Constitutional Law 101

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.

Other Examples

Here’s another example. The city through one of its development agencies plans to condemn a group of homes so that apartments, condos, and townhouses can be built on the land. These are middle class homes being torn down for a residential privately owned project. The homes are not slums or blighted areas. Our newspaper described it as “destroying the village, in order to save it.”

No one was concerned with the fact of the removal of 188 families from their homes for what was described as the sacred goal of increasing the housing density (and tax income to the city). Again, as in the airport case, the bureaucrats could care less where all the airport employees would find other work and the homeowners other homes. The comments by the agency were only involved with the value of eminent domain in redevelopment. But where does development stop and stealing of privately owned land start?

How about this one. A car dealer wants to improve his leasehold and expand his dealership. He has been in negotiations with the landowner about buying the property from him. They are at an impasse in their negotiations. The tenant has a discussion with his buddies at the city regarding their condemning the land as “blighted” so it could be acquired by the city and redeveloped for the tenant car dealer. Far-fetched? Well it happened. The threat of condemnation was enough to force the landowner to reach a settlement with the tenant. What a deal.

In the Kelo case the petitioners maintained that the Fifth Amendment prohibits a development agency from condemning their property for the sake of an economic development plan. They claimed that the proposed use of their confiscated property is not “public” as required by the Fifth Amendment. While they agreed that the government may take their homes to build a railroad or a freeway or to eliminate a property use that harms the public, it cannot take their property for the private use of other owners simply because the new owners may make more productive use of the property. They lost!


The Supreme Court said that the city of New London’s proposed condemnations are for a “public use” within the meaning of the Fifth Amendment to the Federal Constitution and are therefore permitted.

In affirming the city’s authority to take the petitioners’ homes and properties, the court recognized the hardship that condemnation entails, notwithstanding the payment of so-called just compensation. They went on to say that if states don’t like the decision they could place their own further restrictions on this taking power. Indeed, some states have additional requirements already on their books. California’s law only allows a taking for economic development when property is blighted. Of course who decides what blighted means is another matter.

Congress can make changes to restrict this taking by simply passing new laws. You may recall recently where our new Chief Justice nominee, John Roberts under questioning by senators regarding the subject, said that the Congress can cut down the effect of this ruling and make its own decisions whether cities have this broad power to seize and raze people’s homes for private development. Have you seen this happen yet? You might inquire what your own state is doing to counteract this decision by contacting your local congressman or senator.

The Dissents

Justice Sandra O’Connor and Justice Thomas submitted strong written dissents on behalf of the other dissenters, Scalia and Rehnquist. This was a 5 to 4 decision. Stevens, Kennedy, Souter, Ginsberg, and Breyer joined in the majority.

Justice Sandra O’Connor wrote as her final comment in her dissent, “… Government now has the license to transfer property from those with fewer resources to those with more. The Founders (of this country) cannot have intended this perverse result.”

If you have any examples of takings in or around your city, airport, or neighborhood, please let us know at