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Bill of Frights! Can the Government Take Your Home?

From the Bill of Rights Institute’s Bill of Frights! week

“For every man’s house is looked upon by the law to be his castle of defense and asylum …” Sir William Blackstone, an english jurist from the 18th century, said these words in his seminal work Commentaries on the Laws of England. Though not an American, Blackstone’s words  are reflected in American  law. But some  believe the principle that one’s home is respected by legal institutions is under fire in the United States through the abuse and overuse of eminent domain.

The Takings Clause of the 5th Amendment empowers the national government to seize property needed for “public use,” but it also restricts government by requiring it to provide just compensation to the owner. The Supreme Court has applied these restrictions to state and local governments through the Fourteenth Amendment. Yet from 1998 through 2002, the Institute for Justice documented 10,000 properties in 41 states where eminent domain was used to transfer property from private citizens to private developers whose planned projects promise to boost the local economy.

The proposed redevelopment projects vary in scope and rationale. Some are done in the name of urban renewal and the cleaning up of “blighted” neighborhoods. In an example from 2003, New York City seized property in Brooklyn so that Bruce Ratner could build a stadium and bring his New Jersey Nets basketball franchise into the city. At the heart of the disputes of such projects is the definition of the Fifth’s Amendment’s words, “public use”.

In 2005, the Supreme Court took up this very issue in Kelo v. City of New London. The City of New London, Connecticut had on its desks a plan that involved a private developer who promised to create 3,169 jobs and bring in $1.2 million in annual tax revenue. Standing in the way of development were several New London homes, including one owned by Susette Kelo. Kelo challenged the constitutionality of the taking. In a 5-4 decision, the court sided with New London, holding that: “The city’s proposed disposition of petitioners’ property qualifies as a “public use” within the meaning of the Takings Clause.” In the majority opinion, Justice Stevens took note of court precedent that eminent domain takings a) need not examine a “blighted” are building-by-building, b) can rest on the states responsibility to “social and economic evils of a land oligopoly”, and c) the eschewing of “rigid formulas and intrusive scrutiny in favor of affording legislatures broad latitude in determining what public needs justify the use of the takings power.”

The Kelo decision brought fourth a firestorm of criticism. Justice Scalia, who voted in the minority and who is known for his originalist approach to the Constitution, stated recently that the Kelo ruling stood with Dred Scott as one of the few “mistakes” the Court had made in estimating its ability to “stretch beyond the text of the Constitution without provoking overwhelming public criticism and resistance.” Hyperbole aside, Kelo makes it easier for state and local governments to seize property from citizens and transfer the land deeds to private developers who promise economic development in economically depressed areas. So what do you think? Was the Supreme Court correct to interpret the Fifth Amendment as it did? Should these types of  takings be allowed?

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