Two days after the 118th anniversary of the signing of the United States Constitution, Hopkins hosted University of Chicago Professor Richard A. Epstein to provide insight on the recent decision of the Supreme Court in Kelo v. City of New London.
Speaking on the topic, "Public Use v. Public Benefit: What's the Difference in a Word?" Epstein touched on the major issues associated with the final phrase of the Fifth Amendment: "No person ... shall [have] private property be taken for public use without just compensation."
Epstein mentioned that John Locke, a major philosophical influence behind the Constitution, addressed two issues concerning eminent domain and the taking of private property. If private property could only be confiscated with the consent of the owner, then all contributions to the government would be voluntary.
Extending this scenario a little further, Epstein hypothesized that taxes, which also take property, could then be considered voluntary contributions. Conversely, Epstein cautioned that a governing body that can take any property it wants can roll over property owners with very legitimate concerns.
In the Kelo case, the city of New London decided that it wanted to revitalize the once lively town. Much of the land needed for the new project was already in government control or easily bought, but Epstein said the city's "eyes got a little bit larger than their stomachs, or their budgets." A group of home owners who wanted to continue living in their houses as they or their family had been doing for the past hundred or more years refused to sell their property.
The city began condemnation hearings and attempted to seize the land for "public use" in the rejuvenating project. The case was appealed all the way to the Supreme Court, which handed down a verdict in favor of the city in a 5-4 spilt decision, saying "the city's proposed disposition of petitioners' property qualifies as a 'public use' within the meaning of the Takings Clause."
Epstein proposed a pyramid structure for looking at cases involving the Takings Clause. Start with the simplest cases, like, "We wish to build a public highway," or, "We wish to build a public school." These projects are obviously for the public at large. More complicated scenarios include projects that are for public use and benefit, but, at the same time, are privately owned, like tourist attractions and malls.
"I learned that constitutional arguments are never conclusive because a lot of constitutional arguments are based on precedents," said Tom Donahue, a political science graduate student.
Epstein emphasized this point throughout the lecture. He pointed out two cases that the court used as precedent in their opinion, Hawaii Housing Authority v. Midkiff and Berman v. Parker. The first case deals with the redistribution of land in Hawaii, and the second case concerns Washington, D.C.'s attempts to clean up a derelict neighborhood. In both cases, the court ruled that the Taking Clause in the Fifth Amendment had not been violated.
Epstein objected to the court's decision, saying, "Justice Stevens gets an 'F' on whether or not he was a bound slave to precedent." When an issue is decided so closely, Epstein claimed, it cannot be solely about precedent. It is not as simple as just falling back on precedent. Justice O'Connor, in writing the dissenting opinion, said that Kelo differed from the precedent in that the houses in New London were not a threat to the community like the oligopoly in Hawaii and the poverty-blighted houses in D.C. were. The court expanded the definition of public use in this case, far beyond what it had been before.
In the question and answer session after the lecture, Baltimore resident Christopher Ritz asked Epstein to hypothesize how Supreme Court nominee John Roberts would have voted on this case. Epstein responded that he believes that Roberts would have sided with the dissent and the property rights opinion.
Maya Garza, a junior, said that her political science professor already covered the issues, but that Epstein provided "a more detailed run through of the Kelo case."
Tom Roethke, a Baltimore resident, enjoyed the lecture overall, but had one complaint. "Sometimes he strayed and he didn't really address the Kelo case as much as I would have liked."
