The main issue that revolves around this case is the issue of Eminent Domain. In KELO V. CITY of New London (2005), the United States Supreme Court upheld the use of the eminent domain power to take property from homeowners for the purpose of economic development. Under the Fifth Amendment, eminent domain may be used only for a public purpose. Conversely, public purpose is a wide notion. At this point Eminent Domain refers to the authority of the government to acquire certain properties for public use, for example building a freeway. The idea dates to the early seventeenth-century; in U.S. law, underneath the takings clause in the Fifth Amendment, the authority is restricted by the requirement to offer compensation for the property acquired. Therefore, in the instance where the city desires to construct a highway through ones property, they have to first tender an intention to purchase the property at market value. Though if one refuses to sell, the power of eminent domain lets the city take the property anyway, one still has to be compensated. Over the last 100 years or so, courts have interpreted the term “public use” increasingly broadly, to allow such projects as urban renewal, municipal stadium construction, and so forth (Berger 23).
However, are there any limits on the state’s power of eminent domain? Is the Supreme Court the final arbiter in all cases? Does the Fourteenth Amendment integrate the Bill of Rights? Is federalism dead? Is decentralization an elusive dream? These questions have once again been raised since the U.S. Supreme Court handed down its already infamous June 23, 2005, decision in the case of Kelo v. City of New London1. In the Kelo decision, the city of New London, Connecticut, exercised the power of eminent domain to seize the private property of Suzette Kelo and eight other petitioners who owned fifteen properties in the historic Fort Trumbull area of the city (Cottrol et.al 45). The property owners claimed that the forfeiture of their property violated the “takings” clause of the Fifth Amendment, Which says… nor shall private property be taken for public use, without just compensation…, because their property was seized for an economic development scheme that was, according to the Connecticut Supreme Court, projected to create in excess of 1,000 jobs, to increase tax and other revenues, In addition to revitalize an economically distressed city, including its downtown and waterfront areas2.
The fact that the property was seized by a non-profit entity (the New London Development Corporation) authorized by the city to obtain property in the city’s name, by buying, or by eminent domain, did not take part in the question. The Connecticut Supreme Court should have ruled as the Ohio Supreme Court did recently when it reversed the decision of a lower state court and halted the city of Norwood and a developer from using eminent domain to take private homes for commercial development3. However, the fact that it did not does not indicate that the U.S. Supreme Court should have heard the case. The U.S. Supreme Court declared that the city’s apprehension of private property for private expansion qualified as public use even though the land was not going to be used by the public. The Court articulated that because economic development is a customary and long acknowledged governmental function, there was no honourable way of differentiating economic development from the other public purposes, and the apprehension of the land was for a public purpose, the land apprehension met the public use prerequisite of the Fifth Amendment.
There are a number of things that relate to this case that should clearly be obvious. These include the fact that private use is not necessarily public use; and that public purpose is not necessarily public use. Economic development projects are not the business of any government regardless if it is federal, state, or local. In addition, the seizing of private property, for any grounds, is theft, whether a representative of the state or the state itself obtains it. It also includes the seizing of private property, for any motive, is theft, whether it is taken for either public or private use. What may not also be so clear is that: The Bill of Rights was meant to apply to the federal government, not to the states. Additionally, there is nothing in the Constitution that grants the federal government the right to depose state laws. Finally, The Supreme Court had no jurisdiction to hear the case.
Looking at the Kelo case, the reasoning of the Supreme Court was clearly flawed, but the best decision was reached nevertheless. However, it would have been far better, since the Supreme Court chooses which cases it hears, for the Court to have simply refused to hear the case. In the past prior to the Fourteenth Amendment, when the Supreme Court followed the Constitution much more strongly than it does today, a Fifth Amendment taking clause case was brought before the Court. In Barron v. City of Baltimore, in which Chief Justice Marshall explained why the Bill of Rights did not apply to the states, the unanimous Court ruled, without even hearing the arguments from the City of Baltimore:
We are of opinion that the provision in the fifth amendment to the constitution, declaring that private property shall not be taken for public use without just compensation, is intended solely as a limitation on the exercise of power by the government of the United States, and is not applicable to the legislation of the states. Therefore, there is no repugnancy involving the numerous acts of the parliament of Maryland, provide in proof by the defendants at the trial of this case, in the court of that state, and the constitution of the United States. This court, consequently, has no authority of the cause; and it is dismissed. (Barron v. City of Baltimore).
The same way of thinking should have reigned in the Kelo case. As Congressman Ron Paul again explains:
The issue in the Kelo case is the legality of the eminent domain action under Connecticut law, not federal law. Congress is able to and must act to thwart the federal government from grabbing private property. However, the fight against local eminent domain actions must, take place at the local level. (Paul 250).
However, as also mentioned previously, the ruling for the City of New London and against the Kelo petitioners cannot be said to be the correct decision or the proper decision because it is a decision that never should have been made. It was, therefore, destined to be a bad decision no matter how it was decided. It is a bad decision either way because the Supreme Court did not uphold the constitutional principle of federalism. Yes, the Court affirmed the judgment of the Connecticut Supreme Court, but this can hardly be considered a victory for federalism since federalism was the last thing on the justices’ minds when they rendered their decision.
