Attorney speak translation: Kiss your property rights goodbye


The Supreme Court, in a 5-4 decision has ruled in Kelo v. New London that the government can condemn your property, take it, and then transfer it to another private party. The dissenters were Justice O’Connor, who wrote the dissent, and the usual suspects, i.e. Chief Justice Rehnquist and Justices Scalia and Thomas. In the case at hand, the city of New London, CT, wants to tear down a neighborhood, and redevelop it for “economic development” purposes, using the power of eminent domain. You see, in 1998 Pfizer Pharmaceutical announced that it would build a huge research facility in the Fort Trumbull area. Evidently, the city fathers then began thinking, “Hey, if Pfizer comes in, we could rip out the surrounding residential areas, build a new park and marina, and sell the rest of it off after we rezoned it as commercial property. Pfizer could be the central hub of an exciting new business district. Man, imagine the tax money that would roll in! And sales taxes, as well as property taxes! Sounds like a plan!”Despite the fact that the plan was, as Justice Thomas puts it, “suspiciously agreeable to the Pfizer Corporation”, Justice Stevens, in a sophistry of reason, argues for the majority that it’s a taking for public use anyway:

Those who govern the City were not confronted with the need to remove blight in the Fort Trumbull area, but their determination that the area was sufficiently distressed to justify a program of economic rejuvenation is entitled to our deference. The City has carefully formulated an economic development plan that
it believes will provide appreciable benefits to the community, including—but by no means limited to—new jobs and increased tax revenue. As with other exercises in urban planning and development, the City is endeavoring to coordinate a variety of commercial, residential, and recreational uses of land, with the hope that they will form a whole greater than the sum of its parts. To effectuate this plan, the City has invoked a state statute that specifically authorizes the use of eminent domain to promote economic development. Given the comprehensive character of the plan, the thorough deliberation that preceded its adoption, and the limited scope of our review, it is appropriate for us, as it was in Berman, to resolve the challenges of the individual owners, not on a piecemeal basis, but rather in light of the entire plan. Because that plan unquestionably serves a public purpose, the takings challenged here satisfy the public use requirement of the Fifth Amendment

So, the city had a plan. They thought about it and everything. So they should receive deference.

It is further argued that without a bright-line rule nothing would stop a city from transferring citizen A’s property to citizen B for the sole reason that citizen B will put the property to a more productive use and thus pay more taxes. Such a one-to-one transfer of property, executed outside the confines of an integrated development plan, is not presented in this case. While such an unusual exercise of government power would certainly raise a suspicion that a private purpose was afoot, the hypothetical cases posited by petitioners can be confronted if and when they arise. They do not warrant the crafting of an artificial restriction on the concept of public use.

You see, they aren’t taking property from the homeowners to sell it to a particular developer, which would be wrong. No, they don’t yet know what private parties they are going to sell the land to, which is, like, totally different.

The disadvantages of a heightened form of review are especially pronounced in this type of case. Orderly implementation of a comprehensive redevelopment plan obviously requires that the legal rights of all interested parties be established before new construction can be commenced. A constitutional rule that required postponement of the judicial approval of every condemnation until the likelihood of success of the plan had been assured would unquestionably impose a significant impediment to the successful consummation of many such plans.

Besides, the the city claims that there’ll be new jobs and more property tax revenues, so there’s a valid “public use” element to economic redevelopment, even if all of the primary beneficiaries will be private entities. Because, after all, you don’t want to make the “public use” definition, too narrow. If you did, people couldn’t have the property confiscated by the state for hardly any reason. And then where’ll we be?!

So, if you have a home like one of the Kelo petitioners, where you were born, and where you have lived all your life, then you’d better hope the government doesn’t think Walmart or Pfizer could put it to better use. Because if the city wants it, it’s theirs.

Justice O’Connor wrote the dissent, and put it very succinctly:

Over two centuries ago, just after the Bill of Rights was ratified, Justice Chase wrote:

“An act of the Legislature (for I cannot call it a law) contrary to the great first principles of the social compact, cannot be considered a rightful exercise of legislative authority … . A few instances will suffice to explain what I mean… . [A] law that takes property from A. and gives it to B: It is against all reason and justice, for a people to entrust a Legislature with such powers; and, therefore, it cannot be presumed that they have done it.” Calder v. Bull, 3 Dall. 386, 388 (1798) (emphasis deleted).

Today the Court abandons this long-held, basic limitation on government power. Under the banner of economic development, all private property is now vulnerable to being taken and transferred to another private owner, so long as it might be upgraded—i.e., given to an owner who will use it in a way that the legislature deems more beneficial to the public—in the process. To reason, as the Court does, that the incidental public benefits resulting from the subsequent ordinary use of private property render economic development takings “for public use” is to wash out any distinction between private and public use of property—and thereby effectively to delete the words “for public use” from the Takings Clause of the Fifth Amendment. Accordingly I respectfully dissent.

You can’t put it more clearly than Justice O’Connor does. Without a bright-line rule against using the government’s power of eminent domain to effectuate a property transfer between private parties, then property rights are dead.

Well, that’s not completely true. Bit of an overreaction, really. because, as Justice O’Connor also points out, some people will retain their property rights.

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. As for the victims, the government now has license to transfer property from those with fewer resources to those with more. The Founders cannot have intended this perverse result. “[T]hat alone is a just government,” wrote James Madison, “which impartially secures to every man, whatever is his own.”

See, property rights aren’t dead if you’re rich and powerful enough to sway a local government into confiscating some else’s property for you.


2 Responses to “Attorney speak translation: Kiss your property rights goodbye”

  1. Coolhand Says:

    Your post is right on. This is a HUGE case, and no one seems to have noticed. It basically eviscerates the takings clause and leaves personal property rights subject to the whims of local officials. One can only hope the Court will limit this holding in the future; otherwise, it has some very scary potential for the rights of property holders.

  2. DeJon Redd Says:

    Thanks … I’m used to living in Al’s shadow.

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