The adventures of a middle aged law student

Tuesday, March 13, 2012

this land is my land

Kelo v City of New London (545 U.S. 469 2005) Does the U.S. Constitution's Takings Clause prohibit the taking/ condemnation of privately held land for economic development purposes? Specifically, the clause states "...nor shall private property be taken for public use, without just compensation." Keeping in mind that our federal constitution provides for enumerated powers rather than plenary, does this mean that the only way, under a due process evaluation, that property can be taken is for public USE? And does public PURPOSE mean the same thing? This case, and a couple before it, seem to indicate that a majority of the Court finds 'use' and 'purpose' equivalent, or more precisely, that the intent behind the words was 'purpose'. A lot ends up riding on that interpretation. In Berman v Parker ( 348 U.S. 26 1954), the Court found that the blighted condition of a neighborhood in DC justified the public benefit/purpose of razing the entire area and starting afresh. A business owner whose property was not blighted sued, and lost. The Court found that the Legislature has the power to enact legislation that provides for public benefit, and that they do not need to look at specific, individual impact, but at the impact of the action as a whole. In Hawaii Housing Authority v Midkiff (467 U.S. 229 1984), the Supreme Court held constitutional the taking of large amounts of land owned by a very few individuals and selling to the current occupants (some 70+% of Oahu was owned by a very few very wealthy individuals, whose stranglehold had significantly impacted the ability to buy a house), even though the taking was not for public ownership, but for private. So the Court finds that a public purpose is the determinant as to whether a taking is constitutional. There were two dissents captured in our case book, one written by Justice O'Connor, which concurred with the results in Berman and Midkiff, but felt that the use of eminent domain for economic development purposes went too far. She noted that the beneficiaries of such takings are likely to be "those citizens with disproportionate influence and power in the political process, including large corporations and development firms." Thomas' dissent went further and recommended unwinding the holdings in Berman and Midkiff, and returning to his understanding of the founders' intent in the use of the words 'public use.' He characterizes the Takings Clause as a prohibition, not a grant of power. He differentiates the historical 'mills acts' and use of eminent domain by common carriers because while privately owned, they were required to serve all comers. Whether a particular urban redevelopment project is a good idea is not really the issue here, as I see it. It is more a question of how far we are willing to encroach on traditionally held personal property rights for the perceived benefit to the greater society. And following on that, how do we protect small landholders from large corporate or other politically powerful individuals who, like King David, desire what is not theirs?

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