Federal Courts Abdicate Their Role
As Property Rights Protectors
State protections against eminent domain abuse have become all the more essential since the federal courts have abdicated their essential duty of enforcing constitutional limitations on eminent domain.
The demise of the U.S. Constitution’s “public use” clause began with the U.S. Supreme Court’s 1954 decision in Berman v. Parker, in which Washington, D.C., used eminent domain to renew what were in those days called “slums.” Rather than rule narrowly that the city could condemn decrepit tenements that presented a genuine threat to public health, the Supreme Court instead decided that the constitutional term “public use,” which had a specific historical definition, could be blurred to mean accomplishing merely a “public purpose,” such as slum removal. Worse yet, the Supreme Court also decided that local governments wielding eminent domain, rather than courts, get to decide what constitutes a “public purpose.” Thus, a vital constitutional check on government’s power of eminent domain was lost.
The erosion of the “public use” clause in the Constitution reached a new low in the 2005 ruling in Kelo v. City of New London, which has become one of the most reviled decisions in U.S. Supreme Court history—and rightly so. In Kelo, the City of New London, Conn., decided to seize non-blighted homes and turn them over to another private party in the hope that the new owners would use the land in a way that could create jobs and pay higher taxes. The Supreme Court upheld the taking, ruling that even a mere promise of generating “public benefits,” whether those benefits are likely or not, justifies taking someone’s home and turning it over to another private party for that party’s private profit. Under Kelo, a city can measure its citizens’ worth in how much they pay in taxes, meaning that a family can be uprooted, cast aside, and its home destroyed if someone richer comes along who might pay more in taxes. And so, just as “public use” was blurred to mean “public purpose” in Berman, “public purpose” was further blurred into “public benefit” in Kelo. And with each of these steps adding legal imprecision to otherwise well-defined words, the fundamental right to own property, which was so important to the Framers and has been essential to our liberty and prosperity, was undermined.
The nationwide backlash against Kelo was swift and nearly unanimous.
The nationwide backlash against Kelo was swift and nearly unanimous. Public opinion polls consistently show that more than 80 percent of Americans disapprove of using eminent domain for private gain. As of 2013, 44 states have legislatively reformed their statutes to some degree to afford property owners greater protection against the wrongful seizure of their property through eminent domain. Three state supreme courts have squarely considered the Kelo question and unequivocally rejected the use of eminent domain for economic development. And many other courts across the country—including New Jersey courts—have begun enforcing meaningful limitations on the government’s ability to use eminent domain to seize private property. Unfortunately, state officials in New Jersey seem to be some of the last people to get the message. But with this litigation on Charlie’s behalf, that is about to change.