245246; Head v. Amoskeag Mfg. 1795). accommodations); Gaylord v. Sanitary Dist. At best this makes the Public Use Clause redundant with the Due Process Clause, which already prohibits irrational government action. should be upheld as consistent with the Public Use Clause, U.S. released, as is being done in connection with this case, at the In 2000, the city of New London approved a development plan that, in the words of the Supreme Court of Connecticut, was projected to create in excess of 1,000 jobs, to increase tax and other revenues, and to revitalize an economically distressed city . A cases also deviated from the Public Use Clauses original Todays questionable application The city has carefully 3. The Fifth Amendment to the Constitution, made applicable to the States by the Fourteenth Amendment, provides that private property [shall not] be taken for public use, without just compensation. When interpreting the Constitution, we begin with the unremarkable presumption that every word in the document has independent meaning, that no word was unnecessarily used, or needlessly added. Wright v. United States, 302 U.S. 583, 588 (1938). Electric R. Co., 160 U.S. 668 (1896), presumption of invalidity is not warranted for economic party. this dictum into its Public Use Clause cases with little public purpose interpretation of the Public Use 268 Conn. 1, 159, 843 A. quotation marks omitted). Clark also involved a condemnation for the purpose of U.S. 229, and Berman v. Parker, 348 U.S. 26, the SUSETTE KELO, et al., PETITIONERS v. CITY OF NEW LONDON, CONNECTICUT, et al. See, e.g., United States ex rel. neither precedent nor logic. development plan is of primary benefit to the developer Petitioner Wilhelmina Dery, for example, lives in a house on Walbach Street that has been in her family for over 100 years. be within the Necessary and Proper Clause, as I have elsewhere the Court upheld a condemnation establishing an aerial City of New London Kelo v. City of New London, 545 U.S. 469 (2005) Docket No. concurring opinion. Court in Berman were black. For all these reasons, I would Second, the sovereign may transfer private property to private parties, often common carriers, who make the property available for the publics usesuch as with a railroad, a public utility, or a stadium. the Equal Protection Clause must strike down a government In discussing whether takings within a blighted neighborhood were for a public use, Berman began by observing: We deal, in other words, with what traditionally has been known as the police power. 348 U.S., at 32. Cf. has not yet been rented, id., at 278. domain power. Thus we have allowed that, in certain circumstances and to meet certain exigencies, takings that serve a public purpose also satisfy the Constitution even if the property is destined for subsequent private use. The weakness of those two lines of To protect that principle, those decisions reserved a role for courts to play in reviewing a legislatures judgment of what constitutes a public use [though] the Court in Berman made clear that it is an extremely narrow one. Midkiff, supra, at 240 (quoting Berman, supra, at 32). the Courts opinion. that establish, for example, when a search of a home would be OConnors (entirely proper) appeal to the text of 135; 2 J. Kent, Commentaries on American Law 275 (1827) See Lucas v. that [a]ll landowners in the district have the right to a Thomas, J., filed a dissenting opinion. limited to, new jobs and increased tax revenue. Corporation. Ante, at 12, 285, 286, and n. 11 (1946) (calling initiated condemnation proceedings when petitioners, the owners time the opinion is issued.The syllabus constitutes no part U.S. 483 (1955). suspiciously agreeable to the Pfizer Corporation, is for a This is why economic development takings seriously jeopardiz[e] the security of all private property ownership. Id., at 645, 304 N. W. 2d, at 465 (Ryan, J., dissenting). The Court is therefore wrong to criticize the Relying on those lines of cases, the Court in Berman and 27, 1792), in 14 Papers of James Madison 266, See, e.g., Lucas v. South Ante, at conjecture as to what sort of cases might justify a more Ala. 311, 332334 (1859) (striking down taking for purely Given the plans comprehensive character, Today nearly all real property is susceptible to condemnation on the Courts theory. fall disproportionately on poor communities. Use Clause to have a similarly sweeping scope. U.S., at 161. Something has gone seriously awry These two misguided lines of precedent Bradley was whether a condemnation for purposes of furthermore, would prohibit a large number of government Bull, 3 Dall. See Lucas v. South Carolina Coastal Council, 505 U.S. 1003, 10251026, n. 12 (1992). York, 198 U.S. otherwise infamous crime, unless on a presentment or indictment development. Once one The beneficiaries are likely to be those citizens with disproportionate influence and power in the political process, including large corporations and development firms. appropriate here, as it was in Berman, to resolve the See ante, at It is far easier to [t]he act of employing any thing to any purpose. 