Constitutional Law is unlikely to become clear unless and until the student finally, after some study, is able to snap the competing values each into sharp focus. Then you can see what is competing with what.
This is why you read dissents. The temptation is to read the main opinion and skip the dissent. You might remember who won the civil war, but not what it was fought over.
Skipping the dissent is a mistake, because the dissent, representing what has been rejected as the law, usually informs as to what the fight was really about.
Soon the Supreme Court will hear arguments in the case of Kelo vs. New London, in which the City of New London, Connecticut, used its power of eminent domain (the power to condemn, meaning to take, for a reasonable compensation, with the amount to be determined in a due process hearing, often a jury trial) occupied private family dwellings (homes) in an older down-market neighborhood, in order to sell the property to a well-capitalized developer who plans to build attractive office space and homes for the business executives and scientists doing work related to the existing pharmaceutical industry and developing biotech industry.
Cities and developers often combine forces to "renew" a "blighted" area. That's how parcel on which was built the late World Trade Center in New York was assembled, over protest, and the Lincoln Center for the Performing Arts in Manhattan. In San Francisco, The Moscone Convention Center, the Museum of Modern Art, the Performing Arts Center, and various public housing developments South of Market were built over objection of poorer residents and small business, bars, printers, metal working shops and the like. A run-down neighborhood was turned into a jewel that now contains a baseball stadium and new upscale apartment buildings, restaurants and a bookstore. Civic improvement has attracted the development of the new Mission Bay biotech research center developed by Catellus with the cooperation of the UCSF Medical Center.
Run-down neighborhoods, residential and industrial, were converted into the new century's platform for development, at the cost of putting small operators out of business and ousting poorer residents.
If an owner refused to sell, he was ousted legally. Private property had to give way to public need.
Ah, but what is the public need? This concept may be just a bit fuzzy and in need of definition, that is, line-drawing.
The competition is between old neighborhoods, and new, richer neighborhoods. Blue collar vs. white collar. Stagnant, downhill vs. dynamic, upscale. Older vs. younger residents. Those on the make vs. those waiting out their time, perhaps.
There are lots of ways of viewing what is at stake. How to spin it is the lawyers' task, and the Court's.
One of the ways of viewing the contest is that of a struggle between the power of government and the rights of the individual. Just how strong are property rights? Do you really own what you think you own? Or can it be taken by your bigger, stronger, brother and his gang, legally, because they can use it better, they think, and besides, they want it and have the power to wrest it from you, no matter your tears. Will the law protect you or the bullies? What is this thing called "property." Is it something solid, like rock and earth? Or the proverbial bundle of rights, any one of which may be alienable and severable from the rest. See your Real Property professor for further news on this.
When the founding fathers drafted the rules setting up this country, the protection of property (along with life and liberty), was initially left out in the 1787 Constitution. That's why a number of very respected individuals opposed ratification of a constitution that they helped create, such as notable patriots George Mason and Patrick Henry of Virginia, known as anti-Federalists. Proponents of the new Constitution, such as arch-inspirer Alexander Hamilton, were forced to agree to making a deal. This is how we got out Bill of Rights. In return for the cooperation of the Anti folks, the Pro-Federalists (or just plain Federalists, traditionally) agreed to tack on a list of rights.
Someone had to come up with a list, and the person assigned to do so was little Jimmy Madison. He knew history, could write, and could be trusted to check the various state charters to see what rights they recognized. He came up with over a hundred instances and boiled them down to an even dozen, of which ten survived the vetting process. Another was adopted 175 or so years later. The adopted ten are Amendments 1-10, the Bill of Rights.
Amendment 5 is the one that protects life, liberty, and property which cannot be taken except by due process of law, whatever that is.
Since the Bill of Rights only applied to restrain the Federal government, and not the state governments (Barron v. Baltimore, the silted-up wharf case, opinion by Marshall, C.J.), state governments remained free to deprive an individual of rights that the federal government was powerless to exercise. While the feds couldn't getcha, the states could. The 14th Amendment, ratified after the Civil War in 1868, to help consolidate the Northern gains of war, reiterated the Fifth Amendment's due process protection of life, liberty, and property, applying it to the states. Other textual rights, such as ex post facto, appearing in the Bill of Rights and in the body of the Constitution, had to sneak in the back door, through a Court-invented doctrine holding that if a right was basic enough to be called "fundamental, " that is, "implicit in the concept of ordered liberty" (Palko v. Connecticut 1937, Cardozo, J.), they were included in the idea of due process contained in the 14th Amendment.
