No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.
On June 23, 2005, the Supreme Court, in a 5–4 decision, found for the City of New London. Justice John Paul Stevens wrote the majority opinion; he was joined by Justices Anthony Kennedy, David Souter, Ruth Bader Ginsburg and Stephen Breyer. Justice Kennedy also penned a concurring opinion setting out more detailed standards for judicial review of economic development takings than that found in Stevens’ majority opinion. Stevens said that local governments should be afforded wide latitude in seizing property for land-use decisions of a local nature. “The city has carefully formulated a development plan that it believes will provide appreciable benefits to the community, including, but not limited to, new jobs and increased tax revenue.” The decision pre-empted criticism of the possibility that the decision would be abused for private purposes by arguing that “the hypothetical cases posited by petitioners can be confronted if and when they arise. They do not warrant the crafting of an artificial restriction on the concept of public use.”
Justice Sandra Day O’Connor wrote the principal dissent, joined by Chief Justice William Rehnquist, Justice Antonin Scalia, and Justice Clarence Thomas. Justice O’Connor suggested that the use of this power in a reverse Robin Hood fashion—take from the poor, give to the rich—would become the norm, not the exception: “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.” She argued that the decision eliminates “any distinction between private and public use of property — and thereby effectively deletes the words ‘for public use’ from the Takings Clause of the Fifth Amendment.”
A Costco vice president, in a frank letter to a shareholder in 2002, acknowledged that this was now normal operating procedure–that the company had initiated “dozens” of projects utilizing or threatening eminent domain to take away enough land from former tenants for its 148,000-square-foot stores. If Costco “refrained from participating in these deals,” the VP wrote, “our competitors for those sites, like Target, Home Depot, Kmart, Wal-Mart, BJ’s, Sam’s Club, and many others, would take advantage of our reticence.”
I was looking at property this weekend, including some near a site for a future “big box” store. I was wondering if eminent domain might cause trouble for an investment in the area down the road if I decided to hold the property for an extended period of time.
Thankfully Florida passed a law explicitly preventing this type of abuse shortly after the Supreme Court ruling. Actually, an amendment was introduces, which passed in the November elections.
In thinking about it over July 4th, my opinion of eminent domain was probably the first ‘political’ decision I made in my life. (Although at the time I didn’t realize it.) I grew up in a rural area south of Denver, which was enveloped by the Denver Tech Center as I was growing up. My parents fought DTC development and encroachment often. I asked my dad once if we could just buy up a bunch of property to keep DTC from developing the area – he told me they could take it away anyway through the courts. That didn’t seem right to me at the time, and still doesn’t feel right today. You have to be careful though, sometimes you find yourself on the other side of the fence. One of the toughest things to do is apply your base principals in all cases. This got me thinking about how this country tends to apply it’s principals haphazardly – something I had to admit to myself I have been guilty of. Sometimes It’s tough to always “do the right thing.” That’s the great thing about a day like July 4th, makes you stop and think. I ended up spending part of the day re-reading The United States Constitution and the Amendments. Always a good read.