” Nine years after the Supreme Court’s Kelo decision gutted the right of American property owners to resist eminent-domain seizures, the neighborhood at the center of the case remains a wasteland.”
Meet American hero Suzette Kelo , a woman who , though she ultimately lost her case and her home , fought the good fight for all Americans and our property rights . This is her story .
The Supreme Court ruling 5-4 in favor of the New London Development Corp was intended to provide land , waterfront mind you , for Pfizer pharmaceuticals to build new offices with the hopes of bringing many new jobs to the City of New London . It didn’t work out that way as Pfizer backed out and a few years later actually left New London altogether .
” Fort Trumbull in New London, Conn., was bulldozed to fulfill the vision of politicians and developers eager to create a New Urbanist mixed-use “hub” for upscale living in the depressed town near the mouth of Long Island Sound.”
” But after nearly a decade, the land is nothing but vacant urban prairie. After homeowners were forced off their property for the sake of “economic development,” the city’s original development deal fell apart, and the urban-renewal corporation that ordered the destruction has not found a developer to use the land.”
The turning of the corner in the battle for individual property rights , this ruling allowed the State to force private landholders to sell for the benefit of other , better connected , private citizens . A truly disgraceful ruling that the Supreme Court should be ashamed of .
” Traditionally, these transfers of property, or eminent domain, had only allowed governments to acquire private lands in order to build a public structure like a school or highway. The Constitution permits seizures for such instances of “public use,” but the Supreme Court decision expanded that power to allow governments to acquire people’s land with “just compensation” for a “public purpose,” which in Kelo meant the government’s belief that a different owner might bring in more tax revenue.”
The opinion of the Court was decided thusly :
Majority and concurring
” On June 23, 2005, the Supreme Court, in a 5–4 decision, ruled in favor of the City of New London. Justice Stevens wrote the majority opinion, joined by Justices Anthony Kennedy, David Souter, Ruth Bader Ginsburg and Stephen Breyer. Justice Kennedy wrote a concurring opinion setting out a more detailed standard for judicial review of economic development takings than that found in Stevens’s majority opinion. In so doing, Justice Kennedy contributed to the Court’s trend of turning minimum scrutiny—the idea that government policy need only bear a rational relation to a legitimate government purpose—into a fact-based test.
In Hawaii Housing Authority v. Midkiff, 467 US 229 (1984), the Court had said that the government purpose under minimum scrutiny need only be “conceivable which, practically speaking, is no standard at all because, as demonstrated by countless science fiction writers, anything is conceivable.” In two 1996 cases the Court clarified that concept. InRomer v. Evans, 517 US 620, the Court said that the government purpose must be “independent and legitimate.” And in United States v. Virginia, 518 U.S. 515, the Court said the government purpose “must be genuine, not hypothesized or invented post hoc in response to litigation.” Thus, the Court made it clear that, in the scrutiny regime established in West Coast Hotel v. Parrish, 300 US 379 (1937), government purpose is a question of fact for the trier of fact.
Kennedy fleshed out this doctrine in his Kelo concurring opinion; he sets out a program of civil discovery in the context of a challenge to an assertion of government purpose. However, he does not explicitly limit these criteria to eminent domain, nor to minimum scrutiny, suggesting that they may be generalized to all health and welfare regulation in the scrutiny regime. Because Kennedy signed on to the Court’s majority opinion, his concurrence is not binding on lower courts. He wrote:
A court confronted with a plausible accusation of impermissible favoritism to private parties should [conduct]… a careful and extensive inquiry into ‘whether, in fact, the development plan [chronology]
[1.] is of primary benefit to… the developer… and private businesses which may eventually locate in the plan area…
[2.] and in that regard, only of incidental benefit to the city…’”
Kennedy is also interested in facts of the chronology which show, with respect to government,
[3.] awareness of… depressed economic condition and evidence corroborating the validity of this concern…
[4.] the substantial commitment of public funds… before most of the private beneficiaries were know…
[5.] evidence that [government] reviewed a variety of development plan…
[6.] [government] chose a private developer from a group of applicants rather than picking out a particular transferee beforehand and…
[7.] other private beneficiaries of the project [were]… unknown [to government] because the… space proposed to be built [had] not yet been rented…
Kelo v. City of New London did not establish entirely new law concerning eminent domain. Although the decision was controversial, it was not the first time “public use” had been interpreted by the Supreme Court as “public purpose”. In the majority opinion, Justice Stevens wrote the “Court long ago rejected any literal requirement that condemned property be put into use for the general public” (545 U.S. 469). Thus precedent played an important role in the 5-4 decision of the Supreme Court. The Fifth Amendment was interpreted the same way as in Midkiff (467 U.S. 229) and other earlier eminent domain cases. However in those earlier cases the court justified the use of eminent domain on the basis of elimination of social harms such as barriers to efficient exploitation of agricultural and mineral-bearing land, elimination of slums, or large-scale title misallocation. None of these factors were present in Kelo; it was a case in which the city merely wanted to increase its tax revenues, and attract a wealthier population in place of the lower middle class home owners in the redevelopment project area.”
