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javasaurusA lot of people are very upset about the recent ruling by the US Supreme Court in the case of Kelo vs. New London.
In this case, the city decided to develop an area into a new downtown riverside district to heighten the economy of the area. They purchased most of the properties from willing property holders, and proceeded to condemn the remaining properties that would be part of the plan, citing eminent domain. The homeowners cried foul since the properties being confiscated would not be used by the government, nor would they all be public properties (some would), but the site of private businesses. The Connecticut court system found that the city had the right to take the property for just compensation, and the Supreme Court of the U.S. has upheld that ruling.
The newspapers have (needless to say) had a field day with this. I haven’t seen yet in the news that one of the homeowners has lived in her house since her birth in 1918, and that her husband has lived there with her since their marriage 60 years ago. Another homeowner loves her home’s waterfront view. The news is all about the doom and gloom to you and me. The country will come screaming to a halt because of this. We’re all going to die because of this! The news is about evoking fear rather than pity or empathy. I really hate the news sometimes.
What the news is also avoiding telling us is that this is actually not a landmark case. The Supreme Court records for the ruling show that there are multiple precedents going back for decades that support their decision. “Public use” as maintained by the Supreme Court based on a hundred years of precedence is not what most people think it is, i.e., for use by members of the public. Rather, it is interpreted as shown in the following excerpt from the court’s decision. The dissenters argue that the original use of the expression should be reinstated, i.e., that “public use” means for ownership by the government and/or for use by the public.
The reasons behind letting the decision of the Connecticut court stand are well documented in the court ruling, part of which I include below. I would recommend reading the whole document if you get the chance. It includes the agreeing and dissenting opinions as separate articles at the end.
As for my opinion, I would like to think that we live in a world, or at least a country, where the good of the individual and the good of the community could be well balanced, and that the government could act as a keeper of the balance. Sigh.
As for the first proposition, the City would no doubt be forbidden from taking petitioners’ land for the purpose of conferring a private benefit on a particular private party. See Midkiff, 467 U. S., at 245 (“A purely private taking could not withstand the scrutiny of the public use require-ment; it would serve no legitimate purpose of government and would thus be void”); Missouri Pacific R. Co. v. Ne-braska, 164 U. S. 403 (1896).5 Nor would the City be al-lowed to take property under the mere pretext of a public purpose, when its actual purpose was to bestow a private benefit. The takings before us, however, would be exe-cuted pursuant to a “carefully considered” development plan. 268 Conn., at 54, 843 A. 2d, at 536. The trial judgeand all the members of the Supreme Court of Connecticut agreed that there was no evidence of an illegitimate pur-pose in this case.6 Therefore, as was true of the statute challenged in Midkiff, 467 U. S., at 245, the City’s develop-ment plan was not adopted “to benefit a particular class of identifiable individuals.”
On the other hand, this is not a case in which the City isplanning to open the condemned land—at least not in its entirety—to use by the general public. Nor will the pri-vate lessees of the land in any sense be required to operate like common carriers, making their services available to all comers. But although such a projected use would be sufficient to satisfy the public use requirement, this “Court long ago rejected any literal requirement thatcondemned property be put into use for the general pub-lic.” Id., at 244. Indeed, while many state courts in themid-19th century endorsed “use by the public” as theproper definition of public use, that narrow view steadily eroded over time. Not only was the “use by the public” test difficult to administer (e.g., what proportion of the public need have access to the property? at what price?),7 but it proved to be impractical given the diverse and al-ways evolving needs of society.8 Accordingly, when this Court began applying the Fifth Amendment to the States at the close of the 19th century, it embraced the broader and more natural interpretation of public use as “public purpose.” See, e.g., Fallbrook Irrigation Dist. v. Bradley, 164 U. S. 112, 158–164 (1896). Thus, in a case upholding a mining company’s use of an aerial bucket line to trans-port ore over property it did not own, Justice Holmes’opinion for the Court stressed “the inadequacy of use bythe general public as a universal test.” Strickley v. High-land Boy Gold Mining Co., 200 U. S. 527, 531 (1906).9 We have repeatedly and consistently rejected that narrow test ever since.10 The disposition of this case therefore turns on the ques-tion whether the City’s development plan serves a “public purpose.” Without exception, our cases have defined thatconcept broadly, reflecting our longstanding policy ofdeference to legislative judgments in this field.
