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Issue
Whether the Public Use Clause of the Fifth Amendment prohibits the government from transferring real property from one private owner to another to further economic development.
Facts
In 2000 the City of New London approved a multi-million dollar renovation project to help revitalize its ailing economy. The proposed project sprawled across 90 acres of land along the Long Island Sound and was intended to include a state park, museum, conference center, hotel, residential and industrial spaces, and research and development labs. The city authorized private companies such as Pfizer Corporation and the New London Development Corporation NLDC to acquire private, real property, including private residences, using eminent domain for the purpose of economic development. Increased tax revenue was expected as a result. Although most relinquished their titles without opposition, seven owners refused to give up their land.
Kelo and six other land owners sued, claiming primarily that the motivations behind the taking of their property failed to qualify as “public use,” and the companies themselves were private entities rather than governments. The Takings Clause of the Fifth Amendment reads, “[N]or shall private property be taken for public use, without just compensation,” and the Connecticut Constitution contains a similar clause.
The Court Below
The Superior Court of Connecticut was the first to hear the case. The court ruled in favor of the plaintiffs in part and against in part. It held that certain plans given for taken property were too vague to justify takings but that other takings were justified, including takings for private development to promote economic growth. See opinion below:
Kelo v. City of New London, AC 22914 Conn. Super., 2002
Both parties cross appealed to the Connecticut Supreme Court. The court ruled in favor of New London, holding that economic development was a valid public use and that the city’s use of eminent domain was constitutional. See opinion below:
Kelo v. City of New London, 268 Conn. 1 Conn., 2004
Kelo appealed to the Supreme Court and the Court granted certiorari. In a 5-4 decision, the Court decided in favor of New London, upholding the decision of the Connecticut Supreme Court. See opinion below:
Kelo v. City of New London, Connecticut, 125 S.Ct. 2655 2005
Question before the Court
“What protection does the Fifth Amendment's public use requirement provide for individuals whose property is being condemned, not to eliminate slums or blight, but for the sole purpose of ‘economic development’ that will perhaps increase tax revenues and improve the local economy?”
CCJ filed an amicus curiae in support of Kelo
Summary:
The Supreme Court needs to correct the “broad,” “purposive,” and “deferential” reading of the Takings Clause promoted by the Connecticut Supreme Court and restore the clause's original meaning, and the Public Use Clause requires that the property taken must be owned or controlled by the public, not private companies. Second, the government legitimately takes property only if it retains ownership or assigns ownership to a regulated common carrier. Next, the Public Use Clause does not allow condemnations of private property simply because it is useful or advantageous to redistribute private property. Finally, New London unconstitutionally took Kelo’s private property for developers’ private uses.
The Court should ascertain and follow the original meaning of “public use.” The plain meaning of “public use” requires the public to use the property it takes. The primary definition of “public” in 1787 was “belonging to a state or nation; not private,” and the primary definition of “use” was “employment for one’s own purpose.” The Constitution’s structure confirms that the public must use the property it takes—the government enjoys only enumerated, limited powers, and adding the power to take private property for “public benefit” is contrary to this limiting principle. Any eminent domain powers implicitly granted to Congress are derived from the Necessary and Proper Clause, not the Fifth Amendment, indicating that this power of eminent domain requires that a law have a “direct, obvious, and precise connection” to the enumerated end that it is supposed to further. If “public use” were synonymous with “public purpose” or “benefit,” as some argue, then the Takings Clause would open the government’s power to seize property far beyond the limited “public use” reasons established by the Constitution.
The Public Use Clause requires that the public actually own or control and use the taken property. English common law and Western political theorists who influenced the Founders have agreed with this view. In his Commentaries, William Blackstone described private property as “[t]he third absolute right, inherent in every Englishman.” He construed the power of eminent domain narrowly, leaving no room for the broad reading of “public usefulness,” “purpose,” or “advantage.” His view stems from the social compact understanding of a free society, where the proper object of government is “the protection of every individual’s private rights.” When necessity demands it, the government may take property, but not for individual interest alone. Grotius, Puffendorf, and Vattel agreed that the sovereign could take property under eminent domain and only for public necessity. The Fifth Amendment merely prohibits the government from taking property for public use without just compensation, but the “necessity” requirement for doing was reflected in the Necessary and Proper Clause.
