The Destruction
of Private Property Rights:
Public Use v. Public
Purpose
The conflict between the private
interest in protecting property rights and the public interest in the general
welfare of society is not new or unique to America. In many societies, the
interest in the general welfare is so compelling that it has encroached on
property rights in the form of socialism or communism. However, because America’s
founding fathers believed that private property rights were fundamental to a capitalistic
society, they virulently defended them against anything—including personal
liberty—that could impinge. The framers of the Constitution, many of whom were
philosophically opposed to slavery because of their belief in personal liberty,
did not prohibit the institution of slavery in the Constitution because they
sought to protect the “property” of slaveholders.[1]
The founder’s reverence for private property is communicated in the strict
provisions of the Fifth Amendment, stipulating that “private property [shall
not] be taken for public use, without just compensation.” By expanding the
Fifth Amendment’s Takings Clause to constitutionally justify governmental
taking of private property for a public purpose in Kelo v.
City of New London, the Supreme Court ultimately eviscerates the public use requirement of the clause; because
of its inherent breach of an explicit amendment to the Constitution, the Court
should overturn its decision.
The case of Kelo v. City of New London arose when the city’s economic
development plan called for the procuring of private land—including that of
Susette Kelo and eight other petitioners—for use by new businesses that
potentially would revitalize the economy. The catalyst to this development plan
was the announcement by the pharmaceutical company Pfizer Inc. that it was
planning to build a global research facility in the city. The city, looking to
capitalize on economic growth, thought potential new businesses would benefit
the public more than the private structures that currently occupied the land.
In upholding the legitimacy and
constitutionality of the city’s taking of private property for the use of new
businesses, the Court relied on the test of public purpose—that is, any
governmental taking of private property has to be shown to serve a public
purpose. Whereas the public use requirement of the Fifth Amendment strictly
limits governmental takings of private property to situations in which the land
will be used by the general public, the public purpose requirement is not so
much of a limit; it is an unwarranted grant of power.[2] In
his dissenting opinion, Justice Thomas wrote that because government
eviscerated the public use requirement “citizens are safe from the government
in their homes, [but] the homes themselves are not [safe]” (577).[3]
Justice O’Connor elaborated on the consequences resulting from an increased
governmental takings power in her concurrence: “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” (574).
This danger caused Thomas to call for a limitation on governmental takings to
property that “it actually uses or gives the public a legal right to use”
(577). Under this strict standard of purely public usage, the government could
not take land from Susette Kelo to give to private businesses, regardless of the
potential for economic growth.
The belief that government should
not take land from a private entity to give to another private entity
originates in common law. Thomas’ dissent quotes Blackstone—one of the foremost
experts on English common law—on the fundamental belief in the sanctity of
private property. Because the law reflects this belief, it will not tolerate
governmental usurpations, even if they are a means to the end of ensuring the
general welfare of the community. Therefore, any governmental taking of
property must imitate the typical private transaction in that government should
only take land for its own use. The government is not a real estate broker—it
is not justified in “taking property from A and giving it to B” (577). Hence,
the framers of the Constitution instituted the public use requirement to
prevent governmental takings contrary to the common law tradition.
While the majority contested that
property can be taken for the general welfare of society, the wording of the
Fifth Amendment suggests otherwise. As Thomas pointed out, “the Constitution’s
text … suggests that the Takings Clause authorizes the taking of property only
if the public has a right to employ it, not if the public realizes any
conceivable benefit from the taking” (576). He claimed that while the framers
used the phrase “general welfare” in other sections of the Constitution, they
purposely limited governmental taking to property which will be directly used
by the public.[4]
If they wanted the eminent domain power to be greater, they would have employed
wording that would have broadened the power.
