Constitutional Law 101

You might think that decisions of the Supreme Court involving condemnation are beyond your concern. Ordinarily, we would care less about such things. However, nothing could be further from the truth in this case (Kelo vs. City of New London, U.S...


No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of war or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb, nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty or property, without due process of law; nor shall private property be taken for public use without just compensation.”
— Fifth Amendment to the U.S. Constitution

The Taking Clause:

The power of unelected people to condemn private property without any recourse or appeal.

You might think that decisions of the Supreme Court involving condemnation are beyond your concern. Ordinarily, we would care less about such things. However, nothing could be further from the truth in this case (Kelo vs. City of New London, U.S. Supreme Court Case 04-108, 2005).This is a big one. It will be discussed pro and con for years to come until it is over-ruled or its effect changed because of legislative action. And it will be, in my opinion.

Development agencies, created by Congress, formed for the purpose of clearing out and building new structures in so-called “blighted areas” and their willing accomplices in city government, are the culprits. The development agencies are private nonprofit corporations set up to assist city councils with economic development. They are funded partly by your tax dollars, and are not elected by popular vote. Their directors and employees are privately appointed. These bureaucratic organizations, usually staffed by political hacks, control to a large extent, what can happen to private citizen owned property without any recourse by citizens.

The U.S. Constitution provides that the government cannot take any private property. The Fifth Amendment clearly states that … “private property shall not be taken for public use, without just compensation.” (See above.) Some say this means that private property cannot be taken even with just compensation, if for a nonpublic use.

Free Enterprise

Suppose your city wants to build a new stadium through its development agency, for a football or baseball team in order to keep them from leaving town. There is just no more land for such an enterprise in the city property list. You work on a small privately owned airport just inside the city limits. It has a few hundred general aviation planes, two or three FBOs, gas pumps, storage hangars, tie downs, and a nice restaurant. On top of all this it is bounded by two handy freeways. Everybody knows that this small airport does not generate very much money for the city anyhow. Adjacent to the airport are private parcels required for parking and other services. This is all private property held by private owners who may not want to see a stadium on this land and won’t sell their property at any price. Condemnation is the obvious answer for the city. The employees at the airport could go someplace else to work. The airplanes parked at another airport. The other homeowners could move somewhere else, so say the bureaucrats.

If all this private property were condemned a stadium would of course be initially owned by the city. Could they ever sell it to the ball team or another private entity? If the stadium is owned by the city it is a public use, then its construction can be by condemnation — eminent domain. But, if the city wants the stadium built and owned privately it’s not a public use. Does this make sense? This is what the Supreme Court said in June of last year.

One of my writer friends described this process as one of taking a lot of people’s property to give it to a few in order for the few to make a profit.

Most of us believe that private enterprise provides a much more efficient way to develop such projects. The argument is simply that the free market provides more efficiency than government.

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