Carolina Beat

The Impact of Kelo v. New London

How the Supreme Court decision could change the course of America

Jun. 24th, 2005
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Kelo v. New London, a recently decided U.S. Supreme Court case, affirmed that the seizure of private property by the government in the name of economic development is consistent with the “Public Use Clause” of the Fifth Amendment. The “Public Use Clause” states that “No person shall . . . be deprived of life, liberty, or property without due process, of law; nor shall private property be taken for public use, without just compensation.” By acting under this Court-sanctioned justification, we are destroying the foundation, not only on which the Constitution was founded, but on which our success as a nation is built.

It was the opinion of the Court that the city of New London had the right to take, with just compensation, the property of local homeowners who refused to give up their land to an economic development plan outlined by a private development corporation commissioned by the city. The opinion of the Court, written by Justice Stevens, mistakenly confuses the term “public use” with the broader term, “public purpose.” This, in effect, changes the scope and meaning of the “Public Use Clause.”

Justice Thomas, in a dissenting opinion, clarified how the Court had shifted the meaning of “public use” to “public purpose”, and stressed the move’s effect on the nation. According to Thomas, the context in which “public use” appears in the Constitution suggests that a portion of the “Public Use Clause,” “authorizes the taking of property only if the public has a right to employ it, not if the public realizes any conceivable benefit from the taking.”

The distinction that Thomas draws is a crucial one. “Using” land implies that one employs the land directly. “Public purpose” carries a broader meaning, unintended by the Constitution. “Purpose” means to employ towards an end, regardless of whether you are directly utilizing the land. By adopting the broader definition of the “Public Use Clause,” which substitutes “public purpose” for “public use”, all private property can legitimately be seized for the welfare and benefit of society, as long as there is a potential for public benefit (i.e., it fulfills a conceivable public purpose).

Without the guarantee of the law that private property will remain in the hands of the owner, the Constitution and our nation is bankrupt. To see why, we can look to the thoughts of the political philosopher John Locke. Locke, whose ideas influenced the creation of the Constitution, stated that the chief purpose of a government was to preserve property. By consenting to the rule of law, a group of property owners vowed to protect each other from the vicissitudes of the world.

In England, the notion of property rights, stressed by Locke in the 17th century, were legitimized centuries earlier in the Magna Carta. The Magna Carta, like the Constitution, guaranteed the protection of private property from arbitrary seizure, something that had been common practice throughout feudal England. With the guarantee of the protection of private property, property owners were free to invest in their land and, more importantly, begin to accrue capital. Capital is accumulated wealth that is used to create more wealth.

A 2002 finalist for the Nobel Prize and a leading thinker in the anti-poverty movement, Hernando De Soto, linked a legitimate and secure system of private property with the creation of capital. If private property is not secured — that is if people do not feel that they are guaranteed rightful ownership of their land — the growth of capital will not proceed, and wealth will not accrue.

Thanks to the Kelo decision, private property will not be secured. The government, with almost carte blanche control over the future of private property, now has the power to destroy the very economic engine that brought us success in the world. With many of the world’s developing nations finally realizing the importance of property rights, America has taken a step backwards. Private property rights, now a pawn to the revived specter of socialism, may soon disappear, taking with them all the successes that democracy has won.