The court’s opinion held that a city may claim private property under the Fifth Amendment as long as it is done as part of a clear economic development plan which is intended to benefit the whole community (Levy, 2008). According to the Fifth Amendment of the United States Constitution, a property can be seized by the government as long as the owner is compensated justly. The Takings Clause of the Fifth Amendment provides for just compensation when a private property is to be taken by the government for public use. This power is called the eminent domain and the government has used this power for a very long time to take property that would be used for the benefits of the general public. However, a series of Supreme Court cases slowly changed all these (Sandefur, 2006). The local governments sought ways to eliminate blight as they began increasing control over the appearance and layout of various cities. The governments would take property as part of a local recovery effort without the provision for adequate compensation. Actually, Kelo is just a small extension of the trend. Justice Thomas’ opinion entirely rejected the trend while Justice O’Connor’s opinion says the step is too far as the city of New London had planned to take wide variety of private land and directly issue it private companies to be utilized as office parks and other functions. In as much as the acquisition of the property would benefit the public due to the revitalization of the area’s economy, it was not classified as a public use. However a preponderance of the court concluded that it fulfilled the constitution. This is an extraordinary opinion from the standpoint of judicial activism (Levy, 2008).
People protesting judicial activisms are particularly angry at the instances of acts being struck down by the executive, legislature and the judiciary. In the Kelo case, the court simply permitted an action of the New London officials which in real sense did not reflect the interest of the majority. This was viewed as activism since it enabled incursion of a sanctified right in the American culture when private possession of a property was ‘grabbed’ from the owner for the benefit of another private entity and not the public. In actual fact, it permitted the government to carry off a property from one person and then give it to another person (Ryskamp, 2006).
The Kelo decision was an activist decision. According to the constitution, the government cannot take land unless it is meant for public use. This is a definite requirement and it is highly relevant to the damage of activist judge to the American political system. It clearly demonstrates that if judges are capable of doing anything they want, then they are able to take away the constitutional rights of the American citizens. The constitution is meant to put some form of safeguard against the government, but in situations that judges ignore the safeguards, the constitution therefore does not adequately protect the citizens’ rights.
Levy, Robert A.; Mellor, William H. Eminent Domain for Private Use. The Dirty Dozen: How Twelve Supreme Court Cases Radically Expanded Government and Eroded Freedom. New York: Sentinel. pp. 155–168; 2008
Ryskamp, John, The Eminent Domain Revolt: Changing Perceptions in a New Constitutional Epoch. New York: Algora Publishing; 2006
Sandefur, Timothy. The Backlash So Far: Will Americans Get Meaningful Eminent Domain Reform?. Michigan State Law Review 2006: