Constitution #2: The Takings Clause

The Objectivist
THE TAKINGS CLAUSE: THE SUPREME COURT GOES TO WAR AGAINST PRIVATE PROPERTY
Dunkirk-Fredonia Observer
Monday, January 28, 2008

In the Hall of Shame, few Supreme Court cases are more distinguished than Kelo v. New London, 545 U.S. ____ (2005). In it, the Court held that the government could take a citizen’s land, house, business, or farm and give it to another so long as the latter would likely pay more taxes, create a handful of new jobs, or do any number of other things the crass legislators want done.

In 2000, the city of New London, Connecticut approved a development plan that was projected to create jobs, increase tax revenues, and revitalize an economically distressed city. Some portions of forcibly taken land were to be transferred to a pharmaceutical mega-company, Pfizer. Other portions would be used for a waterfront hotel that would include restaurants, stores, a museum, and a parking lot. The unwilling sellers would then be given just compensation. In putting together the portions, the city authorized a private development group to purchase land from willing sellers and use eminent domain (forcible taking) to take it from unwilling ones. Members of this development group were privately chosen and thus unaccountable to voters.

Among the unwilling sellers was Wilhelmina Dery, who lived in a house that had been in her family for over 100 years. She was born in it in 1918 and her husband had moved into it when they married in 1946. Their son lived next door with his family in the house his parents gave him as a wedding gift. Another litigant, Susette Kelo, made extensive improvements in her house and prized it for her water view. The private agency had decided that these houses would be transferred to Pfizer or used for a parking lot or other support for the new village.

These homeowners pointed out that the Constitution prohibits such actions. The Fifth Amendment provides “[N]or shall private property be taken for public use, without just compensation.” This generally has been taken to put forth two conditions on government taking of property.
1. The government may take property from an unwilling owner only if it is for a public use.
2. The government may take property from an unwilling owner only if it provides just compensation.
Unwilling owners like Dery and Kelo claimed that because their property was to be given to other private parties, it was not for public use.

Traditionally, the public-use requirement for a taking has been limited to three areas. First, takings were allowed when private property was transferred to the government and used for things like roads, hospitals, or military bases. Second, takings were allowed when the government gave the property to private parties who then made the property available to the public. Examples included common carriers (for example, railroads). Third, takings were allowed to prevent harm. One example of this was a Washington, D.C. neighborhood that was so blighted that it threatened the community’s health and safety. The New London case did not fit into these categories.

In a five-to-four decision, Justice Stevens, writing for the majority, argued that the phrase “public use” should be interpreted as “public purpose.” The Court’s arguments rested solely on previous cases. It gave particular emphasis to two recent cases, one involving blighted land [Berman v Parker, 348 U.S. 26 (1954)] and an odd one in Hawaii in which a few landowners owned almost all the private land, which distorted the housing market [Hawaii Housing Authority v. Midkiff, 467 U.S. 229 (1984)]. Stevens reasoned that because promoting economic development was a public purpose, the city was free to forcibly take the individuals’ lands and houses and give it to those who would put it to better use. Stevens and his gang of four then said that the Court would defer to the legislature in deciding what counts as a public purpose, when a plan promoted it, and whether particular taking was part of the plan.

Justice Thomas (a man among boys) dismembered Stevens’s argument. Stevens argued that “to use” should be interpreted broadly to mean “to have a beneficial purpose.” First, Thomas pointed out that dictionaries at the time the Fifth Amendment was written and passed interpreted “to use” in a narrow sense to mean “to employ,” “to avail one’s self of,” and “to enjoy,” etc. Thomas pointed out that when the government takes property and gives it to another individual so the latter can pay more taxes, it strains the language to say the public is employing the property, availing themselves of it, or enjoying it. Second, Thomas noted that in two other places (Article I Sections 8 and 10) the Constitution mentions “use” and applies the narrower interpretation. Third, he argued that if those who framed and ratified the Constitution had meant by “public use,” “public purpose,” they likely would have used the “general Welfare” phrase found elsewhere in the Constitution. Fourth, he pointed out that the narrower interpretation fits with the common law and the early cases of government taking people’s property.

Thomas and Justice O’Connor (in a separate dissent) point out the deference given to the legislature is shocking because it makes it nearly impossible for someone to block a government taking. This is because the Court made it crystal clear that it will not evaluate any aspect of a government taking that could be reasonably challenged.

In essence, then, the Court decided that any private property may now be taken and transferred to another owner who will use it in a way that the government deems preferable. The greater benefit might consist in such things as paying slightly more taxes or making aesthetic improvements. The majority’s conclusion clashed with the language of the Constitution and the intent of those who wrote it and voted for it. The deferential treatment ensures that the government’s inevitable claim that transferring property to a new owner will benefit the public will be petty much automatically accepted.

After this decision, it is clear that a fundamental right, the right to property, will not prevent the government from taking someone’s property. This has and will protect the government’s forcible taking of homes, farms, motels, dollar stores, and poorer racial and ethnic communities and handing these over to wealthy corporations and land developers. Justice Stevens and gang of four (Ginsburg, Souter, Breyer, and Kennedy) elsewhere succeeded in making a mockery out of the Commerce Clause and deleting the Tenth Amendment. They are a judicial cancer that is slowly eating away at this country’s innards.