Property Rights and the Common Good

Abstract

federal and state power of eminent domain is constrained by the Fifth Amendment's Takings Clause: nor shall private property be taken for use, without compensation. Thus government may take property only (1) for a and (2) with just compensation. This constitutional provision seems innocuous, but it has created deep fault lines between those who view the state as a vehicle for the common good and those who see protection of private property as the natural right of citizens. Much controversy has swirled around the defining question: what is a use? This question has important health dimensions because it helps determine when and how the state can interfere with economic rights to promote the common good. powers of eminent domain can be exercised for many health purposes--to renovate unsanitary or unsafe buildings, to convert private animal shelters to serve needs of controlling dangerous animals, and to confiscate hospitals for care or even quarantine during a health emergency. Under the requirement, the state cannot take property solely to confer a private benefit, even if the owner were fully compensated. Classically, the state may not take the property of one person for the sole purpose of transferring it to another person. But what if the state's purpose were to advance the interest in health, welfare, prosperity, or another good, but the transfer also conferred an economic advantage on private parties? That was the case in Kelo v. New London, where the Supreme Court held that the government could confiscate private homes to renovate a decaying city) case, decided late last year, elicited a howl of protest from every ideological corner. term is susceptible to a narrow or broad interpretation. In its narrow sense, literally is use by the public where the government takes ownership (such as a utility) or grants access to the (a park, road, or railway). In its broader sense, is when the taking benefits the public. Supreme Court historically has preferred an expansive understanding of use, defining it more as a purpose. Court decisions have conceived of as virtually coterminous with the police powers. Supreme Court has upheld the power of eminent domain provided it is rationally related to a conceivable purpose. (2) Moreover, the Court has deferred to elected bodies in deciding what forms of development will benefit the public. For example, the Court was highly permissive in upholding the District of Columbia's of eminent domain to acquire slum properties and transfer them to private developers to remove urban blight. Justice Douglas explained: The concept of the welfare is broad and inclusive.... values it represents are spiritual as well as physical, aesthetic as well as monetary.... If those who govern decide that the Nations Capital should be beautiful as well as sanitary, there is nothing in the Fifth Amendment that stands in the way. (3) Supreme Court's expansive understanding of was affirmed in a bitterly contested five-to-four decision in Kelo. This case featured homeowners who challenged the condemnation of their property under a comprehensive urban renewal plan designed to increase jobs and augment tax revenue in an economically distressed city. Court found that economic development is a long accepted function of government, and it refused to limit the of eminent domain to properties that are blighted or to require government to show a reasonable certainty that the expected benefits actually will ensue. decision was commonly seen as benefiting large corporations at the expense of homeowners and small businesses. (What really stuck in the craw of many Americans was that a new corporate facility for Pfizer Pharmaceuticals was part of the city plan. …