After approving an integrated development plan designed to revitalize its ailing economy, [New London, Connecticut], through its development agent, purchased most of the property earmarked for the project from willing sellers, but initiated condemnation proceedings when petitioners, the owners of the rest of the property, refused to sell. Petitioners brought this state-court action claiming, inter alia, that the taking of their properties would violate the "public use" restriction in the Fifth Amendment's Takings Clause. The trial court granted a permanent restraining order prohibiting the taking of the some of the properties, but denying relief as to others. Relying on cases such as Hawaii Housing Authority v. Midkiff, 467 U. S. 229, and Berman v. Parker, 348 U. S. 26, the Connecticut Supreme Court affirmed in part and reversed in part, upholding all of the proposed takings.
Held: The city's proposed disposition of petitioners' property qualifies as a "public use" within the meaning of the Takings Clause.
Kelo v. City of New London (opinion text provided by Findlaw)
As a practical matter, this means that you've got good title to your property, and the right of ownership, as long as there isn't a politically connected developer in your hometown who'd like to build a Wal-Mart where your family home sits now.
The attorneys at the Institute for Justice--an enrevanche Preferred Charity, by the way--were litigating the case on behalf of the New London homeowners, as part of their nationwide campaign against eminent domain abuse. They are, of course, utterly horrified:
Dana Berliner, [a] senior attorney with the Institute for Justice, said, "It’s a dark day for American homeowners. While most constitutional decisions affect a small number of people, this decision undermines the rights of every American, except the most politically connected. Every home, small business, or church would produce more taxes as a shopping center or office building. And according to the Court, that’s a good enough reason for eminent domain."And once again, it's the conservatives on the Court who are on the right--er, correct--side of this issue. Justice O'Connor writes, in her withering dissent:
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.And, later, the kicker (and the real point):
Any property may now be taken for the benefit of another private party, but the fallout from this decision will not be random. The beneficiaries are likely to be those citizens with disproportionate influence and power in the political process, including large corporations and development firms.I've said it before, and I'll say it again: a principled conservative is the little guy's best friend in the judiciary. Court conservatives were a beacon of sanity in the recent medical marijuana decision, Gonzalez v. Raich, and here they are again--an oasis of common sense in a desert of interpretive insanity.
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