There was considerable controversy over whether these other rights should be included wholesale (all at once) or piecemeal (one at a time, or "selective" incorporation). Selective incorporation won, and for three decades the fight was over which and when. Ultimately most constitutional textual rights have been incorporated, mainly in the field of criminal procedure, such as self-incrimination and double jeopardy (although Palko denied incorporation and it took a later case to reverse Palko on this point).
Returning now to the pending Kelo case, how do you think John Marshall might have decided. Marshall was a Federalist whose decisions consciously favored strengthening the power of the national government. He is famous for being a nationalizer, a consolidator of central government power, as opposed to states' rights or individual rights. Of course he thrived long ago, serving as Chief Justice from 1800 to 1834.
In the Kelo case, the claims of the individual are pitted against the claims of the government. In this case it is a city government, not federal, but remember, cities are political subdivisions of state governments. Cities could not exist except under state law recognizing them as independent legal entities, similar to corporations. But the federal government has the power to take property, also. So what the Court does in Kelo seems likely to apply to all governments, city, state and federal. The same conflict between government power and individual property rights could come up under any governmental authority that claims your land for the greater good.
Suppose a government agency wanted to take your property for the greater good of poor people, or immigrants, or sick people, or to set right past injustices, could government do that?
Socialism!
Communism!
You might claim these things.
But unless a line is drawn somewhere, government can conceivably take your land, provided they pay you fair value for it. I wonder whether fair value of your property means before the takeover was announced, or in light of it's new potentially greater worth as being in the process of development.
If the government needed your property to build a highway, for the greater good of all, it could take your land, that is, your farm, home or neighborhood. Where do you think all our highways, freeways, parkways, interstates, etc., come from? The power of eminent domain. Condemnation proceedings. Due process payments of fair value.
How about a hospital? Could a government take your land to build a hospital? Such as for veterans? Or a Pubic Health Service hospital?
Or a school, such as a public school or university?
Those are classic examples where the power has been deemed legitimately exercised, for the greater good of all. Transportation, health, education, the country needs to encourage those for the benefit of all, generally.
Do you see a distinction between taking your land for those purposes and taking your land to fatten the wallet of a richer guy than you?
What gives him the right to take your land? He has no right, of course. He's no better than a nosy neighbor who sees what you have and decides he'd like it because he can do more with the money it will reap him than you seem able to do, otherwise you would have developed your modest home yourself.
But suppose the developer decides not just to take over your home, but the home of the neighbors up and down the block, as well, until he assembles a big enough parcel to sell to a large corporation in need of a new corporate "campus," as they call such things these days. You know, bulldoze your home, put up a few modern office and laboratory buildings, install a new Starbucks, and call it a Campus. Generate more tax money for the city. City is willing to come on board. Wealthy corporate executives, scientists, and high-tech people can be packed into luxury high-rises. They'll all pay more taxes. There'll be better schools and public health care for the people who aren't thrown out of town by the bulldozers.
You can see the problem.
It's one thing to condemn property, meaning to take it using the power of eminent domain which includes fair payment, for a direct public gain, such as in the case of highways, health and education, but something else to favor the big private guy over the little private guy.
What the big private guy cannot do directly, such as if you refuse to sell out to him, he tries to do indirectly, by rattling government's cage until the powers that be see things his way and exercise this power to steal your land without your permission, legally, of course, and with payment. So maybe it's not exactly stealing, because of the payment, but now you have to move away or buy another place that you may have trouble affording despite the payment. Plus you don't get to enjoy your old friends and neighborhood shops and parks.
This situation illustrates another problem in studying Con-Law issues. What I've tried to do is to knock the arguments into a binary hat. Either/Or. Black and White. A Manichean dichotomy.
Otherwise the problem hides behind the words, and we cannot have that in Con-Law. All problems in Con-Law must be stated in terms of this choice vs. that choice. The Court decides we're going to go this way, not that. Expect a dissent to say that we should have gone the other way, thanks.
How would you cast this debate? How would you spin it? Which competing values are butting heads? Which economic theory wins? The right of the private owner of private property, or the power of government?
We've been talking about little homeowners in a Connecticut city. Suppose the land being condemned for development of new homes is owned by a big cotton farmer in California. Can government take his land to build low-income houses intended to benefit, say, farm workers? Migrant farm workers? Illegal alien farm workers? The children of illegal farm workers. If such children are entitled to a free public education, as they are, (Plyler v. Doe), considering that free elementary school education is a fundamental right, then why not a place to live? Isn't that fundamental?