The majority asserts that the
Public Use Clause should not be interpreted so strictly; it should be construed
as a loose requirement that the taken land will serve a public purpose. According
to the majority, the “Court long ago rejected any literal requirement that
condemned property be put into use for the general public” (572). This claim is
a result of the Court’s reliance on precedent—Berman v. Parker and Hawaii Housing Authority v. Midkiff. While
O’Connor argues that these cases were decided correctly, but do not apply to
the current case, Thomas contends that these cases should be overturned because
they contradict the Constitution. His contention is based on the belief that “Berman and Midkiff erred by equating the eminent domain power with the police
power of States” (577). In other words, the Takings Clause, with its public use
and just compensation requirements, should not be confused or combined with the
state’s police power, which allows a state to take land without compensation if
the land is harmful to the health, morals, safety, and general welfare of the
community. Because he believed those cases were decided wrongly, he claimed
that the current ruling should not be based on them even if their precedent did
apply to this case; basing decisions on unconstitutional precedent is not a
valid exercise of jurisprudence.[5]
Two rulings contrary to the Constitution, even if in agreement with one
another, do not make either constitutional. In Thomas’ dissent, he argues,
“When faced with a clash of constitutional principle and a line of unreasoned
cases wholly divorced from the text, history, and structure of our founding
document, we should not hesitate to resolve the tension in favor of the Constitution’s
original meaning” (578). O’Connor
disagreed with Thomas’ view that Berman
and Midkiff were decided wrongly. However,
she did not believe those cases had any bearing on the current case because
their circumstances were different.
Berman v. Parker and Hawaii Housing
Authority v. Midkiff expanded the government’s takings power. In both
cases, the “extraordinary, precondemnation use of the targeted property
inflicted affirmative harm on society,” whereas the property in Kelo did not (575). Also, each taking in
Berman and Midkiff “directly achieved a public benefit,” whereas the taking in
Kelo, achieved, if anything, an
indirect public benefit (575). In Berman,
the court upheld the constitutionality of a revitalization project for a
blighted area of Washington, D.C. The project affected the area as a whole, not
just random individuals. The majority contended that although the houses of the
plaintiffs in the Kelo case were not
blighted, the legislature’s determination that “the area was sufficiently distressed
to justify a program of economic rejuvenation is entitled to our deference”
(572). This logic gives too much power to the legislature to make judgments it
is not fit to make. Legislators are not qualified as judges of home value and
upkeep and are liable to err, which is evidenced in the fact that it allowed
the taking of Susette Kelo’s property even though she had made “extensive
improvements to her house” (571). If the legislature relied on facts to
conclude that the properties involved in the Berman case were blighted, its determination should be respected.
However, in the Kelo case, the
legislature clearly did not rely on any such evidence, and therefore, an
external judicial check is needed to reign in governmental powers.
In Hawaii Housing Authority v. Midkiff, the court upheld the
legislature’s taking of property for the opposite reason of Berman—the properties were not blighted,
but instead a few elites owned a majority of the land. The court determined it
should defer to the legislature’s determination that in effect eliminated an
oligopoly that was a “social and economic evil” (572). Just as the plaintiff’s
land was not blighted, it was also not part of an oligopoly. By owning her
land, the plaintiff was not negatively impacting society or the economy. While
the majority implicitly claimed that the plaintiff was hurting the economy by
occupying space that more lucrative businesses could have owned, this
reasoning, while logical, is not constitutional. In Kelo, the state had no justification to take the property by its
police power because the property did not interfere with the health, safety,
morals, or general welfare of society. Government also did not have any justification
for seizing it with its takings power, because the land was not going to be directly used for the public. As long as
the private property does not directly harm society, government cannot take it
and give it to another private entity—even if the entity is a business.[6] Because
Midkiff and Berman concerned private property that was harmful to society,
their precedents do not have any bearing on Kelo.
Another precedent that the
majority employed in their decision in Kelo
was that of deferring to legislative determinations of public use. O’Connor
and Thomas found fault with this precedent. While O’Connor believed that
deference to the legislature in determining whether the land serves a public
use is valid, she contended that “an external, judicial check on how the public
use requirement is interpreted, however limited, is necessary if this
constraint on government power is to retain any meaning” (574). She then cited
three categories of takings which the Court previously held to be
constitutional: the least controversial—a transfer of private property to
public ownership, more controversial—a transfer of private property to private
parties who make the property available for public use, and most
controversial—a transfer of private property to a private entity who may use
the land privately in order to meet “certain exigencies” (575). Note that
O’Connor did not believe economic development takings were constitutionally
justified by any of the aforementioned categories. O’Connor believed that
because the government could abuse the third category of takings, the Court
must actively review—and sometimes overturn—legislative decisions in order to
protect the sanctity of private property.