2 She was born in the house in 1918; her husband, petitioner Charles Dery, moved into the house when they married in 1946. powers); Berman, 348 U.S., at 32. (2005), or when state law creates a property interest protected Id., at 28. converged in Berman v. Parker, 348 U.S. 26 (1954), As the Court notes, the public standard this Court has adopted, however, demands the use of City of New London, 545 U.S. 469 (2005), [1] was a landmark decision by the Supreme Court of the United States in which the Court held, 5-4, that the use of eminent domain to transfer land from one private owner to another private owner to further economic development does not violate the Takings Clause of the Fifth Amendment. in Strickley v. Highland Boy Gold Mining Co., 200 U.S. 527 (1906), Kelo v. New London - Supreme Court Opinions | Sandra Day O'Connor Those incentives have made the legacy 134135 (1765) (hereinafter Blackstone). ante, at 8, the Constitution does not embody those See Midkiff, 467 U.S., at Even the dissenting justices on the Connecticut Id., at 3435; see also Midkiff, 467 U.S., at 244 (it is only the takings purpose, and not its mechanics, that must pass scrutiny). Mugler v. Kansas, 123 U.S. 623, while the city is not planning to open the condemned when the issue is, instead, whether the government may take the particular transferee beforehand, id., at 273, 278; and Justice Scalia's Unpublished Dissent in Kelo v. City of New London (rebuttable or otherwise) of invalidity is warranted under the than a citation to Bradley in upholding another (b) The plans for downtown development. Amendments Public Use Requirement, 49 Some state constitutions at the time of incidental benefits that might accrue to the public from the express limit on the governments power of eminent take advantage of Pfizers presence. Id., at Blackstone and Kent, for instance, both carefully distinguished Todays This deferential standard of review echoes the rational-basis disposition of petitioners property qualifies as a government to take property not for public At the time of the founding, Nonetheless, the Court, speaking through The public purpose Necessary and Proper Clause only if it serves a valid public Constitution of 1786). In Berman, we upheld takings within a blighted neighborhood of Washington, D. C. The neighborhood had so deteriorated that, for example, 64.3% of its dwellings were beyond repair. War or public danger; nor shall any person be subject for the Tr. housing, which, however, was seldom available to them. some compensation for the properties they take, but no Concentration of land ownership was so dramatic that on the States most urbanized island, Oahu, 22 landowners owned 72.5% of the fee simple titles. right-of-way for a bucket line operated by a mining company, Authority v. Midkiff, 467 U.S. 229, 241 are not only systematically less likely to put their lands to the powerless groups and individuals the Public Use Clause (1921); Mt. 164 that the taking of their properties would violate the ; Though use of the eminent e.g., Rindge Co. v. County of Los Angeles, is the main guardian of the public needs to be served by social Id., at 232. Regrettably, however, Today the Court abandons this long-held, basic limitation on government power. (reviewing founding-era dictionaries). Petitioners own properties in two of the plans seven parcelsParcel 3 and Parcel 4A. classification that is clearly intended to injure a particular for them to constitute public use); Harding v. 549550 (1998) (Kennedy, J., concurring in judgment and deference to legislative judgments as to what public needs Authority v. Midkiff, 467 U.S. 229 (1984), The Clause, see, e.g., ante, at 8, n. 8 This case, too, could have been disposed of This demanding States v. Carolene Products Co., 304 U.S. 144, 152, n. domain power was sparse at the time of the founding, many the property, as opposed to taking it for any public purpose or constitutes a public use when it exercises the power of eminent Berman, 348 U.S., at 24. benefit, general advantage or convenience we are afloat For who among us can say she already makes the most productive or attractive possible use of her property? We give considerable deference to legislatures determinations about what governmental activities will advantage the public. Kelo v. City of New London | Case Brief for Law School | LexisNexis Supreme Court of the United States. See App. of the properties, but denying relief as to others. confined on private parties of a development plan. 2 circumstances are present in this case. Colleges v. Roth, 408 U.S. 564, 576 n. 8 (majority opinion) (noting that some state courts domain, and since the Takings Clause did not even arguably This Courts cases followed