Private Property

Kelo v. New London (2005)

Case background and primary source documents concerning the Supreme Court case of Kelo v. New London. Dealing with eminent domain and whether the government can take private property and give it to a private developer, this lesson asks students to evaluate the Court’s ruling in the case.

Founding Principles

Inalienable / Natural Rights image

Inalienable / Natural Rights

Freedoms which belong to us by nature and can only be justly taken away through due process.

Limited Government image

Limited Government

Citizens are best able to pursue happiness when government is confined to those powers which protect their life, liberty, and property.

Property Rights image

Property Rights

The natural right of all individuals to create, obtain, and control their possessions, beliefs, faculties, and opinions, as well as the fruits of their labor.

Case Background

In Calder v. Bull (1798), Justice Samuel Chase wrote that it “is against all reason and justice, for a people to entrust a Legislature with” the power to enact “a law that takes property from A. and gives it to B.” For a long time, the “public use” limitation was understood to require that the government actually use the property it was taking, for example to build a road, a school, a hospital, a prison or other government facilities.

But what if government takes private property because that property is run down, impoverished, deteriorating, or blighted, and the government plans to redevelop the property to more valuable, “private” uses? Ultimately, this question has proven difficult and controversial for the Supreme Court.

The Court first addressed these issues in Berman v. Parker (1954), a case in which the Court upheld a redevelopment plan targeting a blighted area of Washington, D.C. The Court unanimously held that the plan involved a “public use” because the plan, as a whole, served public purposes, even though much of the property would be leased or sold to private parties.

In 1998, the pharmaceutical company Pfizer built a new facility in New London, Connecticut. Seeking to improve the economic outlook of the area, the city’s New London Development Corporation offered to sell Pfizer additional land where the drug company would build a large resort/ marina/condominium complex. Most of the residents of the affected neighborhoods accepted the city’s offer to purchase their property. However, Susette Kelo was one of 15 property owners who refused to sell. They maintained that the government does not have the constitutional power to take private property in order to turn it over to a private developer. The city then invoked its power of eminent domain in order to take the land. In Kelo v. New London, the Supreme Court was asked to determine whether the “public purpose” as intended by city government was the same thing as the Fifth Amendment’s “public use.”

Key Question

Evaluate the Court’s ruling in Kelo v. New London.

Directions

Read the Case Background and Key Question. Then analyze the Documents provided. Finally, answer the Key Question in a well-organized essay that incorporates your interpretations of the Documents as well as your own knowledge of history.

Learning Objectives

  • Students trace the historical background of government power to take private property for public use.
  • Students analyze modern examples of government taking of private property for public use.

Activities

  1. To set the stage for this lesson, provide half the class with a copy of the Bill of Rights, and the other half with Document C, James Madison’s essay “On Property”. Have students complete the following with their respective documents: Underline physical property and circle other types of property.

    Have students form pairs or small groups that include both documents and discuss the ways they have marked them. Next, have students with the Bill of Rights go back through it, marking additional items that Madison considered to be included in the term, “property”.

    Discuss the differences between the way Madison understood “property” and the way that term is commonly used today. What aspects of life in the neighborhood of one’s own choosing are part of one’s property rights?

  2. See Background Information on Kelo v. New London, p. 98. Discuss with students the context provided for Document D, Berman v. Parker (1954).
  3. Have students analyze Document D, Berman v. Parker (1954), and answer the scaffolding questions.
  4. Assign appropriate documents for student analysis.
  5. Have students complete handout Graphing Property Rights—Kelo DBQ.
  6. Use key question, “Evaluate the Court’s ruling in Kelo v. New London” for class discussion or writing assignment, focusing on the constitutional principles involved in the case.

See RESOURCES for additional Graphic Organizers.

Materials

  1. Blackstone’s Commentaries on the Laws of England (1765)
  2. The Fifth Amendment (1791)
  3. James Madison’s On Property (1792)
  4. Berman v. Parker (1954), Unanimous Opinion
  5. Poletown Neighborhood Council v. City of Detroit (1981), Michigan Supreme Court
  6. County of Wayne v. Edward Hathcock (2004), Michigan Supreme Court
  7. New London (2004)
  8. Kelo v. New London (2005) Majority Opinion
  9. Kelo v. New London (2005), Dissenting Opinion
  10. Kelo v. New London (2005), Dissenting Opinion
  11. “A Wreck of a Plan,” Charlotte Allen, Washington Post (2005)
  12. Newspaper Accounts (2009)
  13. Satellite View of Fort Trumbull (2010)

Background Information

Document A: Blackstone’s Commentaries on the Laws of England (1765)
Sir William Blackstone (1723–1780) was an English lawyer and judge whose Commentaries on the Laws of England provided an explanation of English common law. Blackstone’s work was very influential in the thinking of America’s Founders, and continues to be frequently used in modern legal reasoning.

Document D: Berman v. Parker (1954), Unanimous Opinion
“Urban blight” refers to decay of buildings and deterioration of neighborhoods that result from a number of causes, including overcrowding, an increase in criminal activity and lack of proper maintenance of the structures. In 1945, in order to correct blighted areas in Washington, D.C., Congress passed the District of Columbia Redevelopment Act, which created the 5-member District of Columbia Redevelopment Land Agency. The law gave this new agency the power of eminent domain, or the authority to seize private property after paying its owners a just price. After conducting surveys to identify neighborhoods in need of beautification, rebuilding, and “revitalization,” the Redevelopment Agency in 1950 published its plan to take over property in the District’s southwest quadrant, including Berman’s well-maintained and successful department store. About 5000 people lived in the area, 98% of them African American. According to the Agency’s surveys, 58% of the residential units had only outdoor toilets, 29% had no electricity, and 64% of the dwellings were beyond repair. The planning commission proposed to demolish the houses and businesses, create parks, streets, and schools for public use, and then lease or sell the remaining land to private developers who would build various kinds of structures specified in the Agency’s plan, including low-rent apartments. Berman and other owners of the department store brought suit against the planning commission, on the grounds that their property was not slum housing or otherwise blighted and it was unconstitutional for government to take property from one private owner to turn it over to another, even if the original property owner was paid. Justice William O. Douglas wrote the opinion for a unanimous Court.

Document E: Poletown Neighborhood Council v. City of Detroit (1981)
Detroit, suffering a long-term economic downturn and high unemployment, planned to sell a large tract of land to General Motors. In return, General Motors agreed to develop a factory that promised to provide 6,000 permanent jobs. The area seized by Detroit was home to thousands of people, who were mostly Polish immigrants. About 1400 homes, more than 100 businesses, a major hospital, and several churches were on this land. The city claimed that the use of eminent domain served a public purpose because of the expanded tax revenue that would be generated by the factory. The Majority of the Michigan Supreme Court agreed with the city. The predicted greatly expanded tax base did not materialize and the factory fell far short of its promise of 6,000 jobs.

Document F: County of Wayne v. Edward Hathcock (2004), Michigan Supreme Court
In this case, Wayne County wanted to use the power of eminent domain to take citizens’ properties for the construction of a 1,300-acre business and technology park. This proposed commercial center was intended to re-invigorate the struggling economy of southeastern Michigan by attracting businesses, particularly those involved in developing new technologies, to the area. In this case, the Michigan Supreme Court unanimously overturned its ruling in Poletown.

Document K: “A Wreck of a Plan,” Charlotte Allen, July 17, 2005
After the Kelo decision, Charlotte Allen, a resident of Washington, D.C.’s southwest area, wrote a critique of the urban revitalization that resulted from the Berman decision.

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