The U.S. Constitution Fifth Amendment states: “…nor shall property be taken for public use without just compensation.”
The taking of property for public use is a necessary power of any government at any level. Without the power, there could be no public roads, parks, utility easements or other public uses. The big question of just what is public use came before the Supreme Court in 2005 with Kelo v. City of New London, one of the most controversial decisions in recent memory. The City of New London determined that an area of the city, Fort Trumbull, needed to be revitalized and redeveloped to fit in with the plans of drug giant Pfizer, Inc. which intended to create a large nearby research facility. The city condemned the property of plaintiff Kelo and four others who did not want to sell their property. The area in question was by no means blighted, or even run-down. It just got in the way of a redevelopment plan. The area in question was about 5 1/2 acres out of a total of 90 acres. Plaintiffs argued that the plan would take their private property and transfer it to another private entity, the developer, and that this did not constitute a public use. The 5-4 majority, with Justice Kennedy providing the swing vote, held in favor of the city, finding that the action constituted a public use. Justice Sandra Day O’Connor issued a strong dissent, joined by Justice Antonin Scalia. She found that the decision effectively deletes the words “for public use” from the Takings Clause of the Fifth Amendment.
One commentator estimated that in the first year after the Kelo decision local governments used the threat or actually did condemn over 5,683 private parcels for transfer to other private parties. This shows the enormous power of a Supreme Court decision. Since the founding of the republic, all levels of government operated on the assumption that the taking of property for public use, actually meant for public use. Public use meant roads, utility easements, military installations, and the like. Nobody thought that a public use could mean a private use that government, in its wisdom, determines to be a better use than the current one.
Judge Richard Posner takes an interesting view of the case, finding the decision pragmatic because the storm of controversy the case unleashed resulted in a very democratic response. Posner is considered the leader of the pragmatic school of decision-making. “When the court declines to invalidate an unpopular government power, it tosses the issue back into the public arena.” I find Judge Posner’s take on this case a little troubling. Shall we call a “pragmatic” decision like Kelo a “Freak-out Decision” as in: “This will really cause everybody to freak out and will be good for the democratic process in the long run.”
It is difficult to determine what is a public use, when the use in question is by a private party. The debate over government’s right to take private property will go on for a long time. The decision in Kelo V. City of New London and its controversial view of just what is a public use had lit a fire under the issue.