The dissenting Justices had this to say :
” The principal dissent was issued on 25 June 2005 by Justice O’Connor, joined by Chief Justice Rehnquist and Justices Scalia and Justice Clarence Thomas. The dissenting opinion suggested that the use of this taking power in a reverse Robin Hood fashion— take from the poor, give to the rich— would become the norm, not the exception:
“ Any property may now be taken for the benefit of another private party, but the fallout from this decision will not be random. The beneficiaries are likely to be those citizens with disproportionate influence and power in the political process, including large corporations and development firms. ”
O’Connor argued that the decision eliminates “any distinction between private and public use of property — and thereby effectively delete[s] the words ‘for public use’ from the Takings Clause of the Fifth Amendment.” 125 S.Ct. 2655, 2671.
Thomas also issued a separate originalist dissent, in which he argued that the precedents the court’s decision relied upon were flawed. He accuses the majority of replacing the Fifth Amendment’s “Public Use” clause with a very different “public purpose” test:
“ This deferential shift in phraseology enables the Court to hold, against all common sense, that a costly urban-renewal project whose stated purpose is a vague promise of new jobs and increased tax revenue, but which is also suspiciously agreeable to the Pfizer Corporation, is for a ‘public use.’ ”
Thomas additionally observed:
“ Something has gone seriously awry with this Court’s interpretation of the Constitution. Though citizens are safe from the government in their homes, the homes themselves are not.545 U.S. 469, 518 (2005) ”
Thomas also made use of the argument presented in the NAACP/AARP/SCLC/SJLS amicus brief on behalf of three low-income residents’ groups fighting redevelopment in New Jersey, noting:
“ Allowing the government to take property solely for public purposes is bad enough, but extending the concept of public purpose to encompass any economically beneficial goal guarantees that these losses will fall disproportionately on poor communities. Those communities are not only systematically less likely to put their lands to the highest and best social use, but are also the least politically powerful.”
This video from 2007 offers a discussion of the on-going affects of the Kelo decision from Duke university and a panel of property law experts …
For further reading on the travesty of justice that is the Kelo decision and the continuing abuse of eminent domain by the State and the courts check out the Institute for Justice , which represented Ms Kelo and Ms Dery , the Cato Institute , Civil Liberty , Cornell University Law , Harvard Law , & The Bill Of Rights Institute .
Here is the transcript of oral arguments presented by Scott G Bullock Esq. on behalf of the plaintiffs and here is a history of recent eminent domain abuse for commercial gain from the Law Review at UC Davis .
The Founders recognized private property rights as equally important to the liberty of citizens as freedom of speech and the right to bear arms , for without the legal assurance of the natural right to keep and benefit from the fruits of one’s own labors the citizenry become nothing more than serfs .
With that in mind we will close this post with some words of wisdom from the Founders that demonstrate just how far from their ideals this nation has fallen …
John Adams had this to say :
” The moment the idea is admitted into society that property is not as sacred as the law of God, and that there is not a force of law and public justice to protect it, anarchy and tyranny commence.”
James Madison on the legitimate role of government :
” Government is instituted to protect property of every sort. … This being the end of government, that alone is a just government, which impartially secures to every man, whatever is his own.”
We’ll let Thomas Jefferson have the last word on the subject of private property and takings :
“Nothing is ours, which another may deprive us of.”