It is a bad decision because it further strengthens the myth of the Fourteenth Amendment. The Fourteenth Amendment gave us Roe v. Wade. The Fourteenth Amendment gave us Brown v. Board of Education (1954). 4The Fourteenth Amendment is used to grant automatic citizenship to children of illegal immigrants. It is the Fourteenth Amendment that has, more than anything else does, been used to increase the power and scope of the federal leviathan. It is a bad decision either way because it diverts attention away from the real issue: the legitimacy of eminent domain itself. As Jacob Hornberger (6), explains: Lost in all this public use controversy is a fundamental question: Why should government have the power of eminent domain anyway? If it requires a piece of property, why should the government officials not be expected to bargain for its acquisition, just as everyone else does? If someone declines to trade, then the government can merely go and buy its property elsewhere.
I have maintained throughout that although the Supreme Court’s reasoning in the Kelo case was clearly flawed, the best decision was reached nevertheless because it was the closest thing to the Court refusing to hear the case. The outcome was the same: the decision of the Connecticut Supreme Court stands. The Kelo decision cannot be defended on constitutional grounds. Supporters of the decision wanted the Court to overturn the Connecticut decision as it overturned the decision of the New York Supreme Court in the celebrated case of Lochner v. New York (1905). There the Court invalidated a bad from the standpoint of freedom of contract. New York labor law which authorized that “no employee shall be mandated or allowed to labour in a biscuit, bread, or cake bakery or confectionery institution more than sixty hours in any one week, or more than ten hours in any one day.”
However, as history has shown, this set a terrible precedent, and led to even more government intervention and central planning, culminating in the New Deal. Intervention by the federal government in the affairs of the states under the guise of protecting rights is intervention nonetheless, and should be opposed because, in the end, it destroys the very principle that limits the power of the central state.
Obviously, one potential approach is for the Congress to announce that the exploit of eminent domain for economic development is impermissible. This approach would leave it up to courts to settle on which exercises of eminent domain are forbidden. Regrettably, courts have confirmed that they are not very excellent at policing the applications to which eminent domain is placed. An enhanced technique is that politically accountable actors, not courts, exercise such decisions. Another predicament is that this approach raises questions about federalism. While it is suitable to correct eminent domain abuses, state courts have frequently eradicated such misuses as an issue of state law. Devoid of proof of a national predicament of overuse of eminent domain, it is almost certainly not a good thought for the Congress to take action. Another difficulty of the Congress barring the use of eminent domain for private economic development is that it aids only property owners whose cases fall near the margins of the ban. Those who encounter takings considered evidently as permissible, as well as those whose property is taken for novel highways, airport developments, public conference centres, and public arenas, get no assistance. In addition, it will be more complex for normal landowners to locate a lawyer to bring an act testing a dubious taking. Many condemnation lawyers operate on a reliant fee basis, and are paid a proportion of any extra just compensation they acquire from the state further than the state’s preliminary offer. A no-public use action, if it thrives, denotes that there will be no money with which to give the lawyer. Therefore, the inducement for lawyers to bring and assertively put on trial such actions is reduced.
Otherwise, the resolution whether or not to employ eminent domain could be thrusted down to the local rank with the requisite that the conclusion be made by designated rather than unelected officials (Hornberger 23). Another advancement would be to put the weight on the condemning authority to institute the validity of the taking, as well as whether it represents a public use, before title changing hands. Many authorities at present have quick take decrees that assume the legality of the taking, and necessitate condemnee (landowner) to file a private deed seeking to charge the taking. This process puts the load of proof on the condemnee, as well as the weight of establishing that the taking is not a public use. That could be altered as a means of reinforcement of landowner rights. In addition, it may be promising to augment the amount of reparation paid to condemnees above the present prerequisite of fair market value.
It is significant that any governmental action offer relief to all property owners who encounter eminent domain, not just a select few. A plan that offers more money to individuals whose property is taken by eminent domain accomplishes that objective and will reduce the definite use of eminent domain. In addition, eminent domain processes were developed in the nineteenth century and have been customized only vaguely over time. Under the representative approach (Berger 34), a law-making body makes a choice to condemn property devoid of providing any justification, with a court then holding a hearing to observe whether the condemnation meets the court’s comprehension of the significance of public use. Characteristically no comprehensive projected mission is describing for public comment and hearings. Estranged individuals commonly cannot look for legal review regarding the wisdom of the projected taking. Retooling present eminent domain measures to necessitate open, public, participatory inquiries into the requirement for the application of eminent domain would offer improved protection for property owners than daunting an intangible meaning of forbidden groups of eminent domain imposed by courts. Modernizing the procedure in this manner would permit the genuine objections to the scheme to be tackled, and would generate a means for classifying a method to proceed that would entail less or no exploit of eminent domain, and would permit property owners a forum in which to voice their objections to being uprooted.
Berger, R. Government by Judiciary: The Transformation of the Fourteenth Amendment. Second ed. Indianapolis, Ind.: Liberty Fund, 1997
Berger, R. The Fourteenth Amendment and the Bill of Rights. Norman and London: University of Oklahoma Press, 1989.
Cottrol, R. J., Raymond T. D., and Leland B. W. Brown v. Board of Education: Caste, Culture, and the Constitution. Lawrence: University of Kansas Press, 2003
Hornberger, Jacob G.. “Freedom and the Fourteenth Amendment.” Freedom Daily 16 (November), 2005