Brent Nicholson & Sue Ann Mota, From Public Use to Public Purpose: The Supreme Court Stretches the Takings Clause in Kelo v. City of New London, 41 Gonz. L. Rev. 81 (2005).[PDF] [Westlaw] [LexisNexis]
The genius of our Constitution lies in the intricacy of its balance – a balance that is rough but fragile, constant yet evolutionary. The Constitution balances state and national government; majoritarianism and minority rights; freedom and restraint; and the legislative, judicial, and executive branches.
This article examines one of the many Constitutional balances – the balance between private property and the public good. More specifically, the article examines the U.S. Supreme Court decision in Kelo v. City of New London, and the resulting tension between the government’s power of eminent domain and the private property owner’s right to maintain his property against governmental appropriation. While the Fifth Amendment clearly gives federal, state, and local governments the authority to take private property without consent, it also contains a balance wheel that requires the taking be for a public use and the property owners be given fair payment for their property. In Kelo, the Court focused on whether the public use requirement was satisfied when the City of New London, Connecticut took Mrs. Kelo’s and others’ property pursuant to a community economic development plan. The Court decided in favor of New London in a five to four decision…. Read More