Property Rights, Kelo v. New London

[Emsworth]

The decision was not only unsound, but also one of the worst decisions ever made by the Supreme Court.

The public use clause is just as much a limitation on the power of eminent domain as the just compensation clause. There is a right to be free from the taking of property for private use, just as there is a right to be fully compensated. Thus, any taking for private use is just as unconstitutional as any taking without just compensation.

Public use means nothing more than use by the public. When the government takes the property of one person, and gives it to a corporation, the resulting use is not public but private. In this case, however, that is precisely what New London did. It took Kelo's property, and turned it over to a corporation for "economic development." The Supreme Court has unfortunately transformed the "public use" clause into a "public purpose" clause, and accordingly sustained the seizure. This line of reasoning, however, is highly suspect and entirely invalid.

[Emsworth]

How about eminent domain for telephone lines and similar economic development projects?

A founding-era dictionary quoted by Justice Thomas in dissent defines "use" as "the act of employing any thing to any purpose." Only when the public actually employs the property in question is the public use clause satisfied. It is insufficient that the public will derive an incidental benefit from the property; the property must actually and directly be employed by the people, like a road, a park, or a post office.

However, when possession of property is turned over to a private corporation, whether for the building of telephone wires or otherwise, the use is not public but private. It is the corporation, not the public, that is employing the property; the public is merely deriving an incidental benefit. The use, therefore, is not public but private.

[Emsworth]

It also recognizes the appropriate use of eminent domain to eliminate blight, which may or may not result in the blighted property ending in the possession of a private entity. The elimination of blight can act to improve the health, safety, and welfare of the public and can also qualify as a public use.

I disagree with this view. The Fifth Amendment does not authorize taking for the "public welfare," but only taking for "public use." The latter is a much more limited term; it implies that the property must actually be used or employed by the public, not a private corporation. The mere fact that the public might obtain an incidental benefit is not relevant.

As Thomas argues, "The common law provided an express method of eliminating uses of land that adversely impacted the public welfare: nuisance law." Nuisance law is entirely distinct from the eminent domain power. It is entirely inappropriate for the government to use the eminent domain power to eliminate blight.

[Emsworth]

Then government is put squarely into a contradiction. To promote the general welfare is explicit in the preamble, and the protection of health, safety and welfare has been a long-standing duty of the government. A blighted property can be clearly detrimental to health, safety and welfare and thus to the general welfare. Enjoining governemntal action against such pro[ety creates a situation where the government is both expected to act and forbidden to act.

I never said that the government may not take action against usage of property that is detrimental to the public health. There certainly are measures the government may take. However, using the power of eminent domain is not one of them.

To repeat the Clarence Thomas quotation, "The common law provided an express method of eliminating uses of land that adversely impacted the public welfare: nuisance law." As the common law authorities (including Blackstone) make clear, the power of eminent domain is distinct from nuisance law. The former, which may be used at the government's whim, extends to those cases where the public is taking property for its own use. The latter, which requires indictment and trial, extends to those cases where an individual is doing something that adversely affects the public welfare.

[Emsworth]

Nuisance law may have had some ability to rectify detrimental properties in the past. Nuisance laws can correct problems with properties where the owner has a willingness to comply. The worst cases feature owners who are willing to flaunt their ability to beat the system. For instance, they might play a shell game of ownership, tie up fines in court indefinitely, or even paty the fines and say "so what?" For these cases there is no last resort in nuisance law for the government to abate the nuisance, and eminent domain is the true last resort.

I respectfully disagree. The state merely needs to amend the nuisance laws, so that the punishment includes forfeiture of the property in question.

The whole point is that the government may not just take property because it feels that it is not being put to good use. In such cases, an indictment and trial are necessary. The power of eminent domain, normally employable at the whim and caprice of the government, does not apply, the ultimate use of the property not being public.

[Emsworth]

The state may not make that punishment for nuisance laws - it would itself be a taking.

The takings clause does not extend to fines or forfeitures that punish crimes, just as it does not extend to taxes.

[Emsworth]

I don't know about NJ, but in IL violations of nuisance ordinances are not criminal offenses. They are prosecuted by the local unit of government, not by the State's Attorney. Local units of government may place a lien against property for the fines owed, but that doesn't extend to the taking of the property.

That certainly may be true. But just because one particular state's nuisance laws do not entail the elimination of blight, it does not follow that the eminent domain power may be used for that purpose. To conclude otherwise seems to involve a result-based approach to constitutional interpretation. The text of the Fifth Amendment appears to be quite clear: the taking must be for "public use"; in other words, the property taken must be used by the public.