Thursday, June 23, 2005


Supreme Court rules gov't can take private homes to benefit private real estate developers

The US Supreme Court has ruled that cities may take the property of citizens for purposes of allowing private developers to generate taxes and create jobs. The case is Kelo et al v. City of New London, 04-108.

The 5-4 ruling represented a defeat for some Connecticut residents whose homes are slated for destruction to make room for an office complex. They argued that cities have no right to take their land except for projects with a clear public use, such as roads or schools, or to revitalize blighted areas.

As a result, cities now have wide power to bulldoze residences for projects such as shopping malls and hotel complexes in order to generate tax revenue.

Writing for the court, Justice John Paul Stevens said local officials, not federal judges, know best in deciding whether a development project will benefit the community. States are within their rights to pass additional laws restricting condemnations if residents are overly burdened, he said.

"The city has carefully formulated an economic development that it believes will provide appreciable benefits to the community, including — but by no means limited to — new jobs and increased tax revenue," Stevens wrote in an opinion joined by Justice Anthony Kennedy, David H. Souter, Ruth Bader Ginsburg and Stephen G. Breyer.

"It is not for the courts to oversee the choice of the boundary line nor to sit in review on the size of a particular project area," he said.

One might think, however, that it would be the responsibility of the courts to protect the property rights of the individual citizens. This was the position of the minority, which consisted of the four generally conservative justices:

Justice Sandra Day O'Connor, who has been a key swing vote on many cases before the court, issued a stinging dissent. She argued that cities should not have unlimited authority to uproot families, even if they are provided compensation, simply to accommodate wealthy developers.

"Any property may now be taken for the benefit of another private party, but the fallout from this decision will not be random," O'Connor wrote. "The beneficiaries are likely to be those citizens with disproportionate influence and power in the political process, including large corporations and development firms."

She was joined in her opinion by Chief Justice William H. Rehnquist, as well as Justices Antonin Scalia and Clarence Thomas.

It seems ironic that the "liberal" justices sided with wealthy private real estate developers and against the little guy, the individual working-class homeowner. Obviously, the supposed traditional liberal position of "standing up for the little guy against the wealthy" has no application when the issue is an expansion of government power and the glorification of the collective good over the property rights of the individual.

UPDATE: From the dissenting opinion, written by Justice O'Connor, joined by Rehnquist, Scalia and Thomas:


Over two centuries ago, just after the Bill of Rights was ratified, Justice Chase wrote:
'An ACT of the Legislature (for I cannot call it a law) contrary to the great first principles of the social compact, cannot be considered a rightful exercise of legislative authority ... . A few instances will suffice to explain what I mean... . [A] law that takes property from A. and gives it to B: It is against all reason and justice, for a people to entrust a Legislature with SUCH powers; and, therefore, it cannot be presumed that they have done it.' Calder v. Bull, 3 Dall. 386, 388 (1798) (emphasis deleted).

Today the Court abandons this long-held, basic limitation on government power.
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--i.e., given to an owner who will use it in a way that the
legislature deems more beneficial to the public--in the process.
To reason, as the Court does, that the incidental public benefits resulting from the subsequent ordinary use of private property
render economic development takings 'for public use' is to wash out any distinction between private and public use of property
--and thereby effectively to delete the words 'for public use' from the Takings Clause of the Fifth Amendment. Accordingly I respectfully dissent.

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