Last week’s U.S. Supreme Court decision in the Kelo case was disappointing, but it was not surprising given the backdrop of the high court’s prior decisions on this issue.
The Court essentially held in Kelo that a city may “take” one individual’s property and transfer it to another individual for private use without violating the constitutional provisions of the Fifth and Fourteenth Amendments, which would seem to limit such takings only to those for “public use.”
In 1954, in Berman v. Parker, the Court upheld a District of Columbia plan to condemn blighted property, acquire it, and transfer the land to other private parties for redevelopment, including the construction of low-income housing. The constitutionality of the plan was challenged by the owner of a department store that was part of the area to be acquired but was not blighted. In declaring the provision constitutional, the Court stated:
We do not sit to determine whether a particular housing project is or is not desirable. The concept of the public welfare is broad and inclusive. … The values it represents are spiritual as well as physical, aesthetic as well as monetary. It is within the power of the legislature to determine that the community should be beautiful as well as healthy, spacious as well as clean, well-balanced as well as carefully patrolled. In the present case, the Congress and its authorized agencies have made determinations that take into account a wide variety of values. It is not for us to reappraise them. If those who govern the District of Columbia decide that the Nation’s Capital should be beautiful as well as sanitary, there is nothing in the Fifth Amendment that stands in the way.
Thirty years later, the Court found constitutional a Hawaii state statute that forced landowners to sell their property to their tenants. The harm to be remedied in Hawaii Housing Authority v. Midkiff was that nearly half of the land in the state was owned by state and local government, and another 47 percent of the land was in the hands of only 72 landowners. The Court held that “the social and economic evils of a land oligopoly” qualified as a valid public use. Further, the Court held a state taking would be constitutional so long as it was “rationally related to a conceivable public purpose.”
The difference in Kelo, and the respect in which this case goes farther than prior cases, is that the property to be taken by the city is not blighted, but rather is an area of well-maintained single-family homes near the waterfront of New London, Connecticut. The city plans to redevelop the area with a waterfront conference hotel, restaurants, shops, commercial and recreational marinas, a pedestrian riverwalk, 80 new upscale residences, and other office and commercial space. The plan would create 1,000 jobs, the city concluded, and bring increased tax revenue to the economically distressed community. The Court found this constituted a sufficient public purpose.
In Kelo, the Court divided on familiar lines. The opinion, authored by Justice Stephens, was joined by Justices Breyer, Souter, and Ginsberg. Justice Kennedy also joined the majority opinion, providing five votes for it. Dissenting were Justices O’Connor, Scalia, Thomas, and Rehnquist.
The danger, as pointed out by Justice O’Connor in her dissenting opinion, is that there is virtually no limit to the takings power established by the majority:
For who among us can say she already makes the most productive or attractive possible use of her property? The specter of condemnation hangs over all property. Nothing is to prevent the State from replacing any Motel 6 with a Ritz-Carlton, any home with a shopping mall, or any farm with a factory.
The majority opinion noted nothing prevents state legislatures from adopting laws that restrict the extent to which private property may be taken and restrict the definition of “public purpose.” Thus, as The Heartland Institute’s James M. Taylor has pointed out, “the Court’s decision illustrates the vital role state legislatures and local representative government have in protecting our property rights.”
Attorney Maureen Martin ([email protected]) is a senior fellow of The Heartland Institute and managing editor of Lawsuit Abuse Fortnightly, a Heartland Institute newsletter documenting how lawsuit abuse deprives victims of justice and undermines the Rule of Law in the United States.