While O’Connor’s view on
deference to the legislature was moderate, Thomas’ view was extreme. He
attacked deference to the legislature, declaring that “there is no
justification … for affording almost insurmountable deference to legislative
conclusions that a use serves a “public use” (577). He claimed that because the
public use determination is at its heart a legal question, the Court should
review legislative acts just as it would review acts dealing with other
provisions of the Bill of Rights—such as search and seizure. He brought this argument
to life, claiming that because studies have shown that minorities are most
often the victims of urban renewal plans, the Court, in accordance with the
famous footnote in United States v. Carolene Products Co., has an even greater
responsibility to review these plans.[7] Both
O’Connor and Thomas criticized the majority’s insistence that the legislature’s
judgment on situations dealing with the Public Use Clause is paramount. The
Court needs to fulfill its responsibility to protect private property.
Not only did the Court shirk its
responsibility by deferring to the legislature, it further deviated from its
purpose by putting the burden on the each state to protect private property by
reminding each state that it has the power to place “further restrictions on its
exercise of the takings power” (574). O’Connor condemned the majority’s
suggestion, calling it “an abdication of our responsibility,” because though
the government is federal, the enforcement of private property rights against
(primarily) state intrusions is the job of the federal government (576). Power
is addicting and ever-expanding;[8]
the Court must not rely on state governments to limit their own power.
In order to protect private
property rights, the framers created strict requirements for governmental
taking—the most important of which is the Public Use Clause. This strict
requirement is a reflection of their reverence for private property. Thomas Jefferson,
a Lockean scholar, thought property should be defined as that which is
developed by a man’s “own industry or that of his fathers,” and should only be
limited when he owns an excess of property resulting in “uncultivated land.”[9] Susette
Kelo adhered to Jefferson’s conception of property. She did not have more land
than she could feasibly improve—in fact, she made several improvements to her
land. She was causing no direct harm to society; nevertheless, government took
her land and gave it to another private entity. The majority decision in Kelo emasculates the main limit on the
takings power of the federal government, and therefore conceivably puts all
private property in jeopardy. Because of this decision, no longer are people
protected from being deprived of their right to property, as the framers first
established. This decision is an unconstitutional precedent that constitutes a
slippery slope for possible future governmental encroachments on private
property.
[1] Richard Beeman, Plain, Honest Men: The Making of the
American Constitution (New York: Random House, 2009), 311-312.
[2] Justice Thomas’ dissent
recognizes the increase of governmental power inherent in the public purpose
precedent: “Once one permits takings for public purposes in addition to public
uses, no coherent principle limits what could constitute a valid public use”
(Rossom and Tarr, American Constitutional
Law, Volume I, 577).
[3] In-text parenthetical citations
are taken from Rossom and Tarr, American
Constitutional Law, Volume I.
[4] Examples of sections of the Constitution
that use the phrase “general welfare” are the Preamble and Article 1, Section
8.
[5] In his concurrence to Hein v.
Freedom from Religion Foundation, Justice Antonin Scalia attacks the use of
judicial minimalism, or stare decisis, when he declares, “Minimalism is an
admirable judicial trait, but not when it comes at the cost of meaningless and
disingenuous distinctions that hold the sure promise of engendering further
meaningless and disingenuous distinctions in the future. The rule of law is ill
served by forcing lawyers and judges to make arguments that deaden the soul of
the law, which is logic and reason.”
[6] Justice Thomas would take issue
with this argument. He would say that the government cannot seize private
property with its police power at all. In his view, the Takings Clause is the
only means by which government can take private property, and therefore it must
satisfy both the requirements—public use and just compensation. According to
Thomas, the fact that a certain piece of private property harms the health,
safety, morals, or general welfare of society has no bearing on whether
government can take it.
[7] The United States v. Carolene
Products Co. footnote stated, “There may be narrower scope for operation of the
presumption of constitutionality when legislation appears on its face to be
within a specific prohibition of the Constitution.” The Court further decided
that it should pay special attention to statutes “directed at particular
religious … or national … or racial minorities” (571).
[8] Bernard Bailyn, The Ideological Origins of the American
Revolution (Cambridge: Harvard University Press, 1992), 56-59.
[9] The first phrase is taken from
Jefferson’s Second Inaugural Address in 1805. The second phrase is taken from
Jefferson’s letter to James Madison on October 28, 1785. See Barbara Arniel, John Locke and America (Oxford:
Clarendon Press, 1996). The chapter entitled “Locke, Jefferson and the
Amerindian” is especially relevant to a discussion of Locke’s influence on
Jefferson’s conception of property.
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