Federal Courts Allow Private Property Taken for Private Use

So developers can turn to local government officials and ask them to seize private property using “eminent domain,” by which governments have legal authority to take private property for public use, as long as owners are justly compensated. This legal power is used for assembling property to build roads and other traditional government uses, constrained by the final words of the Fifth Amendment: nor shall private property be taken for public use, without just compensation. 

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 offense 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.

George Mason University law professor Ilya Somin, in a July 29, 2015 Washington Times article quotes Alexander Hamilton on property, then notes the Supreme Court has relaxed protections against government seizures of private property:

As Alexander Hamilton put it in a speech at the Constitutional Convention, most of them believed that “one great obj[ect] of Gov[ernment] is the personal protection and security of property.”

The Constitution includes several provisions protecting property rights from the depredations of government. Unfortunately, the Supreme Court has often failed to fully enforce them, relegating constitutional property rights the status of a “poor relation,” as a 1994 decision critical of such tendencies put it. 

Early twentieth-century Progressives argued that the courts should leave property rights to the political process, so that government planners could restructure them in order to benefit society. This ideology triumphed during the New Deal, and continues to wield considerable influence even today, though the situation has improved in recent years.  

Somin is the author of The Grasping Hand: “Kelo v. City of New London” and the Limits of Eminent Domain (published May, 2015). For NCFCA debaters researching the federal courts topic, the case can be made that it is time (or well past time) for the federal courts to defend private property owners from developers and local governments misusing the power of eminent domain.

Somin compares the strong federal court protection against governments searching homes (warrants are required), to the relative lack of protection against governments seizing entire homes:

The Court’s deference to the government in determining what counts as a public use issues effectively allows the scope of a constitutional right to be decided by the very government entities whose abuses that right is supposed to constrain. It is the equivalent of letting the police decide what qualifies as a “reasonable” search under the Fourth Amendment. As Justice Clarence Thomas put in his Kelo dissent, the Court carefully scrutinizes legislative judgments “when the issue is only whether government may search a home,” yet is unwilling to question “the infinitely more intrusive step of tearing down … homes.”

Somin concludes:

There is now growing recognition that judicial enforcement of constitutional property rights should be strengthened. But while the Court’s performance in this vital field has improved, there is still a long way to go before the right to private property can fully shed its “poor relation” status. 

 Edward Glaeser reviews The Grasping Hand in a July 24, 2015 WSJ article, “They Can Take It If They Want It.” It has been ten years now since the Supreme Court’s decision in the Kelo v. City of New London” case, which allowed, in a close decision, seizure of private land to transfer to local developers. Even though the public outcry that followed led over forty state legislatures to pass restrictions on eminent domain, Glaeser argues:

Yet in reality, the public power to take private property for almost any purpose remains practically unchanged. In “The Grasping Hand,” Ilya Somin argues that “the backlash has yielded far less effective reform than many expected.” Mr. Somin, a law professor at George Mason University, provides a fine tour of the case and of the intellectual history of eminent-domain law. More important, he provides a framework for thinking about the future of eminent domain and private property.

Glaeser’s article reviews the facts in the Kelo case, and also notes it was one among a great many eminent domain events for private (rather than public) use:

One study found more than 10,000 examples of “actual or threatened condemnation for private parties between 1998 through 2002.” 

Apart from the ethical issues (taking property by force or the threat of force), and the legal issues (violating Constitutional prohibition of taking private property for private uses), is an economic or empirical problem. The seizures end up not benefiting the public and often not even the private developers. Glaeser, an expert on urban development issues, notes:

Moreover, as public policy, the plan looked bad. The use of tax breaks and eminent domain to lure large employers to declining cities is almost always an error. Urban reinvention typically proceeds from education and small-scale entrepreneurship, not large-firm relocations. How exactly were the city’s poor going to benefit from “upscale housing” or a “five-star hotel”?

(Glaeser’s great book, Triumph of the City: How Our Greatest Invention Makes Us Richer, Smarter, Greener, Healthier, and Happier is highly recommended for students interested in urban development and development economics. I discuss Triumph of the City and economic development in this online article (pdf).

Here is page with 14-minute Fox News segment on the Kelo case and later decision not to develop the seized land after all. (Plus, as an added bonus, at 3 minutes in, John Stossel talks to Donald Trump about having government officials use eminent domain to seize private property in New Jersey for a casino.)

Somin’s May 29, 2015 post, “The story behind Kelo v. City of New London – how an obscure takings case got to the Supreme Court and shocked the nation” also gives background to the story, and is one of a series of posts on the topic.

See also this June 1, 2015 Above the Law interview with Ilya Somin, Kelo v. City of New London And The Limits of Eminent Domain: An Interview With Ilya Somin.

The Cato Institute hosted a Book Forum (link to page and video) on the 2009 book Little Pink House: A True Story of Defiance and Courage (link to book on Amazon).

Now a movie, Little Pink House, is in production, with a Facebook page here. Filming begins in September.

Ted and Courtney Balaker write on the Kelo case in this June, 2014 USA Today column, “Culture can help tame eminent domain abuse,” noting in inequality and injustice dimensions:

A working-class nurse named Susette Kelo never expected her name to be forever tied to a controversial U.S. Supreme Court case, but Monday marks the ninth anniversary of Kelo vs.City of New London. The infamous decision that bears her name gave government officials the power to bulldoze a neighborhood for the benefit of a multibillion-dollar corporation. 

… The Constitution once limited how governments could use eminent domain, but post-Kelo, that’s no longer the case. Officials routinely lock arms with corporations or billionaires to forcibly transfer property from one private owner to another, not for public use, but for private gain.

The powerful bullying the powerless — that’s the opposite of inclusion. And how about diversity? Eminent domain abuse typically strikes poor and minority communities. Not at all compassionate, but it encapsulates the Barclays Center’s dodgy backstory, in which officials flattened a neighborhood that was more diverse than powerful to erect a massive complex that has enriched developers and the NBA franchise that calls the facility home.