Cascade Policy Institute brief of amicus curiae

In support of the petitioners in Kelo versus New London


This Court's standard of review in regulatory takings cases should be applied in eminent domain cases. The reasons that call for heightened scrutiny when a regulatory taking is alleged apply with equal force when the government seeks to condemn private property through its eminent domain powers. While the public purposes that might be served by eminent domain are the same as those that might be served through the general police power, the eminent domain power is limited by the public use requirement of the 5th Amendment. This limitation serves to protect property owners from being singled out, recognizes that fair market value will often not make property owners whole, assures that the fundamental right to exclude will not be violated without a compelling public purpose, and guards against the abuse of public authority and the corruption of our democratic process.

Reliance on heightened scrutiny in eminent domain cases will not significantly handicap the government in the pursuit of its legitimate purposes. Numerous states have applied heightened scrutiny on the basis of their reading of either the 5th Amendment or of the comparable provisions of their own constitutions. Notwithstanding their heightened scrutiny in public use cases, all of these states have been able to promote economic development, protect their environments, and pursue other public purposes in competition with the other states in the Union.

In reviewing the claims of property owners under the public use limitation of the 5th Amendment, this Court should demand that governments utilize the least burdensome means available. In the instant case, this Court should find that the City of New London has exceeded its legitimate authority in condemning the petitioners' property for immediate lease to private developers. Individual lives and livelihoods should not be so easily sacrificed to the profits of other private parties and the abstract prospect of economic development and increased tax revenues.

Click here for a complete transcript of the brief: www.illinoispolicyinstitute.org/news/Cascade_New_%20London_Brief.pdf