OPINION

Private Property and Public Use

Written by Gregg Guetschow
Published June 26, 2005

The reaction to the U. S. Supreme Court's decision in Kelo v. New London has generated a wide range of comments, here and elsewhere. It is not surprising, given that the case dealt with taking of private property, that some of these suggested consequences roughly equivalent to the end of the Western civilization as we know it. I suspect that few of those commenting have read the opinions in the case and so are ill-prepared to consider future applications of the case and possible remedies.

In brief, the case involves the implementation of a development plan prepared by the City of New London, Connecticut through which private property would be acquired to facilitate new private investment intended to create employment opportunties and increase tax base. Such a project is important to New London in that it is classified by the state as a distressed community and is in need of economic revitalization.

The development plan was opposed by several property owners whose properties would have been acquired through the land assembly process provided for in the development plan. After having failed in the state courts to obtain relief, the case found its way to the U. S. Supreme Court. The issue before the various courts was whether a taking of private property for the purpose of spurring economic development violated the Fifth Amendment to the Constitution which provides, in part, "...nor shall private property be taken for public use, without just compensation."

There is a series of Supreme Court decisions on the application of this Fifth Amendment provision to the states dating from the end of the nineteenth century. It is clear that private property may be taken for typical public uses such as roads or military bases and for private uses open to the public such as railroads. The case of economic development, however, involves those cases in which the court has held that a public purpose may be equivalent to a public use. Such a broad interpretation recognizes that societal needs change over time.

In Kelo, the Supreme Court determined that New London had acted within the scope of authority granted by the state and that an economic development project that involved the projected benefits described in the development plan constituted a public purpose and therefore a public use within the meanng of the Fifth Amendment. Four justices dissented, however, arguing, among other things, that extending the definition of public use to economic development projects fails to safeguard private property ownership adequately since there are many instances in which property might be converted to uses that offer greater tax benefits than the former uses.

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Private Property and Public Use
Published: June 26, 2005
Type: Opinion
Section: Politics
Filed Under: Politics: Law and Rights
Writer: Gregg Guetschow
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Comments

#1 — June 26, 2005 @ 16:03PM — Dexter

In 'Private Property and Public Use,' Mr. Gregg Guetschow has attempted a very lawyerly evasion of the basic questions in takings and ignores the extensiveness of the current mode of redefining words in exposition and the law. We cannot change the meaning of 'public use' to merely purpose or asserted need. To suggest such is quite laughable.
I have read the Court opinions and those of writers with knowledge of the laws and complications of takings -- it is not a matter of merely determinations being turned over to the Sates: personal property rights are a significant part of the Federal mandate and cannot be ignored at that level.
The mainspring here is that social needs in fact do not change over time, they eternally remain the same in fact no matter what intervention is pursued. Real social needs involve many aspects of the human condition rather unlike the views taken by many with some agenda that ignores the individual.
Should we choose to allow a loose interpretation of public use we can very easily be traduced into thinking we can propose for someone else precisely what 'just compensation' happens to be, especially if it is to be done with public money. This is not a slippery slope. It is an abyss. The dissenting justices were more than clear that such an interpretation abandons the protection the Fifth Amendment provided when the law is obeyed, just as we saw for many years what the consequences of ignoring the protections of the Second Amendment. I see no comfort in the idea that the individual states will deal with the issues appropriately in the face of the Constitution; no state has the right or authority to contravene the rights recognized by the Constitution. But they do as often as they can. It is not a policy debate but a clear effort wrt the power of the state, local or Federal as opposed to the citizenry.
I personally take no comfort in the idea that over time these things sort themselves out as suggested in the examples of court reversals. In as much as the damages of such wrong thinking is protracted and never made up for, it is an academic view that minimizes the very nature of the error. As in the English courts, we can see litigations before the court can last as long as what was once a lifetime and even more, creating untold suffering until the collapse of the illusions or the exhaustion of the wealth that can be drawn out of it that precipitated it all. We have seen two world wars fought for the same basic question. It is at the very heart of world terrorism today.

The confusion in the writers mind is evident in this statement: "Large economic development projects involving the taking of public property are complicated proceedings."
Clearly what was inadvertently revealed by the slip of public for private shows the thinking on to whom the property rightly belongs here. Public property is a construction of the state, make no mistake about it, the fiction resides there, not in the manner of private property ownership. We are the public and can be barred from all things 'belonging' to the state. That is what is at issue. That has been clear since the time when a person could be declared property. After all, taxes and fees are takings.
What followed that remark is yet another shade of critical thinking that is most amusing, in that indeed it is public money that is used to do these takings so that one is forced to pay for what may well be call the theft in the first place. One might like to think then what the "frequently generous relocation benefits must be paid to affected property owners" is supposed to mean. According to whom? By what measure? Whose generosity? That does not give much assurance that the legal process can or will of course sort it all out, but that is what we are seeing in this recent court decision aren't we? According to the Law.
"Throughout all of this process, there are opportunities to influence the policy process to limit the capacity for government to take property for illegitimate purposes."
The idea of the greatest good for the greatest number does not itself legitimate any purpose. It is not a founding policy of our country especially as contrary to the rights of life, liberty and the pursuit of happiness and the ownership of private property.
This article simply begs the question. What we have is an attempt to circumvent the basic rights and assurances of private property ownership for a displaced rule of law: Person A and person B cannot form a contract that obligates person C.
By the hidden logic of this exposition The Supreme Court has now established that the property rights protections of the Constitution are null and void; government can now take property for private use. It has subverted the rights of the individual to the advantage of the states and potentially to central government.

It is as simple as that. We have arrived at a place where, if 'government' so decides, it can declare itself Socialist and the people can whistle in the dark. In this way the lawmakers and the courts have declared themselves above the Law. This is the raw puke of Legalism.
GB(and save)A.

#2 — June 26, 2005 @ 19:27PM — Nancy

Well, that's very nice of the Michigan Supremes to reverse themselves; but in the meantime, what happened to the thouands of people whose homes were trashed to make way for a private factory, regardless of how many people it would employ? Why couldn't the factory build on sites less controversial, out of town? Or did they just take it because they could? Additionally, there is the fact that the party doing the taking is also the one setting the property value to be reimbursed. Something about that stinks. It is not unknown for governmental entities to evaluate & tax properties they have an eye on, at a lower than fair market value, so that when they finally move in, they're paying way below what they should. Immoral? Unethical? You bet, but it's legal. Finally, there is the fact that in today's markets, even in depressed areas, replacement value for finding homes that are also sustainably affordable for those displaced (in terms of property taxes, utilities, city or county income tax rates, distance from workplaces, etc.) are nowhere near what the taking government is paying for property being confiscated, which does not even begin to help those displaced homeowners move to a new home, let alone buy one. There are also the matters of sentimental value, family traditions, familial & neighborhood ties, and all the human baggage that goes with it. These properties are about more than just the land value. Some of these homes have been in the families for 3-4 generations. It is noticeable that condemning governments never move in on the properties of the rich, which presumably are in even better surroundings accessible to more & better resources and therefore better locations to develop, if what these governments are seeking is attractive physical surroundings and convenience. Funny how that works, isn't it?

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