Constitutional Law: Eminent Domain - Essay Example

?Constitutional Law: Eminent Domain Introduction In relation to property rights and responsibilities, constitutional crisis at times crops up. In this paper, it is proposed to examine State‘s power of eminent domain in the light of the recent decision of the U.S. Supreme Court which overlooked the circumvention of prohibition of taking of private property in a State action. Fifth amendment The U.S. constitution has no specific provisions for private property rights though it protects them. The Fifth Amendment prohibits taking away of private property for public purposes without just compensation. Earlier it was the stand of the U.S. Supreme Court that the right to own property was “primary object of the social compact” and “one of the natural, inherent, and unalienable rights of man”. The underlying concepts to these rights are exclusivity and alienability. Exclusivity refers to the right of the property owners to make choices about the usage of their property in a reasonable manner and alienability is their right to sell their or otherwise dispose of their property. These rights are subject to certain obligations such as payment of taxes and restricted use of their property with a view to protect the rights of others. As already mentioned, the right to property is subject to the power of the government to take the property for public use. This is called the power of eminent domain. This is also referred to as “condemnation” or “taking” to signify taking away of something from a landowner which he/she cannot refuse. Though the U.S. constitution has no provision for eminent domain power, its invoking by any government has never been seriously resisted. Constitution’s silence about the eminent domain does not mean that the government has no power but rather it signifies the implied existence of that power. The constitutional limits to exercise this power have however been the subject of interpretation by the courts and debate. Courts have always supported the legislatures taking the private property for public good. In 2005, the U.S. Supreme Court held in Kelo v City of New London that it was constitutionally valid for invoking the power of eminent domain in order to facilitate a private party to acquire land for the economic redevelopment of the area. The court held that rigid formulas and intrusive scrutiny could not come in the way of legislature’s ultimate goal of the taking of property for public good. It also clarified that legislatures have the discretionary power to broadly or narrowly use the power of eminent domain. Thus, the respective State governments are authorized to invoke the power for the purposes of roads, public buildings, schools, parks, utility lines, and environmental protection. (Scott) As part of the exercising the power of eminent domain, the Government or its authorized body has to contact the property owner for a negotiated settlement. If no agreement could be reached with the owner, the authority of the Government can apply to court for the condemnation action. The authority should deposit the full amount of compensation in court. The owner can withdraw that amount and can still demand more compensation (Szypszak) and (Kelo v City of New London). The government’s power of restriction on the use of private property on the grounds of public health and safety need not be compensated as it is a policing power. But overly aggressive restrictions can amount to regulatory taking as was held in the well known case Pennsylvania Coal Co v Mahon (1922). If police power is extended too far, it would be the end of private property and hence the owner is entitled for compensation if the restriction goes beyond reasonable limits or ‘too far’ in the words of the court. Courts are burdened with the responsibility of determining when restrictions or regulations “go too far”. In subsequent decisions a frame work has developed to distinguish between what requires compensation and what does not require. As such, prohibiting construction of an office building over Grand Central Station for reasons of historical preservation would not amount to a taking as held in Penn Central Transportation Co. v. New York City (1978) since the regulation is for promotion of general welfare besides the beneficial use of the landmark site to the owner. The Court subsequently stated that the economic impact of the regulations on the land in terms of return on investment would also be taken into consideration for the taking. Thus in 1987, it was held in First English Evangelical Lutheran Church of Glendale v County of Los Angeles (1987) that prohibition of construction in a flood protection area amounted to a taking since it denied the land owner wholesome use of his property which the Constitution entitles him compensation. Same view was taken 1992 in the case of Lucas v South Carolina Coastal Council (1992). In the light of the above decisions against too much imposition of restriction on private property, decision in Kelo would seem outrageous in that a private property is taken to be given to another private entity for the purpose of economic development of the region. It is argued that Kelo’s decision is driven by faulty jurisprudence. The Court was concerned with the social benefits of property taking. Such a utilitarian approach cannot have a place in Supreme Court decisions where the judges are constrained by the law and Constitution. Elected representatives are excused for taking a utilitarian approach but not the judges who would be tilting the delicate balance by such decisions. The judges are required to read the text of the constitution literally and in case of uncertainty still, they must consult the original drafters and the primary documents. When constitution is faulty, it is the job of the legislators to correct it. The judges can only interpret what the constitution says and cannot amend it. It is argued that Kelo has departed from the original meaning of the Constitution. It is not consistent with the original meaning of the Constitution. In each and every case, the Court should read the Constitution without allowing the previous decisions or precedents to cloud the vision of constitution. It is argued that Constitution is preferable to precedents as they stand on shaky ground. Since the judges are not free from error or bias, there can be a wrong decision based on incorrect reading of the constitution. (Scott). As there is clear association between economic prosperity and property rights, many States have restricted the Kelo-type takings. It is because property rights are essential for the creation of wealth. Unless the property rights are secure, no investors will have the confidence. Only if one owns the property, one will keep improving the property. States which did not implement Kelo-type restrictions are Delaware, Colorado, Alaska, Virginia and Minnesota. Those who did not restrict are Connecticut, Massachusetts, New York, New Jersey, and California. Homeownership rates increased in the Sates which passed restrictions on Kelo type of takings. In other States, the homeownership rates decreased. (Scott). However, Kelo decision is a powerful tool for the State governments to redevelop the inner cities and brownfield areas where land owners are likely to resist redevelopment. It will also pave way for mega-stores like Wal-Mart to move into these areas with the promise of tax base and increased jobs. The decision has set off the debate whether economic development is a public use. Massachusetts was of the view that eminent domain could be invoked in the areas that are substandard, decadent and blighted open area. The Kelo decision has left the homeowners in a state of uncertainty as state courts and legislators are unable to find the correct meaning of public use (Rutkow). Conclusion The fifth amendment was only to prevent land takings for public use without a just compensation. But the Kelo decision has made a marked departure to allow private property to be taken over by another private player for the purpose of economic development of the area where the property is situated. Whether economic development is a public use has still not been answered. Hence, unless the fifth amendment is amended or properly substituted by another amendment by the Federal legislature, the Kelo controversy will continue to rage indefinitely. It would be worthwhile to be aware that the purpose, for which Kelo was dismissed, has still not been served in the area in question without any economic development or redevelopment envisaged. Such politically motivated judicial decisions are best left the legislators to enact law rather than expecting the judiciary to support their decisions through precedents or stare decisis. Works cited First English Evangelical Lutheran Church of Glendale v County of Los Angeles . 1987. Kelo v City of New London. No. 545 U.S. 469 (2005. U.S.Supreme Court. 2005. Lucas v South Carolina Coastal Council . 1992.in Szypszak, Charless. Understanding Law for Public Administration. Sudbury, MA: Jones & Bartlett Learning, 2011. Penn Central Transportation Co v New York City. No. 438 U.S. 104. U.S.Supreme Court . 1978 in Szypszak, Charless. Understanding Law for Public Administration. Sudbury, MA: Jones & Bartlett Learning, 2011. Pennsylvania Coal Co v Mahon . No. 260 U.S. 393. U.S.Supreme Court. 1922.in Szypszak, Charless. Understanding Law for Public Administration. Sudbury, MA: Jones & Bartlett Learning, 2011. Rutkow, Eric. "Kelo v City of New London." Harvard Environmntal Law Review 30 (2006): 262-279. Scott, Kyle. The price of politics: lessons from Kelo v City of New London. Lanham, Maryland : Roawman & Littlefield, 2010. Szypszak, Charless. Understanding Law for Public Administration. Sudbury, MA: Jones & Bartlett Learning, 2011. . Read More