A Few Thoughts on the Takings Clause and Kelo v. New London

July 4, 2009

The Takings Clause of the Fifth Amendment to the United States Constitution restricts the government use of the power of eminent domain by requiring just compensation for the taking of private property for public use.

[T]he Takings Clause places conditions on the government if it wishes to exercise its eminent domain power. The first requires the taking be for a “public use.” What constitutes a public use, however, has undergone numerous modifications. These changes have made it difficult to grasp takings jurisprudence. It is agreed that a government may not take property from A and give it to B for a purely private purpose. However, agreement among scholars and courts seems to stop at this point. The continuing debate focuses on when a state should be allowed to take property through eminent domain for a private party by deeming that private party’s use a public use. 40 Conn. L. Rev. 1623, 1631

The recent Supreme Court case of Kelo v. New London dealt directly with this issue, and has been famously criticized by many in the media. However, the aftermath of Kelo has not seen the particularly devastating consequences that have been imagined.

One important lesson of Kelo and the firestorm of public outrage that it sparked is that constitutional protection is by no means the only protection that private property owners have against unbridled and/or overreaching legislative takings. The political process has a large and important role to play in determining whether takings go forward. For instance, in the aftermath of Kelo, where the public outcry was immediate and vocal, the response of the state legislatures in introducing (and even enacting) legislation that would limit the impact of Kelo in state condemnation actions was swift and severe. 35 B.C. Envtl. Aff. L. Rev. 45

Indeed, some state courts have been openly hostile to Kelo:

In reviewing an appropriation similar to that at issue here, a sharply divided United States Supreme Court recently upheld the taking over a federal Fifth Amendment challenge mounted by individual property owners. Although it determined that the federal constitution did not prohibit the takings, the court acknowledged that property owners might find redress in the states’ courts and legislatures, which remain free to restrict such takings pursuant to state laws and constitutions. In response to that invitation in Kelo, Ohio’s General Assembly unanimously enacted 2005 Am.Sub. S.B. No. 167.

The legislature expressly noted in the Act its belief that as a result of Kelo, “the interpretation and use of the state’s eminent domain law could be expanded to allow the taking of private property that is not within a blighted area, ultimately resulting in ownership of that property being vested in another private person in violation of Sections 1 and 19 of Article I, Ohio Constitution.” Section 4(A), 2005 Am.Sub.S.B. No. 167. The Act created a task force to study the use and application of eminent domain in Ohio, and imposes “a moratorium on any takings of this nature by any public body until further legislative remedies may be considered.” City of Norwood v. Horney, 110 Ohio St. 3d 353, 355

Interesting subject.  Tomorrow I will dedicate a post to a discussion of eminent domain law in New York. Happy Fourth of July, everyone!

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