How Far can the Power of Eminent Domain Reach

The words of the U.S. Constitution are clear:

“…nor shall private property be taken for public use without just compensation.” U.S. Constitution, Amendment V

Seattle Post-Intelligencer reports here on some of the 40 cases in which the Court has granted certiorari this term. One of them caught my eye, and it is not Booker or Fanfan. It involves "whether a Connecticut city can take away a person's home to clear the way for upscale development." In seriousness, it is not only for upscale development, but also whether the eminent domain power can be exercised to take someone's home or other property for "economic development" that will place the property in the hands of private developers, thereby creating jobs and resulting in more taxes being paid to the government's coffers. Is this exercise of the power of eminent domain for public use?

The Connecticut case involves Susette Kelo's pink house on the Thames River in New London and whether the city of New London can take her land away and sell it to real estate developers because they promise to pay more taxes and create jobs by converting the neighborhood into trendy condominiums.

"This case hits at the heart of the American dream ... a person's home," says Gregory Garre, a former law clerk to Chief Justice William Rehnquist and a former assistant to the solicitor general. "The idea that the government can kick you out of your home because they want expensive condos in your neighborhood really scares people."

But the issue is much bigger than the fate of one house on the Thames -- businesses, developers and homeowners throughout the United States have a stake in its outcome, says Garre, who doesn't represent any party in the case.

The Constitution allows governments to take private land for "public use," also known as the eminent domain authority.

Garre says many constitutional scholars consider the phrase "public use" to restrict government takings to uses that are directly owned or primarily used by the general public, such as roads, bridges or public buildings.

But the Connecticut Supreme Court said the term "public use" means that a taking need only have some anticipated public benefit, such as increased tax revenues and improving the area's economy. Kelo lost in the state courts and is asking the U.S. Supreme Court to hear her case.

"If the court agrees with the Connecticut Supreme Court on the definition of 'public use,' cities would have a much easier time justifying the taking of any property," Garre says.

You can find a PDF version of the Connecticut Supreme Court's opinion in Kelo here, and the opinion concurring in part and dissenting in part here.

As stated by the Property Rights Foundation of America, Inc. here,

The dispute, known as Susette Kelo v. City of New London, centers around a single principle—whether the government can condemn property to transfer it to another private party for the claimed “public purpose” of economic development. During recent years, government agencies far and wide have been condemning urban properties using the excuse that the properties are “blighted,” whether or not this is reasonably the case, but with the Fort Trumbull neighborhood, the city is exercising its eminent domain power solely on the basis of economic development. Therefore, the question that the homeowners are presenting to the U. S. Supreme Court is narrowly defined to that of whether, or to what degree, economic development is a constitutional reason for eminent domain. In August, Dana Berliner, Senior Counsel at the Institute for Justice, called the Connecticut ruling “eminent domain without limits.” She pointed out, “IJ and the homeowners’ argument was simple—the Constitution forbids condemnations for the purpose of private development.”

H. Christopher Bartolomucci, Partner, Hogan and Hartson, L.L. P., Washington, D.C., prepared PRFA’s amicus curiae brief, which points out that no U. S. Supreme Court rulings support the contention that eminent domain is justified to transfer private property to another private party solely for the purpose of economic development. By contrast, the PRFA brief points out, that the standard employed by the Connecticut Supreme Court “gives government carte blanche to take private property from one person and transfer it to another person limited only by the government’s willingness or ability to proclaim that is intent is to promote economic development.” With the sad thought in mind that residents stand to lose their cherished family homes for the sake of job creation and tax revenues, PRFA’s brief contrasted the Connecticut policy with the historic rejection of this purpose of eminent domain in the U.S. Supreme Court starting with Calder v. Bull in 1798, where it was stated that it is “against all reason and justice, for a people to entrust a Legislature with “the power to enact “a law that takes property from A. and gives it to B,” and therefore the legislature cannot be presumed to have such a power.

The Supreme Court in Kelo will likely reassess the viability of Hawaii Housing Authority v. Midkiff, 467 U.S. 229 (1984), an case decided by an 8-0 vote, with Justice Marshall not participating. The Hawaii Housing Authority opinion was written by Justice O'Connor.