise carried on for profit, or to increase tax revenue, tax base, employment, or general economic health, except that such term shall not include –
- Conveying private property—
- to public ownership, such as for a road, hospital, airport, or military base;
- to an entity, such as a common carrier, that makes the property available to the general public as of right, such as a railroad or public facility;
- for use as a road or other right of way or means, open to the public for transportation, whether free or by toll (emphasis added); and
- for use as an aqueduct, floor control facility, pipeline, or similar use;
Aside from the obvious redundancy of the exception made for public “roads” in Subsection (1)(A)(iii) above, “constructive ownership” is established by long term lease agreements and private toll roads fulfill the definition of ‘economic development’ where the taking of private property from one private person or entity transferred to another private person or entity is for commercial enterprise carried on for profit. The “SEC. 9. DEFINITIONS” language for H.R.1433 is a tortured attempt by Congress to sidestep the Constitution in favor of “powerful political forces.” To be sure, such legislative language is proposed at the expense of private property rights and precisely what the dissenting opinion in Kelo warned against. As a result, free market capitalism takes a back seat to State capitalism, where government chooses the winners and losers. It matters not the form “economic development” takings presume, they are just one step removed from the creeping socialism of Karl Marx’s Communist theory on private property that is “summed up in a single sentence: Abolition of private property.”
An examination of Kelo shows the dire condition of today’s property rights protections in America. It also can show how citizens can protect themselves until Kelo is overturned.
- In 2005, the Supreme Court issued a decision in Kelo v. City of New London that allows state and local governments to take private property from one private person and give it to another for the purpose of economic development.
The Supreme Court’s decision allowed the city of New London, Connecticut, to take private dwellings from individual homeowners, some of whom had occupied their homes for generations, to build commercial research and development office buildings, retail shopping locations, a conference hotel, a commercial marina, and a residential development, among other things.
- The decision flies in the face of the express language of the Constitution that allows takings of private property for just compensation only if the property is taken for a “public use.” U.S. Const., amend. V, cl. 3.
The Fifth Amendment to the Constitution provides, following several other fundamental rights: “[N]or shall private property be taken for public use, without just compensation.” This formulation could not be clearer. Even with just compensation, the taking must still be for a public use, not just one that is “open” to the public.
- Economic development by and for the benefit of private entities is not “public use."
Utilizing an unaccountable state agency, the New London Development Corporation (NLDC), the City of New London’s proposed redevelopment would have put the land taken in the hands of private developers to build private commercial and residential facilities. Hotels, residential development, commercial office buildings, and residential development by private developers for private commercial and residential use cannot be considered public use.
By extension, it’s egregious for the State to take private land under eminent domain and put it in the hands of private developers, often foreign companies, for the benefit of private entities to build “ancillary facilities” along the right of way of private toll roads. This cannot be considered public use. The Texas Department of Transportation (TxDOT) is notorious for using the power of eminent domain to take private property from A and give it to B, a private entity. TxDOT’s July 2012 request for information, which constitutes a blatant example of eminent domain abuse for economic development, listed ancillary facilities as “providing toll customer support services including a gas station, garage, store, hotel, restaurant, railroad tracks, utilities and telecommunications facilities and equipment.”
- In Kelo, the Court stripped individuals of their protection from abusive governmental takings that was the original purpose of the Fifth Amendment.
This is precisely the kind of taking that the Fifth Amendment was designed to stop. The Founding Fathers were concerned about powerful political forces using their influence to persuade government to do that which they could not – secure the private property of others for their benefit. Real estate developers today are a potent political force that can use the powers of state government to seize the property of others for their private commercial gain.
- As a result of Kelo, state legislatures and state and local agencies can take any private property for economic development purposes if it will result in more jobs, tax and toll revenue, or improved economic conditions.
Despite the “public use” requirement, the supposed “public benefit” of jobs, tax and toll revenue, and economic benefits now can justify taking private property for the private commercial benefit of others.
- Enactment of state statutes limiting takings of private property to the original understanding of private use is the only protection against abusive state takings until Kelo can be overturned.
Until Kelo can be overturned, the only protection against abusive takings lies with the state legislatures themselves. State economic development statutes must be reexamined to limit the power of state and local agencies to take private property for private commercial development.
- Kelo must be overturned.
The Supreme Court was simply wrong and must correct itself. The Court could not have intended to force citizens to seek protection from the same legislature from which the Fifth Amendment was intended to protect it. The fox is now in charge of the chicken coop and must be expelled. A new case must be brought to overturn Kelo.
- The public must insist that state legislatures enact new laws to protect against abusive takings.
While a new case to overturn Kelo is built, citizens must band together to reform the economic development laws in their states to prevent abusive takings. These laws must reject the “public benefit” definition permitted (but not required) by the Supreme Court and adopt the plain meaning of “public use.”
- Those laws must adopt specific standards to define a “public use,” including lists of specific examples, such as public roads, government buildings, public rights of way, and railroad lines.
Public use must be strictly defined. Lists of examples of public uses are helpful and provide guidance to state and local agencies and, if necessary, courts. Public uses should exclude any private control of public assets that would defeat the purpose of the protection, such as private ownership of roads or the legal manifestation thereof known as “constructive ownership.”
- At a minimum, public use must be defined as regular use or free access by the general public or the government; government uses include government service centers, prisons, National Guard bases, and other government facilities.
Regular use or access by the public or the government is a good starting point for defining public use. A government job training center, a new city hall building, even a railroad line subject to common carrier regulations all have this characteristic. Private research and development office facilities do not. Private toll roads do not. Other factors could also be important, such as the existence or not of any private commercial profit motive.
- Certain private uses could be expressly excluded from any taking.
Lists of specific uses such as use for factories, private offices, or residential development should disqualify a taking from the definition of public use.
- New laws must expressly prohibit the taking of one person’s property and transferring it, directly or indirectly, to a private entity for the purpose of increasing job opportunities, tax and toll revenues, or economic growth, unless the property meets specific standards for blight.
Economic development should justify a taking for public use only if property meets specific standards for blight. The Kelo properties were not blighted but were taken anyway.
- Standards for blight must be high and reflect legitimate concerns for public health and safety.
People owning and living in homes that substantially meet housing codes and have not been abandoned should not lose their property to eminent domain. Only properties that create hazards to the public, such as attracting vermin or presenting a risk of collapse should be considered blighted.
- Any economic development project for which eminent domain is used to condemn blighted property must preserve unblighted property within the project.
An earlier eminent domain case in the Supreme Court (Berman v. Parker 1954) allowed the taking of an unblighted commercial department store within a blighted neighborhood. Clearly, development could have taken place around the store and not necessitated the taking.
- New laws must limit takings that are intended to result in or have the effect of providing substantial private benefits.
Such private benefits are a red flag that a captive legislature or state agency has done the bidding of private interests. While such benefits could be an indirect effect of a taking – through improved economic conditions around the taken property – but should not be a motive for it.
ON THE WEB