Thursday, June 23, 2005

Kelo v. New London

There's much cussin' and discussin' on Slashdot about today's Supreme Court ruling in Kelo v. New London. This blog entry is a slight rewrite of a comment I posted there.

First of all, just for some quick background, the Fifth Amendment does not allow the government to take private property for private use at all. When taking private property for public use, it must sometimes compensate the owner.

Past public use cases Court mention in the opinion:

Berman v. Parker (1954) The Court upheld a Washington DC law that allowed the government to condemn and take private lands in blighted areas, compensate the owners, and then lease or sell the land to potential developers. The Court held that renovating a slum was not a "private purpose" under the Takings Clause.

Hawaii Housing Authority v. Midkiff (1984) In Hawaii, a small number of landowners owned almost all the land. Almost everyone else was renting. The Court upheld a Hawaii law that let long-term tenants ask a state authority to condemn the land they lived on, compensate the owner, and then sell the land to the tenant. Again, the Court held that this process was "public use" under the Takings Clause.

Much of the discussion revolved around the fact that the decision seems to be a liberal/conservative split.

At first blush, it looks like the ruling in Kelo v. New London, that the government can condemn and take houses in a non-blighted area, compensate the owners, and give them to a developer for redevelopment in an attempt to rejuvinate the town, doesn't seem to be much of an extension of the other two cases.

On the other hand, I get the feeling there's some maneuvering going on, here. Notice in Hawaii Housing Authority how a very similar interpretation of public use allowed the government redistributed large concentrations of property to "the little guy." Also, keep in mind that property doesn't just mean land: shares of corporate stock are also property. Property rights include things like how you're allowed to use land, too.

On the third hand (the Vorlon hand?) the Court's willingness to defer to the legislature seems to give governments a lot of power. I haven't decided yet whether that's good or bad. The answer may wind up going pretty deeply into why a society chooses to enforce property rights in the first place, and who would be likely to have that power if the government didn't.

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