United States Constitution

PREAMBLE : We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution

ARTICLES

Amendment

Introduction		Important Cases
Eminent domain – the idea that a government has the authority to take private land for ome public purpose – is a long-standing accepted tradition in common-law countries (those whose legal systems stem from England). Justifications for this power include promoting the rights of the many over those of individual landowners, working toward the common good, and the inherent supremacy of the government as a sovereign entity with the ultimate authority over property. But in the United States, the 5th Amendment does provide some measure of protection to private individuals whose land has been taken by the government: “nor shall private property be taken for public use without just compensation.” The courts have interpreted this right to require the landowner be given notice and afforded the right to a hearing before his or her land can be taken, or “condemned.” At this hearing the court determines the propriety of the public use and the amount of compensation that can be considered just.

The Broadening of Public Use		Important Cases
Though the government is conceptually only supposed to take private property for so-called “public use,” the contours of what is considered public use have been considerably broad over the years. Ultimately, “public use” has been transmuted into a more vague “public purpose” test. This has been evident in both state and federal courts. For example, in the famous case of Poletown v. City of Detroit (1981), a Michigan court allowed Detroit to take over an entire neighborhood and transfer the land to another private entity, General Motors. The argument was that ‘What’s good for GM is good for Detroit.’ In other words, as opposed to private land being taken from private landowners and placed in the hands of the public, it was being placed in the hands of another private entity. But the Michigan court permitted this because ‘economic revitalization’ of this area was seen as for the common good. This expansion of “public use” has been acknowledged and followed in the U.S. Supreme Court as well. For example, in Berman v. Parker (1954), the Court permitted the government of Washington, D.C. to take land from private individuals and given it to private developers to make way for economic revitalization. In Hawaii Housing Authority v. Midkif (1984), the Court also upheld the Hawaii legislature’s break up of privately held land and redistribution of this land to other tenants – in order to break up what had essentially become a land oligopoly. It was private to private, but it was upheld as a public benefit. In the recent and high profile case of Kelo v. City of New London (2005), the Court again held that takings for ‘economic revitalization’ were permissible no matter that the government was taking private property and giving it directly to another private entity. Kelo was controversial because scholars and legal practitioners suspected that the Court would overrule its earlier precedents and tighten the public use test. However, it did not. ‘Public use’ remained the broad ‘public purpose.’		Berman v. Parker (1954) Hawaii Housing Authority v. Midkif (1984) Kelo v. City of New London (2005)

The Broadening of Public Use

Important Cases

Though the government is conceptually only supposed to take private property for so-called “public use,” the contours of what is considered public use have been considerably broad over the years. Ultimately, “public use” has been transmuted into a more vague “public purpose” test. This has been evident in both state and federal courts. For example, in the famous case of Poletown v. City of Detroit (1981), a Michigan court allowed Detroit to take over an entire neighborhood and transfer the land to another private entity, General Motors. The argument was that ‘What’s good for GM is good for Detroit.’ In other words, as opposed to private land being taken from private landowners and placed in the hands of the public, it was being placed in the hands of another private entity. But the Michigan court permitted this because ‘economic revitalization’ of this area was seen as for the common good.

This expansion of “public use” has been acknowledged and followed in the U.S. Supreme Court as well. For example, in Berman v. Parker (1954), the Court permitted the government of Washington, D.C. to take land from private individuals and given it to private developers to make way for economic revitalization. In Hawaii Housing Authority v. Midkif (1984), the Court also upheld the Hawaii legislature’s break up of privately held land and redistribution of this land to other tenants – in order to break up what had essentially become a land oligopoly. It was private to private, but it was upheld as a public benefit. In the recent and high profile case of Kelo v. City of New London (2005), the Court again held that takings for ‘economic revitalization’ were permissible no matter that the government was taking private property and giving it directly to another private entity. Kelo was controversial because scholars and legal practitioners suspected that the Court would overrule its earlier precedents and tighten the public use test. However, it did not. ‘Public use’ remained the broad ‘public purpose.’

Berman v. Parker (1954)

Hawaii Housing Authority v. Midkif (1984)

Kelo v. City of New London (2005)

Implicit (Regulatory) Takings		Important Cases
Sometimes, a government may pass a law which does not directly and explicitly take property away from a private landowner – but the law so harshly affects the land that courts view it as an implicit, or regulatory, taking. These sorts of takings, however, are more difficult to ascertain, and over the years, the Supreme Court has described several different tests for determining if a law can be considered so harsh that it essentially ‘took’ a person’s private land away. One of the most prominent tests that courts use is the so-called ‘reasonable return test,’ which was first laid out by the Supreme Court in Penn Central v. City of New York (1978). In that case, New York City had prevented the owner of the Grand Central Station train terminal from building atop the iconic station. The government did not want to damage or change the historically relevant building. But the company that sought to build sued the city – claiming that it was being unfairly prevented from using its own land as it saw fit. Tall buildings are extremely valuable in Manhattan, especially in the area near Grand Central. Essentially, the owner claimed, the law was “taking” their land away. But the Supreme Court rejected this argument. Instead, it held that provided the owner still maintained a ‘reasonable return’ on profits from the building, no taking had occurred. The Court felt that the income from Grand Central Station was more than enough to constitute reasonable return.		Hadachek v. Sebastian (1915) Pennsylvania Coal Co. v. Mahon (1922) Penn Central v. City of New York (1978) Lucas v. South Carolina Coastal Council (1992) Tahoe-Sierra Preservation Council, Inc. v. Tahoe Regional Planning Agency (2002)

Implicit (Regulatory) Takings

Important Cases

Sometimes, a government may pass a law which does not directly and explicitly take property away from a private landowner – but the law so harshly affects the land that courts view it as an implicit, or regulatory, taking. These sorts of takings, however, are more difficult to ascertain, and over the years, the Supreme Court has described several different tests for determining if a law can be considered so harsh that it essentially ‘took’ a person’s private land away.

One of the most prominent tests that courts use is the so-called ‘reasonable return test,’ which was first laid out by the Supreme Court in Penn Central v. City of New York (1978). In that case, New York City had prevented the owner of the Grand Central Station train terminal from building atop the iconic station. The government did not want to damage or change the historically relevant building. But the company that sought to build sued the city – claiming that it was being unfairly prevented from using its own land as it saw fit. Tall buildings are extremely valuable in Manhattan, especially in the area near Grand Central. Essentially, the owner claimed, the law was “taking” their land away. But the Supreme Court rejected this argument. Instead, it held that provided the owner still maintained a ‘reasonable return’ on profits from the building, no taking had occurred. The Court felt that the income from Grand Central Station was more than enough to constitute reasonable return.

Hadachek v. Sebastian (1915)

Pennsylvania Coal Co. v. Mahon (1922)

Penn Central v. City of New York (1978)

Lucas v. South Carolina Coastal Council (1992)

Tahoe-Sierra Preservation Council, Inc. v. Tahoe Regional Planning Agency (2002)

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United States Constitution

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Amendment

Eminent Domain

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