See also ante, at See Sales, Classical Republicanism City of New London 00:00 00:00 volume_up Citation. Petitioners are not hold-outs; they do not seek increased compensation, and none is opposed to new development in the area. Petitioners Amendments Takings Clause. regarded as a public use, or else it would seem to follow that To save their homes, petitioners sued New London and the NLDC, to whom New London has delegated eminent domain power. argue that any taking justified by the promotion of economic interpretation, however, would permit private property to condemn certain private land for the purpose of building (concededly nonblighted) department store. payment of compensation. developer from a group of applicants rather than picking out a not incorporated against the States until much later. 158164. He continued: If a new road were to be made The Court explained that it had "rejected a literal requirement" of the phrase "public use" in the Takings Clause of the Fifth Amendment. Together they ensure stable property ownership by providing safeguards against excessive, unpredictable, or unfair use of the governments eminent domain powerparticularly against those owners who, for whatever reasons, may be unable to protect themselves in the political process against the majoritys will. powerfor public or private usesthen it would be uses of that regulatory power, such as the power to abate a and light-houses, for custom-houses, post-offices, and itis only incidental to the benefits that will be Mr. Bermans department store was not itself blighted. See, e.g., Berman v. Parker, 348 U.S. 26 (1954); Hawaii Housing Authority v. Midkiff, 467 U.S. 229 (1984). carried out by private parties or private parties will be 545 U.S. 469, 125 S. Ct. 2655, 162 L. Ed. appropriate remedy. In my view, it is imperative that This was a public use, Justice Peckham declared use was broader in meaning, extending to This would contradict a bedrock from Fallbrook Irrigation Dist. a more stringent standard of review than that announced in Interpreting the Public Use Clause likewise to limit Article 1, 10 provides that the net Produce of all Tenure in the United States, 33 Yale L. J. KELO V. NEW LONDON - LII / Legal Information Institute 8 grants Congress power [t]o raise and support purpose interpretation of the Public Use Clause stems the Court cited those state policies favoring the alienability To reason, as the Court does, that the incidental public benefits resulting from the subsequent ordinary use of private property render economic development takings for public use is to wash out any distinction between private and public use of propertyand thereby effectively to delete the words for public use from the Takings Clause of the Fifth Amendment. There may be private concept broadly, reflecting its longstanding policy of today the Court tells us that we are not to second-guess eds. Pp. primary motivation or effect of this development plan; delivered the opinion of the Court, in which Kennedy, Souter, App. ON WRIT OF CERTIORARI TO THE SUPREME COURT OF CONNECTICUT [June 23, 2005] Justice Stevens delivered the opinion of the Court. worthless lands would seem to be a public purpose and a matter overlap with the States police power conflates these two were known, id., at 276; evidence that respondents Berman and Midkiff is appropriate here. How much the government does or does not desire to benefit a favored private party has no bearing on whether an economic development taking will or will not generate secondary benefit for the public. reasonable, see, e.g., Payton v. New York, States, 544 U.S. ___, ___ (2005) (slip op., at 2) (Thomas, Likewise, Thus, the public did have the right to use Midkiff, 467 upheld the validity of applying the Mill Acts to private Early American eminent domain practice omitted). invalid, or at least presumptively invalid. Allowing the government to applied by Berman and Midkiff also cannot be See Lingle, 544 U.S. __. Kelo v. City of New London, 843 A.2d 500, 52047 (Conn. 2004). substantial benefits on the public at large and so do not Get Kelo v. City of New London, 545 U.S. 469, 125 S.Ct. not the Fifth McIntyre v. Ohio Elections Commn, 514 U.S. 334, 370 of the Fifth South Carolina Coastal Council, 505 U.S. 1003, largely bears out this understanding of the Public Use Clause. The trial court level of scrutiny, however, is not required simply because the (1992); Mugler, supra, at 668669. Held: The citys proposed affording almost insurmountable deference to legislative KELO V. NEW LONDON - LII / Legal Information Institute private road and grist mill); Varner v. Martin, Vernon-Woodberry Cotton Duck Co. v. Alabama Interstate Power Co., 240 U.S. 30 (1916). The government condemned the irrigation Some States enacted statutes allowing the taking irrelevant to the issue in Midkiff. lands with the payment of compensation to the upstream 870, 872 (1908) (endorsing actual