New London woes

Today the Supreme Court ruled on the pressing New London eminent domain case in support of the Connecticut Supreme Court, a decision that I find misguided and dangerous. I can’t say that I like agreeing with either Justice Thomas or O’Connor, who dissented, but in this case their arguments are to my mind reasonable and sane. From my point of view, the court continues its hands-off decisions, assenting to too much authority in the hands of the state over the individual. What follow are some snippets that I find interesting from the case. Links are in original and italics are mine for emphasis. Justice Stevens in his opinion writes this

Those who govern the City were not confronted with the need to remove blight in the Fort Trumbull area, but their determination that the area was sufficiently distressed to justify a program of economic rejuvenation is entitled to our deference. The City has carefully formulated an economic development plan that it believes will provide appreciable benefits to the community, including–but by no means limited to–new jobs and increased tax revenue. As with other exercises in urban planning and development,12 the City is endeavoring to coordinate a variety of commercial, residential, and recreational uses of land, with the hope that they will form a whole greater than the sum of its parts. To effectuate this plan, the City has invoked a state statute that specifically authorizes the use of eminent domain to promote economic development. Given the comprehensive character of the plan, the thorough deliberation that preceded its adoption, and the limited scope of our review, it is appropriate for us, as it was in Berman, to resolve the challenges of the individual owners, not on a piecemeal basis, but rather in light of the entire plan. Because that plan unquestionably serves a public purpose, the takings challenged here satisfy the public use requirement of the Fifth Amendment.

The problem that surfaces here is the confounding of eminent domain, “benefits to the community,” the idea of “public purpose,” all in the context of taxes, jobs, and the justice’s “deference.” Further, he writes

Promoting economic development is a traditional and long accepted function of government. There is, moreover, no principled way of distinguishing economic development from the other public purposes that we have recognized. In our cases upholding takings that facilitated agriculture and mining, for example, we emphasized the importance of those industries to the welfare of the States in question, see, e.g., Strickley, 200 U. S. 527; in Berman, we endorsed the purpose of transforming a blighted area into a “well-balanced” community through redevelopment, 348 U. S., at 33;13 in Midkiff, we upheld the interest in breaking up a land oligopoly that “created artificial deterrents to the normal functioning of the State’s residential land market,” 467 U. S., at 242; and in Monsanto, we accepted Congress’ purpose of eliminating a “significant barrier to entry in the pesticide market,” 467 U. S., at 1014-1015. It would be incongruous to hold that the City’s interest in the economic benefits to be derived from the development of the Fort Trumbull area has less of a public character than any of those other interests. Clearly, there is no basis for exempting economic development from our traditionally broad understanding of public purpose.

I agree that one of government’s jobs is to promote economic development (by staying out of peoples’ way as much as possible, yet restraining behavior that puts the public good in danger), but in the context of the above paragraph, there’s no strong connection being made analogically between the New London case and those cited , which is what I find as the greatest weakness of the 5 to 4. How do Berman, Midkiff, and Monsanto fit; hence, how would a nay opinion be incongruous? The question isn’t whether economic development has something to do with public purpose but whether the State has proven that its needs are greater than those of the individuals in “this” case. Oligopoly and blight aren’t at issue. “No principled way,” the justice writes. Bull. The latitude being given to a principle here is astounding. If Microsoft wanted to buy West Simsbury, proving to the state house that it would generate money and jobs, which I’m sure it would, how does Steven’s standard of judgement provide a legitimate framework for consistency (which to me is a public good)? And it’s not just Microsoft, it’s anyone who has more money than I do who could claim my property.

On the other hand, here’s what O’Connor has to say. She writes

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

The Fifth Amendment to the Constitution, made applicable to the States by the Fourteenth Amendment, provides that “private property [shall not] be taken for public use, without just compensation.” When interpreting the Constitution, we begin with the unremarkable presumption that every word in the document has independent meaning, “that no word was unnecessarily used, or needlessly added.” Wright v. United States, 302 U. S. 583, 588 (1938). In keeping with that presumption, we have read the Fifth Amendment’s language to impose two distinct conditions on the exercise of eminent domain: “the taking must be for a ‘public use’ and ‘just compensation’ must be paid to the owner.” Brown v. Legal Foundation of Wash., 538 U. S. 216, 231-232 (2003).

