Strengthening the Ownership of Private Property Act of 2005: Eminent Domain and Property Private Rights: An Opportunity to Address a Decades-Long Concern

摘要

I don't know of any U.S. Supreme Court decision that had a more devastating effect on private property rights than Kelo v. City of New London. The Fifth Amendment of the United States Constitution provides in part: "nor shall private property be takenfor public use without just compensation." The Supreme Court has taken the words "public use" and replaced it with their new language "public purpose." What's next? Public benefit? Justice O'Connor states in the dissenting opinion that the court is expanding the meaning of the word public use. She states the decision "holds that the sovereign may take private property currently put to ordinary private use and give it over for new, ordinary private use, so that new use is predicated to generate some secondary benefit for the public—such as increased tax revenue, more jobs, maybe even aesthetic pleasure. But nearly any lawful use of real private property can be said to generate some incidental benefit to the public thus if predicated (or even guaranteed) positive side effects are enough to render transfer from one private party to another constitutional, then the words 'for public use' do not realistically exclude any takings, and thus do not exert any constraint on imminent domain power" (dissentingopinion, Kelo v. City of New London).