Kelo, Lingle and Eminent Domain: Sovereignty and Government

Please note that SCOTUSblog – Supreme Court of the US Blog – has just moved to its own domain at

The Supreme Court recently held oral arguments on two important eminent domain cases involving the taking of private property for public use: Kelo v. New London and Lingle v. Chevron, for which oral arguments were held on February 22.

Summaries of the two cases are found at Scotus Blog (Lingle) and Cornell Law School (Kelo).

As noted at FindLaw, the Kelo case involves the question:

“What protection does the Fifth Amendment’s public use requirement provide for individuals whose property is being condemned, not to eliminate slums or blight, but for the sole purpose of “economic development” that will perhaps increase tax revenues and improve the local economy? “

and the Lingle case involves the questions:

1. Whether the Just Compensation Clause authorizes a court to invalidate state economic legislation on its face and enjoin enforcement of the law on the basis that the legislation does not substantially advance a legitimate state interest, without regard to whether the challenged law diminishes the economic value or usefulness of any property.

2. Whether a court, in determining under the Just Compensation Clause whether state economic legislation substantially advances a legitimate state interest, should apply a deferential standard of review equivalent to that traditionally applied to economic legislation under the Due Process and Equal Protection Clauses, or may instead substitute its judgment for that of the legislature by determining de novo, by a preponderance of the evidence at trial, whether the legislation will be effective in achieving its goals. “

KipEsquire at A Stitch in Haste commented on these cases and struck a low blow at the Volokh Conspiracy in connection with this issue, while there was also an irrational “free property” statement at Bainbridge, [“If the Supreme Court sides with New London, we might just as well roll up the Bill of Rights, for we won’t need it any longer.”]. We felt compelled to Google the issue, which landed us at Crooked Timber and its many excellent comments that cover some of the hard issues involved in eminent domain.

SCOTUSblog and Slate report from the oral arguments that the Supreme Court will surely follow the traditional line in deciding these two eminent domain cases.

But of course, that seems quite clear from here. While still a student at Stanford Law School, the Law Pundit worked for the California Law Revision Commission on a revision of the California eminent domain statutes.

It was as clear then as it is clear now that private property rights are not absolute rights, not even in capitalist America. When push comes to shove, individual property rights can be circumscribed for the greater good of the community, whether this be for the building of a new road or by relocation of individuals because of community development or improvement, even if this benefits private interests. What government action does not benefit some private interest somewhere? After all, no one challenges the principle of community zoning rights. Individual property rights are simply not absolute. Indeed, the right to hold property is granted by the state and it can even be taken away by the state, under certain circumstances.

Eminent domain is an element of the sovereignty of governments. Government sovereignty is the entire basis for the power of eminent domain as anchored in the Fifth Amendment to the US Constitution.

Although no one denies that there are abuses of the power of eminent domain, an abuse of such a power does not make the exercise of eminent domain unconstitutional just because it involves the taking of private homes for private projects which communities find to be beneficial to the community. Governments have this power.

All the discussion that this kind of a taking is not the kind of “public” taking envisioned by the Constitution are just wagging their chins for nothing. It would be impossible for the highest court in the land to carve out any kind of an exception to the rule of eminent domain which would not result in absolute chaos in federal and state government in the long term. Is it an absolute “private” property right to be able to maintain a shanty in the middle of New York City among a skyline of skyscrapers, costing society perhaps millions of dollars to build around it? The answer is no.

By definition, a “legitimate” taking is a “public” taking and what a “public purpose” is, is decided by the government. This is a crucial element of government sovereignty. At least, that is the way we see it.

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