Your Home could be next: The Wonders of Eminent Domain

In 2005, the City of New London, Connecticut, contacted Suzette Kelo with an offer to purchase her home. Kelo, among other residents who where in the same situation, refused to leave the neighborhood. To acquire the titles of the home(s), the City of New London filed a court action of eminent domain, citing that they needed the land to improve the economy of the area by attracting developers who would create greater tax revenues. After losing the first case, Kelo and the others appealed the case to the U.S. Supreme Court in Kelo v. New London, citing that taking property from one private party and giving it to another isn't covered under the public use standard set in the Fifth Amendment, 545 U.S. (2005). The result; they lost again and the neighborhood residents were evicted from their homes under the police power of eminent domain. While it is not likely, it's a fear that every American must live with in the aftermath of Kelo.

Eminent domain is defined by Blacks Law Dictionary as:

"The Inherent power of a governmental entity to take privately owned property, esp. land, and convert it to public use, subject to reasonable compensation for taking" (Garner, 541). A governmental entity (i.e. a regional government) can take your house as long as they intend to use the property for public use and justly compensate you for your home.

But if a government takes property from a private party and gives it to another private party, does that action qualify as public use? Or, perhaps a government creates a regulation that devalues your property, taking it without paying. Have you been justly compensated? The classic legal answer is that it depends. These kinds of questions ultimately are answered by the nine Justices of the U.S. Supreme Court. They decide cases based on two things: the facts and their personal interpretation of the Takings Clause of the Fifth Amendment of The United States Constitution. The definition and application of the law is largely dependent on the ideological makeup and judicial philosophies of the Justices of The U.S. Supreme Court at the time a specific case is decided and also the historical and contemporary meaning of the constitutional clause that they are interpreting. In other words, you could lose your home due to a Justices interpretation of the law.

Historical Perspective

You might ask where this power comes from. The act of seizing property thru eminent domain results from the protective clause, called the "Takings Clause" of the Fifth Amendment which states: "[N]or shall private property be taken for public use, without just compensation" (U.S. Constitution). Interpreted in the context of the period of its drafting, the Fifth Amendment can be seen as a protective clause protects American liberties, but can also restrict them.

This act was developed to prevent the forced quartering of troops, for example, when the British Army forcibly took lodging in American homes during the Revolutionary war of 1775-1783.For our purposes it is more useful however to interpret the clause in context of the Lockean philosophy of protection of property, a view very important to the framers.

John Locke was a seventeenth century English philosopher whose theory of natural rights possessed by all human beings formed a foundation for much of the constitution. In his Second Treatise of Government, Locke proposed the idea that ownership of property and natural rights were inseparable and he also dispelled the theory of the so called divine right of kings in England. In the Second Treatise of Government Locke said:

[talking about man]...[I]t is not without reason, that he seeks out, and is willing to join in society with others, who are already united, or have a mind to unite, for the mutual preservation of their lives, liberties and estates, which I call by the general name, property (Locke, §123). According to Locke, to seize a persons property is to seize their freedoms, and therefore their rights, which is hardly what the framers had in mind.

Obviously, the takings clause was intended to guard against the improper and unjust seizure of property, preserve representative democracy, and therefore, maintain ones natural rights. It should be noted that Locke referred only to white, male, property owners, and excluded women, slaves, and natives from his doctrine. Because of this, they were not considered full enfranchised citizens at the time.

The Takings Clause

The Takings Clause gives where the government its ability to seize property, although it has to compensate the owner as according to the constitution.

A taking occurs when the government takes the property from one private party and gives it to another for a proposed public use or when the government effectively takes a property through regulation, without just compensation.

Just compensation means that if a government wants a property, they have to pay for it. The area where problems arise is when regulation goes too far or in other words greatly devalues a property to the detriment of the owner, thereby government effectively taking the property for its own purpose. The classic case for this concept of devaluation occurred in 1992 with the U.S. Supreme Court case Lucas v. South Carolina Coastal Council, 505 U.S. 1003 (1992). The court found for the property owner and let it suffice to say it's been the standard where the U.S. Supreme Court has protected the homeowner by way of interpreting the takings clause, since Kelo, however, that has all be flipped upside down.

The standard for public use is the one that has been flipped upside down. Before Kelo, to use the power of eminent domain there must be a substantial reason, like a highway, re-zoning, or some other public works project that will benefit the entire community.

U.S. Supreme Court: The Basics

The U.S. Supreme court and inferior courts in general were originally weak institutions of government, probably due to the fact that the Legislative and Executive branches received most of the attention at the Constitutional Convention of 1787. Instead, the U.S. Supreme Court (and with it other courts) gained their power in a very important case called Marbary v. Madison, 5 U.S. 137. Without going into too much detail, this case gave the power to declare a law unconstitutional, a great power indeed.

There are nine members called Justices and to overturn a decision of the lower court there must be a majority consensus on the constitutionality of an issue. Since each Justice gets one vote, it is pivotal that we understand the meaning of the idea of judicial philosophy. All judges generally follow the concept of Stare Decisis, defined as by the Cornell College of Laws Legal Information Institute as "to stand by things decided," This is the basic rule of respecting previous judges precedent opinion on cases, and while there is variance in degree of application, Judges of both judicial philosophies respect this standard. There are two basic threads of judicial philosophy are called judicial restraint and judicial activism. Restraint means that a Justice reads the Constitution strictly black and white, activism is where a Justice lets their personal beliefs and policies influence their decisions. This is important to know because those who follow restrain are usually defenders of homeowner's rights and those who follow activism are the opposite. The five Justices that held for New London (against Kelo) were activist Justices.

Kelo V. New London: The earthquake that shook the nation

In 2005, Kelo v. New London shattered the traditional definition of public use in a decision that gave government the power to take (with compensation) property from one private party and give it to another private party 545 U.S. (2005). In this case, the U.S. Supreme court departed from precedent of protecting homeowners and re-invented the concept of public use, essentially protecting governments.

New London, Connecticut was a city in economic distress after losing a military base that was a significant source of employment in the early 2000. As a result, the city needed to attract industry to create jobs. In order to do this, substantial plots of land were to be cleared in certain undesirable areas in order to make way for big business.

Suzette Kelo and other homeowners challenged the action arguing that taking their homes away to increase economic productivity was not something for the public use and transferring property rights from one private party to another was unconstitutional. In an astonishing opinion authored by Justice Stevens (a judicial activist) found that New London had not violated the constitution in its exercise of eminent domain as revitalization of the economy was a legitimate state interest. For better or worse, the effect of this decision is that counties can exercise eminent domain at their will for just about any reason. This has meant the emerging cliché of evicting homeowners of lesser means to make way for housing developments that will lure tax payers with deeper pockets is becoming a reality. You might wonder if Kelo is really such a big deal.

After Shock

Joyce H. Price of the Washington Times wrote an investigative piece called Eminent domain surges after ruling to answer just that question.

In the year since the Kelo decision, nearly 6,000 properties nationwide have been threatened or taken under that precedent, more than half the number that had been seized over a previous five-year period, said a report released yesterday by the Institute for Justice. "There has been a huge rise in the number of threats to use eminent domain since Kelo. Cities are wielding eminent domain as a club," said Dana Berliner, a senior counsel with the Institute for Justice and the author of the 100-page report. (Price 1)

Eminent domain is a complicated legal topic that ultimately rests in the hand of a select few people, the Justices of the U.S. Supreme Court. Whatever your personal take on the issue, the definition of what constitutes proper exercise of eminent domain has changed and it will affect American, for better or worse.