Definitions and Meanings

Justice Sandra Day O'Connor strongly opposed the majority decision (Urbigkit, 2006). She wrote, "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."

In its majority opinion, the court stated (Urbigkit, 2006): "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, 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."

The court recognized that while there is nothing to stop a city from taking property from one person and giving it to another for the sole reason that the second person will put the property to a more lucrative use and pay more taxes, "Such a one-to-one transfer of property, executed outside the confines of an integrated development plan, is not presented in this case." The court noted that such an unusual exercise of government power "would cause suspicion that a private purpose existed," such a hypothetical case "can be confronted if and when they arise."

The court concluded (Urbigkit, 2006): "In affirming the city's authority to take petitioners' properties, we do not minimize the hardship that condemnations may entail, notwithstanding the payment of just compensation. We emphasize that nothing in our opinion precludes any state from placing further restrictions on its exercise of the takings power. Indeed, many states already impose "public use" requirements that are stricter than the federal baseline. Some of these requirements have been established as a matter of state constitutional law, while others are expressed in state eminent domain statutes that carefully limit the grounds upon which takings may be exercised."

Justice Sandra Day O'Connor cautioned in her Kelo dissent that "all private property is now vulnerable to being taken and transferred to another private owner, so long as it might be upgraded (Fund, 2005)." She said that the decision's effect is to "wash out any distinction between private and public use of property -- and thereby effectively to delete the words 'for public use' from the Takings Clause of the Fifth Amendment."

However, O'Connor's dissent did not recognize that Supreme Court's gradual elimination of property rights began many years ago (Fund, 2005). There was the 1954 Berman decision, which stated that private property could be taken through eminent domain only for public uses. The court, however, defined the words "public use" to mean "public purpose," which would be determined by local officials.

When it comes to the definition of "blight," there have been numerous problems over the years (Fund, 2005). For example, many government agencies started tearing down working- and middle-class neighborhoods whenever private interests promised more lucrative uses of the properties in these neighborhoods. Justice Clarence Thomas summed up the problem in his dissent in Kelo: "Of all the families displaced by urban renewal from 1949 through 1963, 63% of those whose race was known were nonwhite, and of these families, 56% of nonwhites and 38% of whites had incomes low enough to qualify for public housing, which, however, was seldom available to them."

Thomas called the court's decision "far-reaching,...

He noted: "I do not believe that this Court can eliminate liberties expressly enumerated in the Constitution and therefore join her dissenting opinion. Regrettably, however, the Court's error runs deeper than this. Today's decision is simply the latest in a string of our cases construing the Public Use Clause to be a virtual nullity, without the slightest nod to its original meaning. In my view, the Public Use Clause, originally understood, is a meaningful limit on the government's eminent domain power."
The term "blighted" was also expanded for business needs (Fund, 2005). In 1981, the Michigan Supreme Court allowed the city of Detroit to tear down a stable neighborhood called Poletown to build a new General Motors plant. The Michigan Supreme Court finally rejected that decision last year, in a ruling that noted that property rights would be eliminated in the United States if cities could take private property when they found a use that would make more money.

Nine states -- Arkansas, Florida, Illinois, Kentucky, Maine, Michigan, Montana, South Carolina and Washington -- do not allow the use of eminent domain for economic development.

According to Fund (2005): "No one argues that struggling cities or states don't have a right to improve themselves through redevelopment. But the new civil-rights coalition forming in reaction to the Kelo decision says that need can't justify land seizures from which politically connected players stand to gain at the expense of individual civil rights. If the half-century since Brown v. Board of Education has taught us anything, it is that some rights are and must remain nonnegotiable."

Conclusion

O'Connor offered some powerful words in reaction to the decision (Urbigkit, 2006): "The specter of condemnation hangs over all property. Nothing is to prevent the State from replacing any Motel 6 with a Ritz-Carlton, any home with a shopping mall, or any farm with a factory."

She offers an interesting perspective. Cities have been using eminent domain to force people off their land for years, so that developers can use the land for the economic benefit of the area. Each state defines the powers the government has when it comes to eminent domain. However, the use of eminent domain and its constitutionality is questionable. In my opinion, the government is infringing on the freedom of citizens to own property. The government should protect the freedoms of its citizens, not trade them in for more tax dollars.

One possible solution to the problem of eminent domain would be to redefine the eminent domain law and possibly adjust the level of just compensation (McEowen, 2005). Reforming the current eminent domain process would protect homeowners against eminent domain abuses without declaring a federal prohibition on takings for economic development. These adjustments would protect all property owners - those whose property is taken for clear public uses and those whose property is taken for private economic development. Offering additional compensation would also discourage local governments from using eminent domain. Finally, providing a more "just" measure of compensation would leave the final decision about when to exercise the eminent domain power in the hands of local elected officials who are politically accountable to local citizens.

References

Fund, John. (July 11, 2005). Property Rights Are Civil Rights: Opposition to the Kelo decision crosses racial and party lines. Jewish World Review: 4 Tamuz 5765.

McEowen. (November, 2005). The Kelo case and eminent domain -- setting the record straight and a proposal for reform. AgDM Newsletter.

Urbigkit, Cat. (December 4, 2006). Eminent Domain: Kelo case made history. www.pinedaleonline.com