In Berman v. Parker, 348 U. S. 26 (1954), this Court upheld a redevelopment plan targeting a blighted area of Washington, D. C., in which most of the housing for thearea’s 5,000 inhabitants was beyond repair. Under the plan, the area would be condemned and part of it utilized for the construction of streets, schools, and other public facilities. The remainder of the land would be leased or sold to private parties for the purpose of redevelopment, including the construction of low-cost housing.
The owner of a department store located in the area challenged the condemnation, pointing out that his store was not itself blighted and arguing that the creation of a “better balanced, more attractive community” was not a valid public use. Id., at 31. Writing for a unanimous Court, Justice Douglas refused to evaluate this claim in isolation, deferring instead to the legislative and agency judgment that the area “must be planned as a whole” for the plan to be successful. Id., at 34. The Court explainedthat “community redevelopment programs need not, by force of the Constitution, be on a piecemeal basis—lot by lot, building by building.” Id., at 35. The public use un-derlying the taking was unequivocally affirmed:
“We do not sit to determine whether a particular
housing project is or is not desirable. The concept of
the public welfare is broad and inclusive. . . . The val-
ues it represents are spiritual as well as physical, aes-
thetic as well as monetary. It is within the power of
the legislature to determine that the community
should be beautiful as well as healthy, spacious as well as clean, well-balanced as well as carefully pa-trolled. In the present case, the Congress and its au-thorized agencies have made determinations that take into account a wide variety of values. It is not for us to reappraise them. If those who govern the District of Columbia decide that the Nation’s Capital should be beautiful as well as sanitary, there is nothing in the Fifth Amendment that stands in the way.” Id., at 33.
In this case, the city decided to develop an area into a new downtown riverside district to heighten the economy of the area. They purchased most of the properties from willing property holders, and proceeded to condemn the remaining properties that would be part of the plan, citing eminent domain. The homeowners cried foul since the properties being confiscated would not be used by the government, nor would they all be public properties (some would), but the site of private businesses. The Connecticut court system found that the city had the right to take the property for just compensation, and the Supreme Court of the U.S. has upheld that ruling.
The newspapers have (needless to say) had a field day with this. I haven’t seen yet in the news that one of the homeowners has lived in her house since her birth in 1918, and that her husband has lived there with her since their marriage 60 years ago. Another homeowner loves her home’s waterfront view. The news is all about the doom and gloom to you and me. The country will come screaming to a halt because of this. We’re all going to die because of this! The news is about evoking fear rather than pity or empathy. I really hate the news sometimes.
What the news is also avoiding telling us is that this is actually not a landmark case. The Supreme Court records for the ruling show that there are multiple precedents going back for decades that support their decision. “Public use” as maintained by the Supreme Court based on a hundred years of precedence is not what most people think it is, i.e., for use by members of the public. Rather, it is interpreted as shown in the following excerpt from the court’s decision. The dissenters argue that the original use of the expression should be reinstated, i.e., that “public use” means for ownership by the government and/or for use by the public.
The reasons behind letting the decision of the Connecticut court stand are well documented in the court ruling, part of which I include below. I would recommend reading the whole document if you get the chance. It includes the agreeing and dissenting opinions as separate articles at the end.
As for my opinion, I would like to think that we live in a world, or at least a country, where the good of the individual and the good of the community could be well balanced, and that the government could act as a keeper of the balance. Sigh.