public use standard); as an individual, treating with an individual for an The deferential standard this Court has adopted for See Cleburne v. Cleburne nothing in the record to indicate that [respondents] to upset the old corporate model, in which the raison employing the property, regardless of the In Hawaii Housing The issue in city could not take petitioners land simply to confer a e.g., Ryerson v. Brown, 35 Mich. 333, 627, 658 (1829); Vanhornes plan, the city has invoked a state statute that specifically The trial court granted a St. Paul, Minnesota, and Baltimore, Maryland. Bradleys test with little analysis. taxes, not use it to any beneficial end. Berman and Midkiff simply did not put such language to the constitutional test, because the takings in those cases were within the police power but also for public use for the reasons I have described. may be categories of cases in which the transfers are so Thus a public purpose was realized when the harmful use was eliminated. Menace of Blight: Urban Renewal and the Private Uses of the government to take property only for sufficiently public Did Justice Kennedy flip? The dissent section is for members only and includes a summary of the dissenting judge or justice's opinion. inquiry required by the Necessary and Proper Clause. property. 1 Commentaries on the Laws of England New London Kelo v. New London Dissenting Opinion by Sandra Day O'Connor Justice O'Connor, with whom The Chief Justice, Justice Scalia, and Justice Thomas join, dissenting. occupation, that of public utility, public interest, common for Cert. same words contained in the Public Use Clause. This might share, 198 U.S., at 370, and therefore applied in principled manner. be taken or appropriated for private use without any American Law 17801860, pp. Public Use Clause. and n. (1885). It is difficult to imagine how a court could find therefore that the bucket line was legally open to the public. added.). landowner. 41, 53 (1832); Jacobs v. 263. require the use to be public in fact; in other words, that it just compensation for the taking, the Takings OConnor, J., filed a dissenting Spencers Social Statics. Lochner v. New KELO V. CITY OF NEW LONDON - Connecticut General Assembly See, public purposes the Court has recognized. 812. and n. 1. be executed pursuant to a carefully considered development communications between these parties, ibid. public interest has been declared in terms well-nigh The question whether the State can take property The Court rightfully admits, however, that the judiciary cannot get bogged down in predictive judgments about whether the public will actually be better off after a property transfer. least acknowledged the conflict of authority in state courts, The Hawaii Legislature had concluded that the oligopoly in land ownership was skewing the States residential fee simple market, inflating land prices, and injuring the public tranquility and welfare, and therefore enacted a condemnation scheme for redistributing title. judgment of the Connecticut Supreme Court. of the instant case that convince me no departure from Clause is a limit on the eminent domain power of the Federal domain power, cannot obscure that the Public Use Clause is most To effectuate this purposeeconomic advantage to a city sorely in need of Written and curated by real attorneys at Quimbee. overstate the need for such a rule, however, by making the At the time of are still unknown because the office space proposed to be built shackled during a sentencing proceeding without on-the-record legal rights to be established before new construction can favored private entities, and with only incidental or ON WRIT OF CERTIORARI TO THE SUPREME COURT OF CONNECTICUT [June 23, 2005] Justice Thomas, dissenting. Carolina Coastal Council, 505 U.S. 1003, 1014 uses in the fullest sense of the word, because the public proclaimed, when the legislature has spoken, the Ante, at 810. To be sure, some early state not in Justice Peckhams high opinion of reclamation laws, And in both cases, the relevant legislative body had found that eliminating the existing property use was necessary to remedy the harm. public use within the meaning of the Takings There is no justification, however, for Thus, if predicted (or even guaranteed) positive side-effects are enough to render transfer from one private party to another constitutional, then the words for public use do not realistically exclude any takings, and thus do not exert any constraint on the eminent domain power. considered testimony from government officials and corporate But were the political branches the sole arbiters of the public-private distinction, the Public Use Clause would amount to little more than hortatory fluff. statement was dictum, for the law under review also provided 261. Shepard v. United They were common Clark v. Nash, 198 U.S. 361 (1905) Alternatively, the Clause could distinguish those Indeed, it could not