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No. 04-108
IN THE
Supreme Court of the
October, 2004 SUSETTE KELO, ET AL., Appellants, v. CITY OF Appellees. |
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AMICUS
CURIAE BRIEF OF THE TIDEWATER
LIBERTARIAN PARTYON THE MERITS IN
SUPPORT OF THE APPELLANTS |
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Stephen Merrill, Attorney Tel. (757) 623-4200
Counsel for
Amicus Curiae
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IN THE
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STATEMENT OF INTEREST OF AMICUS CURIAE
The Tidewater Libertarian Party is an independent affiliate of
the Libertarian Party of Virginia and the national Libertarian Party.
In eastern |
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As is well known, Libertarians favor the return to American constitutional principles of limited government that formed this nation and prevailed until the 20th Century tide of collectivism invented an all-powerful Congress from whole cloth. One of the traditional constitutional principles the TLP advances is the narrow meaning of the “Public Use” exceptions to private property rights as written in the Fifth Amendment and applied to the States by the Fourteenth Amendment. In However, it may be that an open practice of
city-mandated economic redevelopment is preferable in some ways to the
narrower basis for legally imposed redevelopment sanctioned by the |
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As the cities of This brief is written to
make the case for the broader principle to apply: the principle that
real property should never be expropriated from one group of citizens by
the government for the private use and enjoyment of other citizens.
“Public Use” should be returned to its traditional meaning: only
for the construction of government-owned facilities and public utilities
and roadways.
The disastrous history of urban redevelopment over the past fifty years
could not be better proof that government is ill-suited to the task of
grand economic planning: something the Constitution wisely excluded from
the enumerated powers of government. |
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SUMMARY OF ARGUMENT
Civilized
societies going back to the time of ancient Greece and Babylon adopted
the principle the King himself may not expropriate land except for a
legitimate public use and on the payment of fair compensation.
These freedoms passed into law so many times in so many places
have only recently been abridged by modern government in a stampede to
expropriate land on a wholesale basis for transfer to the legislature’s
favorites. From a small
opening aimed at combating the worst housing conditions imaginable, the
tide of eminent domain has swelled nationwide to the point today that
long-time neighborhoods are never safe from the envy of the powerful and
wealthy. Excessive power
corrupts: absolutely over time. The decision in Berman
v. Parker, supra, was a sharp departure from the usual protections
inherent in the ownership of land dating more than two millennia.
The case should be overruled.
There are many possible solutions to curing blight and predatory
practices that may well prove more effective than expropriation by
government has proven to be.
To draw a distinction between clearing blight in Washington, D.C.
and economic planning in New London, Connecticut is to perpetuate the
error made and to confirm the principle that the United States of
America has forever left that league of nations that prohibit the
forcible expropriation of land for anything other than a legitimate
public use. |
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ARGUMENT
The words of the Fifth Amendment are stark and clear. “No person shall be deprived of … property without due process of law nor shall private
property be taken for public use, without just compensation.”
At the time the Fifth Amendment was enacted, the reference to eminent domain as part of the provision was a natural one. The reference defines the scope and terms of the one large exception to the usual rules protecting the private ownership of property. The amendment confirms that real property takings are absolutely necessary at times in order to build large public facilities, to use waterways and to provide for roads. The concept of such a “public purpose” as a condition of a taking was never conceived to empower the government to expropriate land for purely economic reasons, until the Congress of 1945 and the Berman decision. The traditional American rule limiting the scope of eminent domain could be stated broadly and simply: the government does not have the power to take land from one citizen in order to give the land to another citizen. |
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There is nothing novel in this, even by the time of the Eighteenth Century. The Kings of Babylonia (circa 700 B.C.) could not commit a taking of real property even as a dowry for a Prince. Any taking of real property by the King had to be for a truly public purpose and conditioned on the payment of full compensation. Babylonian and Assyrian Laws, Contracts and Letters, Chapter XVIII, pg. 192 (T. & T Clark, Edinburgh 1904.) The Roman Emperors after Caesar held dictatorial powers, but there were some limits. Roman law always provided that the power of eminent domain could only be used for public facilities. According to Suetonius, Emperor Augustus (31 B.C. - 14 A.D.) narrowed his plans to build a forum to avoid the legal difficulties with dispossessing the owners of neighboring houses. In the same taking, the Roman Senate sold public lands to pay the sums due to the owners who were forced to sell, rather than refuse prompt payment due to the lack of present funds in the treasury. Questions of Public Law, Vol. 2, Chapter 15, Eminent Domain. (At the House of Johannes Van Kerckhem 1737)
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This Court in its long
history has defined “public use” as: “ … government may deem it
important to appropriate lands or other property for its own purposes,
and to enable it to perform its functions, -- as must sometimes be
necessary in the case of forts, light-houses, and military posts or
roads ….its right to do so may be …. the absolute necessity that the
means in the government for performing its functions and perpetuating
its existence should not be liable to be controlled or defeated by the
want of consent of private parties or any other authority.”