The emphasis here is going to be on the concept of public use and providing a strict standard for its definition. O’Connor comments on the relevance of Steven’s earlier examples

The Court’s holdings in Berman and Midkiff were true to the principle underlying the Public Use Clause. In both those cases, the extraordinary, precondemnation use of the targeted property inflicted affirmative harm on society–in Berman through blight resulting from extreme poverty and in Midkiff through oligopoly resulting from extreme wealth. And in both cases, the relevant legislative body had found that eliminating the existing property use was necessary to remedy the harm. Berman, supra, at 28-29; Midkiff, supra, at 232. Thus a public purpose was realized when the harmful use was eliminated. Because each taking directly achieved a public benefit, it did not matter that the property was turned over to private use. Here, in contrast, New London does not claim that Susette Kelo’s and Wilhelmina Dery’s well-maintained homes are the source of any social harm. Indeed, it could not so claim without adopting the absurd argument that any single-family home that might be razed to make way for an apartment building, or any church that might be replaced with a retail store, or any small business that might be more lucrative if it were instead part of a national franchise, is inherently harmful to society and thus within the government’s power to condemn.


Even if there were a practical way to isolate the motives behind a given taking, the gesture toward a purpose test is theoretically flawed. If it is true that incidental public benefits from new private use are enough to ensure the “public purpose” in a taking, why should it matter, as far as the Fifth Amendment is concerned, what inspired the taking in the first place? How much the government does or does not desire to benefit a favored private party has no bearing on whether an economic development taking will or will not generate secondary benefit for the public. And whatever the reason for a given condemnation, the effect is the same from the constitutional perspective–private property is forcibly relinquished to new private ownership.

. . .

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. As for the victims, the government now has license to transfer property from those with fewer resources to those with more. The Founders cannot have intended this perverse result.

It seems to me, despite the problems with the relevance of Midkiff et al, that the majority failed to live up to the simple test O’Connor brings up here: how far should we go in loosening the standard for defining public use as well as problematicizing the roles of individuals, private owners, and the extend to which the state should act on the behalf of either. I agree with O’Connor about the question of power here. Can we simply allow a tranfer of property from one holder to the next, even if a new holder could show “benefit”? I water, keep the lawn up, do some gardening, and pay my taxes. Certainly, though, some other owner could turn my property into a chicken farm and sell loads of fresh eggs. We could argue that neighborhoods and quality of life go hand in hand, but ultimately thats too arbitrary for the court. Here’s Thomas’ concluding statement

The Court relies almost exclusively on this Court’s prior cases to derive today’s far-reaching, and dangerous, result. See ante, at 8-12. But the principles this Court should employ to dispose of this case are found in the Public Use Clause itself, not in Justice Peckham’s high opinion of reclamation laws, see supra, at 11. When faced with a clash of constitutional principle and a line of unreasoned cases wholly divorced from the text, history, and structure of our founding document, we should not hesitate to resolve the tension in favor of the Constitution’s original meaning. For the reasons I have given, and for the reasons given in Justice O’Connor’s dissent, the conflict of principle raised by this boundless use of the eminent domain power should be resolved in petitioners’ favor. I would reverse the judgment of the Connecticut Supreme Court.

I agree.

2 thoughts on “New London woes

  1. susan

    And do you, like I, clearly hear the thunder as another right of the individual is taken away by virtue of that all encompassing “benefit to all?”

    Just another step in the wrong direction that will lead us all (the masses of individuals) into a police state status.

  2. Steve Post author

    The troublesome nature of this is clearly a problem, at least from my point of view, and yours. But I’ve always believed in the “police state” and the illusion of “choice.” So, I’m not surprized.

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