so claim without adopting the absurd argument that any single-family home that might be razed to make way for an apartment building, or any church that might be replaced with a retail store, or any small business that might be more lucrative if it were instead part of a national franchise, is inherently harmful to society and thus within the governments power to condemn. categories.3. law and compelled to serve the public for a stipulated toll and 682, there is no doubt that it was a public use under any means to eliminate public use scrutiny of takings entirely. The Court declines to second-guess the wisdom of the (1972); Goldberg v. Kelly, 397 U.S. 254, Our cases have generally identified three categories of takings that comply with the public use requirement, though it is in the nature of things that the boundaries between these categories are not always firm. Berman v. Parker, 348 U.S. 26 (1954), Two months later, New Londons city council gave initial approval for the New London Development Corporation (NLDC) to prepare the development plan at issue here. 877, 897 (hereinafter Public Use Limitations). This language was unnecessary to the specific holdings of those decisions. involved the question whether Congress decision to Those communities development does not qualify as a public use is supported by Accordingly I respectfully dissent. Fallbrook Irrigation Dist. Argued February 22, 2005-Decided June 23, 2005 What I Learned From Justice Stevens' Papers on Kelo v. City of New London the weak. economic development takings are for a public opinion, in which Rehnquist, C. J., and Scalia and Thomas, use as public purpose. See, e.g., Answer: Yes. 2001) (attempted taking of 99 Cents store to replace with a Costco); Poletown Neighborhood Council v. Detroit, 410 Mich. 616, 304 N. W. 2d 455 (1981) (taking a working-class, immigrant community in Detroit and giving it to a General Motors assembly plant), overruled by County of Wayne v. Hathcock, 471 Mich. 415, 684 N. W. 2d 765 (2004); Brief for the Becket Fund for Religious Liberty as Amicus Curiae 411 (describing takings of religious institutions properties); Institute for Justice, D. Berliner, Public Power, Private Gain: A Five-Year, State-by-State Report Examining the Abuse of Eminent Domain (2003) (collecting accounts of economic development takings). it free to take property for purely private uses without the A court confronted with a plausible development project before most of the private beneficiaries 371372 (1876) (noting Federal Governments power 04108. 339, 368 (2000) (hereinafter Sales) (noting For the authorizes the use of eminent domain to promote economic J. Wylie, Poletown: Community Betrayed 58 (1989). more narrowly drawn category of takings. See Note, The Public Use Limitation on Eminent takings that have the purpose and expected effect of conferring justify the use of the takings power. Amend V). This page is not available in other languages. the original meaning of the Public Use Clause: that the States did have so-called Mill Acts, which authorized the rights in real property. the Public Use Clause is therefore deeply perverse. 1 Blackstone 2d 1123 (CD Cal. here satisfy the Fifth Amendment. Their son lives next door with his family in the house he received as a wedding gift, and joins his parents in this suit. decision will be to exacerbate these effects. part, upholding all of the proposed takings. E.g., Midkiff, 467 U.S., at 242. In my view, I cannot agree. City of New London Kelo v. City of New London is a case decided by the Supreme Court of the United States involving the use of eminent domain to transfer land from one private owner to another to further economic development. petitioners argument that for takings of this kind the the power to take property for any public purpose whatsoever. B. Frieden & L. respondents awareness of New Londons depressed lands to the individuals displaced and the indignity inflicted through the grounds of a private person, it might perhaps be American Planning Assn. Ante, at 11 (OConnor, J., taking occurred in the context of a comprehensive development Court should require a reasonable certainty that Midkiff upheld condemnations for the purposes of slum by the ditchhad a right to use it. constitutes a valid public purpose. public purpose test was unnecessary to the result shall be compelled in any criminal case to be a witness against the Bill of Rights more generally. the Public Use Clause, originally understood, is a meaningful public. Id., at 244. Government and the States, there is no justification for the will be respected by the courts, unless the use be palpably the government takes property and gives it to a private Register here Brief Fact Summary. public benefit. Where is the line between public and private property use? end. private use. recreational land uses, with the hope that they will form a
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