I didn’t think this day would come, but today I find myself agreeing with Justices Thomas, Scalia, and Rehnquist (and O’Connor) and think that the more liberal-minded justices (Stevens, Ginsburg, Souter and Breyer, and sort of Kennedy) issued a really asinine decision this morning.
The Court ruled in Kelo v. New London, 5-4, that governmental entities can take private homes for private economic development. The “takings clause” of the Fifth Amendment states: “nor shall private property be taken for public use, without just compensation.” A governmental entity has always been allowed to take someone’s private property and provide compensation for doing so, but only if it’s for a “public use” – a highway, a railroad, etc. (There are more examples, but I can’t think of any – I’m far from an expert on the takings clause.) This morning, in an opinion by Justice Stevens (who’s usually one of my favorites), the Court broadly interpreted “public use” and stated that private economic development can be considered a public use if a government entity thinks it is.
What’s weird is that this decision can be interpreted, in one way, as pro-corporation. Meanwhile, Thomas, dissenting, writes, “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.'”
FYI, Kennedy agreed with the majority, but only based on the specific circumstances of this case. It’s possible that if the facts were a bit different, the decision might have gone the other way.
I don’t know what on earth the majority was thinking with this one.
Keep in mind that Stevens did not establish this as an inalienable right of government; if people thought the power was not being used in furtherance of a legitimate public interest, a state/city can simply proscribe the practice through legislation (which, coincidentally, is the type of flexibility that anti-“activist judge” types want). States which disagree with this ruling can simply pass a law saying “not in my backyard” (pun intended) to condemnation-cum-economic development.
Also, keep in mind that Times Square/42nd Street was redeveloped in much the same way and using similar mechanisms as New London intends.
On further thought, I’m not sure what I think of the outcome of this case. As to your point 1, I don’t know. If “the people” support the development and the taking of property, but the property owners themselves do not, then the property owners are screwed. Property rights are supposed to protect an individual’s property, and it seems odd to leave a definition of “public use” up to the people. What if the majority of people think a Wal-Mart would be good for the city or town, and the people who live there disagree because it’s their own property that would be razed? Property rights are pretty special, and I guess this is one area in which I think the term should probably be interpreted strictly.
As to point 2, was Times Square developed in the same way? I don’t know (you’re the urban planning person, not me :) ). There must have been some difference, or else it would have been possibly unconstitutional before today, right?
As to point 1 – previous takings cases have discussed public use or public benefit and consider some “takings”, like zoning, to be legitimate (based on a strict scrutiny test, I suppose). So jurisprudence that weighs the public benefit against a property owner’s rights is not new — of course, that doesn’t mean that your view is wrong.
As to point 2 – as I understand it, the state (through the Empire State Development Corporation) condemned the corridor, now owns the land, and ground leases it to private developers. I don’t think the constitutionality of the practice had been answered until today.
Times Square is not a valid example as the justification for the NY Times taking was that the area was blighted. Whether this was true or not is beside the point. That was the justification used by the government agency and deference was given to this decision by the courts, as is typically done unless the decision by the agency was arbitrary/capricious.
As such, the constitutionality of the NY Times /Times Square stuff was already known before today. Today’s decision makes it clear that blight was not an issue for the properties in question in New London.
This is one stupid opinion. What is going to stop a town from condemning the homes of poor people, which generate less tax dollars, in order to put up a bunch of McMansions. Doing so generates a great amount of new tax dollars, thereby creating a public benefit for the city as a whole.
Now, I’m not a legal scholar by any stretch of the imagination. I won’t pretend to be. This ruling had me scratching my head. But what really scared me the most is when I found myself agreeing with my most conservative coworkers, the squirrel huntin’, “queer” hatin’,
mini-van drivin’, W lovin’, red state livin’, lawyer hatin’ type. ick!
I felt the same way. Agreeing with Thomas and Scalia made me want to run home and take a long, hot shower in Lysol.