Kelo v. New London: Why Private Use Undermines the Takings Clause and Accountability
Introduction
The right to own private property without government interference is one of the most important rights for US citizens. However, the United States government’s eminent domain power enables it to acquire private property for public goods like highways, public parks, government offices, and other “public uses.” The Takings Clause of the Fifth Amendment constrains the government’s eminent domain power: “nor shall private property be taken for public use, without just compensation.”[1] The definition of “public use” for eminent domain became contentious in Kelo v. New London (2005) when the then-distressed municipality of New London, Connecticut, seized various private properties for an economic revitalization plan that would be executed by private developers. In doing so, New London aimed to take advantage of the incoming pharmaceutical company Pfizer’s potential to increase jobs and tax revenues by developing shopping centers, state parks, new neighborhoods, and more. Although the city believed all citizens would benefit from the “public purpose” of economic revitalization, private property owners sued New London for abusing its eminent domain power by selling their seized property to private developers, and the case reached the Supreme Court. Precedents in Berman v. Parker (1954) and Hawaii Housing Authority v. Midkiff (1984) expanded the interpretation of “public use” to include “public purpose.”[2,3] Thus, the Court followed precedent and found that the city’s taking of private property for private economic development fulfilled a “public purpose,” ruling in favor of New London in a 5-4 ruling. Based on the flawed precedents and abuses of the Takings Clause leading to the Kelo decision in favor of New London, it is clear that, when governments transfer private property to private entities through eminent domain, there is no public accountability for achieving public use.
The Unjustified Transition Away from the Original Interpretation of “Public Use”
Initially, the Supreme Court did not acknowledge “public purpose” as a valid use for land acquired by eminent domain. The majority opinion in Kelo acknowledged the transition in the constitutional interpretation of the Takings Clause: “While many state courts in the mid-19th century endorsed ‘use by the public’ as the proper definition of public use, that narrow view steadily eroded over time.”[4] The government typically used land acquired by eminent domain for explicitly public uses before the 20th century (e.g., highways, public parks, and government offices). These were public facilities that were managed by government officials, funded by tax revenue, and accessible or useful to all citizens.
Later, the Court expanded the interpretation of the Takings Clause to include “public purpose” and unjustly let state governments define it. 20th Century Supreme Court cases like Berman and Midkiff were among the first to expand the definition of “public use.” Petitioners in these cases sued their governments when they used eminent domain to transfer their private property to other private entities instead of using it for explicitly public uses. Because the governments in Berman and Midkiff aimed to advance rational government goals, addressing economic blight and land inequality, the Supreme Court ruled that the Takings Clause included private use for a “public purpose.” The Supreme Court consistently respected states’ police power and deferred to their judgments on legitimate public purposes. Although American constitutional law has a strong tradition of federalism, the states’ police power only applies to unenumerated federal rights in the Constitution. However, eminent domain is enumerated in the United States Constitution, so the right to define “public use” or “public purpose” does not belong to the states to begin with. As such, the Supreme Court should define “public use” and “public purpose.” This would protect federally protected private property rights from abuse by states inconsistently defining public purposes. After all, property is a fundamental right according to the Due Process Clause of the Fourteenth Amendment: “nor shall any State deprive any person of life, liberty or property, without due process of law.” If federal law has granted this right, states should not have the power to take it away from citizens. For this reason, the Supreme Court’s yielding approach has contributed to deep grievances from private property owners, especially since Kelo relied upon respect for state-defined public purposes and precedents in Berman and Midkiff.
Judicial activism in the cases leading to Kelo caused the Court to misinterpret “public use.” It was unfounded for the Supreme Court to expand its interpretation of “public use” to include “public purpose” just because the state governments aimed to advance government interests. The intention of the violation of eminent domain’s “public use” clause was irrelevant to its constitutionality. The Supreme Court’s purpose is to interpret the law based on the Constitution’s textual meaning and American constitutional law tradition. Before the 20th century, the Court consistently adhered to interpreting “public use” in its literal and traditional sense: uses funded by tax revenue and accessible to all citizens. Berman and Midkiff gave rise to uncalled-for judicial activism to increase the government’s eminent domain power beyond the bounds of the Taking Clause. For this change to take place, which allowed governments to legally seize private property for private use or a “public purpose,” the Constitution should have been amended. Since the issue was one rooted in the Constitution, a Supreme Court decision should not have determined future precedent. The Supreme Court should not have overstepped its judicial role and amended the Takings Clause through their decisions in Berman and Midkiff. I, therefore, find the precedents upon which Kelo was based void.
