Whose private property is public?
Today the Supreme Court will hear oral arguments in what figures to be a very important case, 04-108, Kelo v. New London:
Facts of the Case
Would you take this woman’s property?
The property owners argued the city violated the Fifth Amendment’s takings clause, which guaranteed the government will not take private property for public use without just compensation. Specifically the property owners argued taking private property to sell to private developers was not public use. The Connecticut Supreme Court ruled for
At issue is the extent to which eminent domain (in the
… to clear private property for private urban development:
Question Presented
Does a city violate the Fifth Amendment’s takings clause if the city takes private property and sells it for private development, with the hopes the development will help the city’s bad economy?
The takings clause is one of the many private-citizen rights captured in the Fifth Amendment:
No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.
Even though the plain language speaks only in terms of ‘just compensation,’ jurisprudence has further checked government’s power by interpreting ‘due process’ to require the state, before it can take a property, to find a ‘compelling public interest.’
Just as public property can be exploited for private gain, private property may be taken for public good … but it’s one thing to take a farm to build a highway, but is it another to take a home for the more nebulous good of urban revitalization?
Big-stakes takings cases always attract a slew of amicus briefs:
- Plaintiffs’ briefs (seeking to limit eminent domain) and supporting views may be found here, here, here, here, and here.
- Defendant’s briefs (seeking to expand eminent domain) may be found here and here, together with a complete set of all briefs.
Since affordable housing depends on public-private partnership, eminent domain questions figure prominently in its jurisprudence, including issues of land-development restrictions, down-zoning, regulatory takings, and government contractual obligations.
The rhetoric of these cases is often high-blown:
Susette Kelo dreamed of owning a home that looked out over the water. She purchased and lovingly restored her little pink house where the Thames River meets the Long Island Sound in 1997, and has enjoyed the great view from its windows ever since. The Dery family, down the street from Susette, has lived in
Tragically, the City of
The decisions, however, are complex, since government’s actions influence (often increase) the value of urban land (and hence, of urban property).
Much though I favor constructive zoning, it’s a bit rich to grab someone’s home and then flip it to a friendly developer.
I’ll have lots more to say on this subject, but for now we must wait to hear from the Supremes:
