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...

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.”

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