Kohl v. In |
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Speaking for the Court,
Justice William O. Douglas swept aside centuries of settled law in the
field of eminent domain by finding that land could be forcibly taken
from one citizen by the government for the private use and benefit of
other citizens. A sign of
the times: Justice Douglas declared that “If those who govern the Out of the blue,
Berman declares that the lawful scope of public use in eminent
domain law is a matter entirely for the legislature to determine: not
for the courts to review.
See contra, Shoemaker v. United States, 147 US. 282, 298 (1892),
Monogahela v. By far the better view of “ … the Fifth Amendment authorizes the taking of private property for public use. But here is the end of government power. That the Government may do whatever it deems to be for the good of the people is not a principle of our system of government. Nor can it be, because the ultimate basic essential in our system is that individuals have inherent rights, and as to them the powers of government are sharply limited. There is no general power in government, in the American concept, to seize private property. Hence, it is universally held that the taking of private property from one person for the private use of another violates the due process clauses of the Fifth and Fourteenth Amendments. Id, at 716 citing Missouri Pacific Ry. Co. v. State of Nebraska ex rel Board of Transportation, 104 U.S. 403, 417 (1896), A Treatise on Constitutional Limitations, Section 1124, et. seq. (Cooley, Little Brown & Co, 8th Ed. 1927). |
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In the time since
Berman, this Court has not directly reaffirmed the principle that
valuable, useful real property can be taken by the government in order
to be given to others for private development.
The decision sometimes considered similar in content to In Midkoff, a land
ownership oligopoly was ended by the Ending monopolistic
practices is a clearly established, proper exercise of governmental
power aimed at creating greater economic freedom for all, unlike the
practice sanctioned in Berman.
But for Berman, the What has happened since
Berman is an explosion of redevelopment planning by government at
all levels using the greatly expanded scope of eminent domain law.
The tremendous future benefits always invoked in redevelopment
planning have proven quite elusory.
The end result in redevelopment has often been disappointing:
even perverse. See The
Art of Revitalization: Improving Conditions in Distressed Inner-City
Neighborhoods, ( |
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If one would believe
today that the government is uniquely positioned to create beauty, that
person should review the architecture of modern 1. Without the blunt force of eminent domain for economic reasons, legislatures would be free to find better solutions for ending blight.
The law of condemnation has long combated dilapidating housing by
litigating with the people responsible for the problem and forcibly
curing the situation in an extreme case.
No one could reasonably suggest that such laws requiring property
owners to maintain their buildings and improvements in a reasonable way
are unlawful. Strict
enforcement of a legitimate building code would be the primary tool to
end the kind of conditions that Justice Douglas describes in If the legislative concern is the prospect of profiteering by some landowners thereby blocking large developments that require the assembly of numerous parcels, different remedies could be adopted. Once the assembly of the larger parcel is sufficiently complete and reviewed for its compliance with zoning laws, the remaining land owners could be limited to a sale prices of no more than twice the fair market value of their property. The practice of profiteering in real property development could itself be made a criminal offense, possibly punishable by the loss of the land at issue. If the issue is health, safety or morals as enumerated in Berman, then the reasonable remedies are also clear. The laws for regulating these areas are already on the books and could be changed in ways to meet present circumstances. A government-imposed real property face-lift is hardly a cure for the kinds of human weaknesses that inevitably lead to the creation of slums and its social pathologies. If the Court were to
retain the principles of Berman, but decide to reject |
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CONCLUSION
It is past time to end the monopolistic planning practices that have corrupted the legitimate use of the power of eminent domain. Berman should be overruled as well as some of the language in Midkoff. The traditional understanding of “public purpose” should be invoked anew in this case. |
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______________________________ Stephen Merrill, Attorney Counsel of Record for Amicus Curiae Tidewater Libertarian Party
Tel. (757) 623-4200 Fax. (757) 282-2543 |