COMMENTARY
Founders were wise in allowing property seizure for benefit of all

By David Barron

To many, the headlines about the recent Supreme Court decision in Kelo v. City of New London — "Court Authorizes Seizure of Homes" — must sound un-American. But in upholding a city's right to take private property as part of an economic redevelopment plan, the court affirmed principles as old as the Constitution.

There should be no doubt that the Constitution permits the government to take private property without consent in some instances. The very same provision of the Constitution that protects the right to private property — the Fifth Amendment — also provides that the government may "take" private property for "public use" so long as it pays "just compensation."

That does not mean the government may act like a thief. Thieves do not have to get public approval to take property they don't own. And they don't have to pay compensation for what they take. Governments must do both to comply with the Constitution.

The founders made a wise choice in permitting government to take private property without consent. From laying railroad tracks to building highways, the government often needs to assemble large amounts of land to provide common benefits. Indeed, the property owners in Kelo no doubt benefited from past takings that permitted the government to build roads and highways connecting New London, Conn., to state and national markets.

But does that mean the government can take property for any reason? What about the Constitution's requirement that takings must be for a "public use"? The city of New London was not building a public highway. Nor was it erecting a governmental building. It was clearing land for offices and shops and new homes. How is taking land for private development a public use?

The answer lies in history. Since before the Civil War, courts have recognized that government sometimes must enlist private actors to make "public" use of land it seizes. States, for example, often empowered railroads to condemn private land to create their routes. The government required the railroads to act as common carriers in return, but it did not prohibit them from operating as private companies. Passengers still had to pay to ride. But courts treated the railroad's private use of the seized land as "public" because of the obvious benefits that flowed from increased rail travel.

It's not surprising that courts look favorably upon such public-private partnerships. The government has no monopoly on knowledge when it comes to market matters. But if public-private partnerships were permissible in the early years of industrial America, they should be no more objectionable today.

New London was attempting to retrofit itself for a rapidly globalizing economy. It was reclaiming its waterfront for a new urban era, and capitalizing on new business development. Such efforts would benefit private developers. But they also would benefit the city and the state. Or so thought the city council — backed up by the state's authorizing legislation, and state dollars supporting its redevelopment plan.

The Supreme Court concluded it would follow the wise counsel of previous courts, and defer to the economic policy choices of the people's representatives.

But if the court showed admirable deference in refusing to second-guess the city, it also rightly backed away from statements in some earlier opinions that sounded almost like abdication. Kelo now makes it clear that the government must engage in a sincere effort to benefit the public — a point Justice Anthony Kennedy emphasized in his concurring opinion that supplied the majority's necessary fifth vote.

In particular, the court issued a warning to cities contemplating "a one-to-one transfer of property, exercised outside the confines of an integrated development plan" and aimed solely at boosting the property tax base. Such action, the court suggested, "would certainly raise a suspicion that a private purpose was afoot."

And the court also opened the door to a reconsideration of what constitutes "just compensation," noting the special hardships faced by the property owners on the wrong end of the court's holding.

Important as those caveats are, though, Kelo's real significance lies in its broad view of local planning power. As the era of urban renewal reveals, things can go awry when cities partner with private developers to remake "distressed" neighborhoods. But those risks may at least be addressed through politics.

The Supreme Court empowered cities to confront the next phase of urban development with imagination and energy. One hopes they will prove worthy of that confidence.

David Barron is a professor at Harvard Law School and an expert on local government law. He wrote this commentary for the Hartford (Conn.) Courant.