Suppose the land is privately owned range land out West. Does that make a difference?
Suppose the neighborhood to be condemned is in the approach or take-off path of a major airport around which a city has grown, such as SFO or JFK. The airport will serve the region, but the new buildings will house private restaurants, stores, and hotels in which not only serve the traveler but enrich the investors. A mixed public-private use.
How much of the old idea that private property is sacrosanct, one of the very reasons for founding the United States, will be respected by the Supreme Court.
How much will the Court bow to the idea that private property owners are subject to being deprived of their property for what government deems is in "the public interest," or "the public good," or "the greater good of all?"
Should private operators be allowed to use their muscle, political and economic, to bulldoze the homes of relatively powerless private homeowners to wax even fatter?
But doesn't government encouragement of private investment in blighted neighborhood, to transform them into garden parks of economic prosperity, that will attract corporate headquarters and university offshoots justify the bulldozing of your neighborhood?
Did someone guaranty you that your neighborhood will never change? That the buildings will never become run-down and not worth the cost of upkeep? That they will become a slum? Wouldn't slum-clearance justify taking, bulldozing, and rebuilding? Think of the new tax revenue?
A hundred neighbors will lose out, but a thousand newcomers will build and buy and maintain and revive a dying city. Isn't that worth something? A huge communal benefit, instead of an old neighborhood going down the communal toilet?
Stay tuned, because the Supreme Court is going to have to wrestle with such questions if they mean to do justice to such a conflict of visions and values.
Of course, that's why the nine justices get paid the big bucks, right?
I think it worth noting, on the question of competing ultimate values, that at an earlier stage of Western social, political, and economic development, for many years the dominant paradigm was the feudal system, which was, for the poor serfs, communal. While the duke or earl owned huge fiefs under the king, who was the top lord of the feudal pyramid, the serfs were entitled to occupy their homes, till land assigned to (but not owned by) them, keep much of the harvest (sharing with the lord), and run their cows on the village Common area, as in Boston Common, to show how recently the idea persisted.
As the Puritans turned themselves into successful entrepreneurs (shrewd Yankee tradersand capitalists, with whaling voyages, the China trade, and rum, sugar, and slaves in the Caribbean), and as the nation was surveyed and subdivided into saleable parcels, the idea of real property as property became enormously popular influential. Surveyors such as George Washington and John Marshall's father crossed the mountains of Virginia to draw the lines that could be turned into deeds which could be sold in Richmond and on Wall Street, without even having to look at the land. Land was turned into paper property in which you could invest. The Constitution protected your land rights and your paper rights. It was virtually the same in the sense that you could invest in either and become rich, provided laws existed to protect your rights.
Individuals became rich. Others remained poor. A conflict arose. How rich should the rich be allowed to become? Should such riches be encouraged to exist by reason of the nation's laws? Even when there were so many poor?
The Age of the Robber Barons and the subsequent Lochner Era highlighted the contrast. Capitalism vs. Socialism. The lines were drawn.
The Great Depression of the 1930s put an end to dog-eat-dog unrestricted capitalism. From then on, you could become rich, but there was a greater payback owed to the common good. Minimum wages, maximum hours, safer working conditions, social security, workers compensation for job-related injuries, labor unions, and health insurance benefits became hard fought issues, much of which labor won at the expense of owners and managers. Suddenly ownership rights meant "subject to the common good." No longer did owners have unfettered control of their land, investment, and property. They had to accommodate the needs of the common laboring person in many of its aspects.
The Kelo case raises the question of how far this idea of "for the common good" goes, how indirectly one may calculate the benefits, because remember, the immediate beneficiary is a private developer who has asked the government (the city) to exercise its power for his personal benefit, on the theory that profiting him will in the long run profit the city. The benefits will trickle down, perhaps.
But suppose they don't.
Suppose the developer with the big plans suffers an economic downturn and goes bankrupt. Who will complete the development of the plan? The city?
Meanwhile the ousted neighbors have seen their homes bulldozed, as in New London, except for the holdout, Ms. Kelo.
You can see why we need a supreme court or its functional equivalent to wrestle with such conundrums.
Articles quoting interesting (because relevant and conflicting) takes on Kelo v. New London appear in U.S. News & World Report and the Salt Lake Tribune.