Founding era state constitutions and court opinions reflect this narrow interpretation of eminent domain in light of the social compact. Phrased similarly to most other state constitutions, Pennsylvania's first post-Revolution constitution declared that “government is, or ought to be, instituted for the common benefit, protection, and security of the people.” Before serving on the Supreme Court, Justice William Patterson's circuit opinion in the case of Van Horne's Lessee v. Dorrance 1795 insisted that “[t]he preservation of property … is a primary object of the social compact” because “[n]o man would become a member of a community, in which he could not enjoy the fruits of his honest labour and industry.” Indeed, for most of America's history, courts consistently warned that the power to redistribute property from one private party to another “would be utterly destructive of individual right, and break down all the distinctions between meum et tuum, and annihilate them forever, at the pleasure of the state.” In stark contrast, Chapter 132 of Connecticut's statutory code presumes that city officials may and should redistribute land in whatever way is most advantageous for their cities.
The government takes property for “public use” only when the government retains ownership or assigns ownership to a regulated common carrier. In Beekman v. Saratoga & Schenectady R. R. 1831 the Court held that the government can take land and give it to a private recipient only if it is performing a service normally performed by the government and the recipient is subject to regulation. Apart from these qualifications, giving taken land to a private recipient qualifies as taking for private use. Justice Chase, in Calder v. Bull 1798, regarded “a law that takes property from A and gives it to B” as equally offensive in principle to an ex post facto law or a law altering contracts. Throughout the 19th century, the courts continually reinforced Chase’s decision. The 1837 decision in Bloodgood v. Mohawk & Hudson R.R. held that when “public use” becomes synonymous with public utility, public interest, or general advantage, takings can be given to private entities, and all limits on legislative taking are removed.
The Public Use Clause does not permit condemnations simply because the government finds it useful or advantageous to redistribute private property. This Court and other courts often misinterpret “public use” because of the rise of Progressive political theory, which views the statist government as of a greater importance than private property rights. Progressive judges in the early 1900s began to conflate “public use” to mean police power. Police power is the power to “regulate” what is necessary to promote the general health and welfare. The Founders associated the police power — specifically when applied to the taking of private property — with the invasive authority of a monarchy, and they included the Public Use Clause to protect against such an interpretation. Yet Progressives assume that modern democratic majorities are far less tyrannical than kings, and thus, have granted them unchecked power. In cases such as Burman v. Parker 1954 the Court has held that legislators could write “regulations” to promote virtually any public interest because legislators represent the people. Such a view directly contradicts the Founders’ understanding of natural rights and the government’s sole responsibility to protect such rights.
The City of New London unconstitutionally took Kelo's private property for developers' private uses. To decide in favor of Kelo, the Court must repudiate in part Berman and Hawaii Housing Authority v. Midkiff a 1984 case holding a very broad view of the states’ taking power, yet there are multiple ways to rule against New London without overturning the preceding decisions. First, neither previous case allowed the state to redistribute land from one private owner to another for mere economic advantage, while this case is taking land simply for “municipal development.” Second, Lucas v. South Carolina Coastal Council held that property can be taken if such taking aligns with “background principles of the State’s law.” Both Berman and Midkiff had such background law, while this case has no such law. Third, the Court could harmonize public-use case law with exactions case law. When a State or municipality tries to evade takings requirements by “exacting” land under the facade of police power, this Court requires the government to show that there is an actual need for the exaction and that the exaction is roughly proportional to the need. Using such precedent would prevent most takings for “municipal development.” Through using one of these three avenues, this Court can overturn the lower court’s decision without throwing out all recent eminent domain precedent.
Final Outcome
In a 5-4 decision, the Supreme Court upheld the decision of the Connecticut Supreme Court. It decided in opposition to CCJ’s argument, holding that New London’s “exercise of eminent domain power in furtherance of economic development plan satisfied [the] constitutional ‘public use’ requirement.” Such a broad view of eminent domain power was contested by Justices O’Connor, Rehnquist, Scalia, and Thomas in the dissent that largely agreed with CCJ’s argument.