Transferring private property acquired by eminent domain to private entities undermines the writers of the Constitution’s intentions for “public use” and accountability. The Kelo majority opinion cited Midkiff to justify how transferring property acquired by eminent domain to private entities served a public purpose: “Our opinion also rejected the contention that the mere fact that the State immediately transferred the properties to private individuals upon condemnation somehow diminished the public character of the taking. ‘[I]t is only the taking’s purpose, and not its mechanics [...] that matters in determining public use.”[5] These claims that eminent domain’s mechanics are irrelevant overlook their severe consequences. When the government purchases private property for explicit public use, all citizens can access the resource, as it is paid for with tax dollars. Most importantly, if the citizens find the public resource undesirable, they can hold their leaders accountable by voicing opposition or voting them out. These accountability measures underlie the Framers’ explicit limitation of the eminent domain power to “public use.” Explicit public use ensures US citizen’s fundamental private property rights are preserved to the greatest extent possible, though some may argue that the concept of eminent domain itself goes against these rights. When the government uses eminent domain to transfer property from one private owner to another, even if there is a public intention, these public accountability measures are diminished. There is still accountability for the government, but not for the private entity. Nothing prevents the private entity from profiting from facilities aiming to serve a vague public purpose of economic development. Private entities are often not legally obligated to fulfill the public purpose in the same way as government officials may have intended them to, but their private ownership remains with no consequences. These drawbacks all come at the expense of people’s tax dollars spent on redevelopment plans and private property rights lost by the abuse of eminent domain. Furthermore, the government’s eminent domain power is compromised when property is transferred to private owners due to the government tradeoff between scrutinizing private entities to see through the public purpose and respecting private property rights. The government could repurchase the property to redress this private abuse of eminent domain with public administration, proving that public use is necessary for the just application of the Takings Clause. The government should stop unnecessarily acting as an unofficial realtor between private parties, vaguely justifying it as for a public purpose when the Framers never intended for this.
Flawed Application of the Takings Clause to the New London Economic Revitalization
Indeed, it is possible for governments to advance sound public purposes without abusing eminent domain. The petitioners in Kelo sued because New London seized their property to sell to private entities, similar to Midkiff and Berman. The petitioners’ private property would be repurposed for a mix of public and private uses: research and development, parking, retail services, or marina support services. New London justified the development project as serving a public purpose by increasing jobs and tax revenues, and the Court agreed: “Because that plan unquestionably serves a public purpose, the takings challenged here satisfy the public use requirement of the Fifth Amendment.”[6] Economic development is an undisputed purpose of the government. Although eminent domain can be an avenue to economic development through railroads, public schools, and more, it must not be abused by the Court by expanding the definition of “public use” to include private use for a public purpose. “Public use” means just that, and changing the meaning of the Takings Clause should only occur through constitutional amendments, not through the advocacy of appointed justices. If governments want to advance the sound goal of economic development, they can do so without abusing eminent domain through avenues such as investing in labor force training, investing in research and development, and providing subsidies to high-performing businesses. Perhaps instead of directly intervening in the real estate market using eminent domain, the government could provide subsidies to businesses to buy private property from owners in the open market. This way, private property owners’ constitutional rights would be safeguarded while advancing the government’s public purposes.
Private entities’ potential efficiency in achieving the public interest does not justify abusing the Takings Clause. The Kelo majority opinion justified selling private property obtained by eminent domain to other private entities to advance a public purpose: “The public end may be as well or better served through an agency of private enterprise than through a department of government.”[7] The Court suggests that the ability of private enterprises to execute projects for the public is superior to that of the government. Yet, this was not contested in Kelo. Even if private entities could serve the public interest better than the government, this does not justify misconstruing the Constitution’s decree for “public use”—not “public purpose”—and dismissing private entities’ lack of accountability when obtaining property for a public purpose under eminent domain. If private entities can execute public interests more effectively, then the government can give contracts—not ownership—to private companies to execute advancing the public interest with public facilities.
Bibliography
Kelo v. City of New London, 545 U.S. 469 (2005).
Berman v. Parker, 348 U.S. 26 (1954).
Hawaii Housing Authority v. Midkiff, 467 U.S. 229 (1984).
545 U.S. 469 (2005).
Ibid.
Ibid.
Ibid.