Extending takings at the cost property of rights?

Recently, the United States Supreme Court handed down what appears to most as a monumental case which denigrates the personal property rights of the citizenry. Thankfully, that initial response is somewhat blown out of proportion.

In Kelo v. New London, 545 U.S. __, __ S.Ct. __, 2005 WL 1469529 (2005), the Supreme Court considered a situation where the city of New London, Connecticut, attempted to revitalize a residential area surrounding an abandoned Navy base. The redevelopment aimed to bring more tax revenue and jobs into the area. Unfortunately, this plan required the displacement of 115 private property owners. Under the City's redevelopment plan, the City would condemn the private property through its eminent domain power and a state statute that allowed the City to take private property for redevelopment. The Court majority comprised of Justices Stevens (writing the opinion of the court), Kennedy, Souter, Ginsburg, and Breyer, concluded that the taking of the private property did not violate the takings clause of the Fifth Amendment of the Constitution.

The initial idea of the Court's holding is repugnant. At first glance, the Court's opinion appears to validate public takings for private benefit. This is the antithesis of the ideal behind the takings clause. Fifth Amendment jurisprudence has always condemned the proposition that government may take the property of private citizen A to give to private citizen B. Rather, for government to take private property, the Constitution requires that the taking satisfy some public use. Typically, government projects like building roads, railways, or schools satisfy this end of the public use doctrine. Kelo, though, aimed to take private property to allow the division of the property for building private office complexes that would house private business, and in the process creates 1,500 new jobs. The development would also bring in more tax revenue to the City. The impetus for the taking was Pfizer's plan to build a new research facility in New London. It’s important to note that part of the plan included a public Coast Guard Museum. The City conceived the plan after considerable research, planning and organization, expending time and energy to assure that the project would create the benefits to which it aimed. While on these facts it appears the City displaced 115 private landholders for the benefit of only a few other private interests, the Court majority concluded otherwise.

Justice Stevens began by reiterating the history of takings clause jurisprudence. He concluded that the Court and the law had departed from the conservative notion of takings restricted to public use only. Rather, the majority reasoned that a taking must fit a public purpose. This public purpose could include economic redevelopment. The majority quickly pointed out what was not at stake in this case, stating:

"...without a bright-line rule nothing would stop a city from transferring citizen A’s property to citizen B for the sole reason that citizen B will put the property to a more productive use and thus pay more taxes. Such a one-to-one transfer of property, executed
outside the confines of an integrated development plan, is not presented in this case."

Moreover, the Court concluded that this was not the issue presented before the Court; rather, facts supporting this bright line rule would appear more suspect of serving only a private purpose. The Court took great pains to establish the historical definition of public purpose, fitting it to situations that include the benefit of some private parties as well as the public. Similarly, the Court relied on a strict notion of federalism in making its decision. Much of the verbiage points to the extent to which New London prepared the redevelopment plan, and how the judiciary is not in a position to value land like municipalities or state agencies who understand the situation more thoroughly than the courts.

Ultimately, the Court validated takings that are subject to extensive executive or legislative review in the event that the takings satisfy a reasonable public purpose.

The Dissenters vehemently disagreed with this conclusion. Justice O'Connor, joined by Justices Thomas, Scalia, and Chief Justice Rehnquist, argued that this holding would allow the types of public takings for private use that the law finds repugnant to the concepts of private property. O'Connor argues for the bright line rule rejected by the Majority, positing that it’s the only clear way to protect private property owners from the abuses that emanate from the Court's decision.

The Dissenting opinions have a significant point. It does not take much to swing the balance of reasonableness in favor of a private owner. While the Majority asserts that the factual nature of the holding will limit any possible abuse, specifically the extent to which the City planned the redevelopment along with the projected ubiquitous benefit to the City's constituents, fails to overcome the expansive definition of public purpose upon which the Majority hangs it's hat. The decision denigrates the value of private ownership by lowering the threshold required to permissibly declare eminent domain. This decision is dangerous for two reasons: first, because it reduces the standard applied to government in takings cases by evicerating the public use doctrine and establishing the public purpose standard; and second, it opens the door to possible abuse by creating an ambiguous standard the Majority admits fits almost all of government action.

For those fearing the loss of their property to tyrannical government, the Majority does offer solace. Kelo is a very fact specific decision, and does not preclude states from creating strict laws preventing takings. Unless the Government goes to great lengths to plan a development where your home sits, the Court will most likely not allow the government to take your home. This means that many of the stories springing up in the news about private business petitioning for eminent domain and condemnation of private homes rely on the erroneous proposition that Kelo gives them that right.

Our homes may be safe at the moment, but the ambiguity of public purpose has yet to be tested and may ultimately prove the loophole for government to publicly take property from one private owner to give to another, simply by justifying every government act as serving the public purpose.