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Kelo revisited

I've been looking at a lot of Supreme Court cases lately because of the O'Connor retirement, so I had a chance to take a closer look at the Kelo v. New London decision. After doing so, I'm actually having a hard time figuring out what all the fuss is about.

Background can be found here; the decision itself is here. Basically, the issue was whether it was constitutionally kosher for a local government to seize private property from one party and transfer it to another for the sake of economic revitalization. The Court decided 5-4 that this use of eminent domain was not a violation of the property owners' constitutional rights.

The property owners, and the dissenting justices, argued that this use of eminent domain was prohibited by the Fifth Amendment, the relevant portion of which reads:

nor shall private property be taken for public use, without just compensation.

Their argument was that this clause places two restrictions on eminent domain: 1. that the taking of property must be for public use and 2. that the owners of the property must be justly compensated. O'Connor and Thomas, in their written dissents, argued that taking property from party A and giving it to party B simply because the use to which it would be put by B would provide more revenue for the state was not a legitimate instance of 'public use', and that therefore the city of New London's invocation of eminent domain did not meet condition #1 - the property was not being taken for 'public use'.

Stevens, writing for the majority, disagreed:

...this is not a case in which the City is planning to open the condemned land--at least not in its entirety--to use by the general public. Nor will the private 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 that condemned property be put into use for the general public." ... 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." ... Thus, in a case upholding a mining company's use of an aerial bucket line to transport ore over property it did not own, Justice Holmes' opinion for the Court stressed "the inadequacy of use by the general public as a universal test." ... We have repeatedly and consistently rejected that narrow test ever since.

The disposition of this case therefore turns on the question whether the City's development plan serves a "public purpose." Without exception, our cases have defined that concept broadly, reflecting our longstanding policy of deference to legislative judgments in this field.

...Because that plan unquestionably serves a public purpose, the takings challenged here satisfy the public use requirement of the Fifth Amendment.

...petitioners urge us to adopt a new bright-line rule that economic development does not qualify as a public use. Putting aside the unpersuasive suggestion that the City's plan will provide only purely economic benefits, neither precedent nor logic supports petitioners' proposal. Promoting economic development is a traditional and long accepted function of government. There is, moreover, no principled way of distinguishing economic development from the other public purposes that we have recognized ... Clearly, there is no basis for exempting economic development from our traditionally broad understanding of public purpose.

Of course, such reasoning is unacceptable to the 'original intent' crowd. Thus Thomas, dissenting, argues (emphasis added):

Long ago, William Blackstone wrote that "the law of the land ... postpone[s] even public necessity to the sacred and inviolable rights of private property." ... The Framers embodied that principle in the Constitution, allowing the government to take property not for "public necessity," but instead for "public use." ... Defying this understanding, the Court replaces the Public Use Clause with a " '[P]ublic [P]urpose' " Clause ...

...Today's decision is simply the latest in a string of our cases construing the Public Use Clause to be a virtual nullity, without the slightest nod to its original meaning. In my view, the Public Use Clause, originally understood, is a meaningful limit on the government's eminent domain power. Our cases have strayed from the Clause's original meaning, and I would reconsider them.

...the Public Use Clause is most naturally read to authorize takings for public use only if the government or the public actually uses the taken property.

...Our current Public Use Clause jurisprudence, as the Court notes, has rejected this natural reading of the Clause. The Court adopted its modern reading blindly, with little discussion of the Clause's history and original meaning...

Thomas probably thinks he is saying something profound when he claims that the "public use" condition is only satisfied if the public "actually uses" the property, but of course this is simply tautological. Why New London's development plan doesn't count as "actual use" is never satisfactorily explained. Of course, if we assume that (a) Thomas's theoretically shabby originalist philosophy is correct and (b) Thomas can read the minds of the framers, then Thomas might have a point. But if that were the case we wouldn't need a Supreme Court at all; we could just ask Clarence.

So even restricting ourselves to the arguments already advanced, the case against Kelo is basically nonexistent. But here's the thing - even if the conservatives are right, and economic development doesn't count as 'public use', it is still not the case that New London acted in violation of the Fifth Amendment!

O'Connor writes:

we have read the Fifth Amendment's language to impose two distinct conditions on the exercise of eminent domain: "the taking must be for a 'public use' and 'just compensation' must be paid to the owner."

But look at the relevant clause once again:

nor shall private property be taken for public use, without just compensation.

I defy you to find "two distinct conditions" that this clause "imposes" upon the taking of private property by the state. (One might argue that the exercise of eminent domain necessarily or analytically involves 'public use', but in that case the clause cannot be said to "impose" this condition on eminent domain.) The only rational interpretation of this clause is that it imposes one condition upon the taking of private property for public use - not that it imposes two conditions on all takings of private property by the state. The equivalent proposition would be "when the state takes private property for public use, it must provide just compensation." The clause is by no means equivalent to the proposition "the state may only take property if it is for public use, and when it does, it must provide just compensation."

Conservatives can't really believe that the state is only permitted to take property if it is put to the public use. If that were the case, then it would be unconstitutional to seize the property of convicted drug dealers, for instance. To read the Fifth Amendment as placing a blanket restriction upon all takings, requiring that the property must always be put to the 'public use' interpreted in the narrow sense that Thomas prefers, simply defies reason. That's just not what the Fifth Amendment says.

Much of the reaction to Kelo from the blogosphere seems to forget that the issue was not whether allowing the state to transfer property between private parties for the sake of increased revenue is a wise policy - there's nothing stopping any state legislature from prohibiting all such actions. The question was whether the type of takings in the case violated the property owners' Fifth Amendment rights - whether such transfers of property are prohibited by the Constitution. Clearly they are not.

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