As for the first proposition, the City would no doubt be forbidden from taking petitioners’ land for the purpose of conferring a private benefit on a particular private party. See Midkiff, 467 U. S., at 245 (“A purely private taking could not withstand the scrutiny of the public use require-ment; it would serve no legitimate purpose of government and would thus be void”); Missouri Pacific R. Co. v. Ne-braska, 164 U. S. 403 (1896).5 Nor would the City be al-lowed to take property under the mere pretext of a public purpose, when its actual purpose was to bestow a private benefit. The takings before us, however, would be exe-cuted pursuant to a “carefully considered” development plan. 268 Conn., at 54, 843 A. 2d, at 536. The trial judgeand all the members of the Supreme Court of Connecticut agreed that there was no evidence of an illegitimate pur-pose in this case.6 Therefore, as was true of the statute challenged in Midkiff, 467 U. S., at 245, the City’s develop-ment plan was not adopted “to benefit a particular class of identifiable individuals.”
On the other hand, this is not a case in which the City isplanning to open the condemned land—at least not in its entirety—to use by the general public. Nor will the pri-vate lessees of the land in any sense be required to operate like common carriers, making their services available to all comers. But although such a projected use would be sufficient to satisfy the public use requirement, this “Court long ago rejected any literal requirement thatcondemned property be put into use for the general pub-lic.” Id., at 244. Indeed, while many state courts in themid-19th century endorsed “use by the public” as theproper definition of public use, that narrow view steadily eroded over time. Not only was the “use by the public” test difficult to administer (e.g., what proportion of the public need have access to the property? at what price?),7 but it proved to be impractical given the diverse and al-ways evolving needs of society.8 Accordingly, when this Court began applying the Fifth Amendment to the States at the close of the 19th century, it embraced the broader and more natural interpretation of public use as “public purpose.” See, e.g., Fallbrook Irrigation Dist. v. Bradley, 164 U. S. 112, 158–164 (1896). Thus, in a case upholding a mining company’s use of an aerial bucket line to trans-port ore over property it did not own, Justice Holmes’opinion for the Court stressed “the inadequacy of use bythe general public as a universal test.” Strickley v. High-land Boy Gold Mining Co., 200 U. S. 527, 531 (1906).9 We have repeatedly and consistently rejected that narrow test ever since.10 The disposition of this case therefore turns on the ques-tion whether the City’s development plan serves a “public purpose.” Without exception, our cases have defined thatconcept broadly, reflecting our longstanding policy ofdeference to legislative judgments in this field.
In Berman v. Parker, 348 U. S. 26 (1954), this Court upheld a redevelopment plan targeting a blighted area of Washington, D. C., in which most of the housing for thearea’s 5,000 inhabitants was beyond repair. Under the plan, the area would be condemned and part of it utilized for the construction of streets, schools, and other public facilities. The remainder of the land would be leased or sold to private parties for the purpose of redevelopment, including the construction of low-cost housing.
The owner of a department store located in the area challenged the condemnation, pointing out that his store was not itself blighted and arguing that the creation of a “better balanced, more attractive community” was not a valid public use. Id., at 31. Writing for a unanimous Court, Justice Douglas refused to evaluate this claim in isolation, deferring instead to the legislative and agency judgment that the area “must be planned as a whole” for the plan to be successful. Id., at 34. The Court explainedthat “community redevelopment programs need not, by force of the Constitution, be on a piecemeal basis—lot by lot, building by building.” Id., at 35. The public use un-derlying the taking was unequivocally affirmed:
“We do not sit to determine whether a particular
housing project is or is not desirable. The concept of
the public welfare is broad and inclusive. . . . The val-
ues it represents are spiritual as well as physical, aes-
thetic as well as monetary. It is within the power of
the legislature to determine that the community
should be beautiful as well as healthy, spacious as well as clean, well-balanced as well as carefully pa-trolled. In the present case, the Congress and its au-thorized agencies have made determinations that take into account a wide variety of values. It is not for us to reappraise them. If those who govern the District of Columbia decide that the Nation’s Capital should be beautiful as well as sanitary, there is nothing in the Fifth Amendment that stands in the way.” Id., at 33.
