“All private property is now vulnerable to being taken and transferred to another private owner, so long as it is upgraded. The founders cannot have intended this perverse result.” (Kelo vs. City of New London 26). In the 2005 Supreme Court case of Kelo vs. City of New London, the majority of the Court ruled that the city’s taking of private property to sell for private development was a constitutionally permissible use of the city’s eminent domain power under the Takings Clause of the 5th Amendment. In her dissenting opinion, Justice O’Connor chastised the majority for expanding both the authority of federal and state governments to take private property to a level never before experienced in American history. While traditionally the government was only allowed to take private property for a strictly public use such as building a school or hospital, the Kelo majority greatly expanded the definition of what constitutes a public use. Under the Kelo definition, transferring property from one private party to another who happens to have a disproportionate influence in the political process would now be permissible. While the Kelo decision undoubtedly reversed over half a century’s worth of Takings Clause jurisprudence, it remained to be seen just how much of an effect the decision would have on local communities all across the Nation. In the State of New Jersey for one, the effect of the decision was one of monumental proportions. The Kelo decision has effectively removed the final barrier to plans currently under way in 55 of New Jersey’s municipalities to condemn and clear private property in order to promote new private development (Cohen 1). However, the newly expanded powers of New Jersey’s localities to take private property are inconsistent with numerous Supreme Court decisions interpreting the Takings Clause, and completely disregard the importance of the inalienable right to private property.
On August 1, 2005 Long Branch resident Al Viviano received a letter in his mail from a local developer informing him that they intended to purchase his parcel of land in order to begin construction on a new very expensive apartment complex just a few blocks from the beach (Spoto 1). Viviano who has been living in the same house in Long Branch for over 25 years, is currently 93 years old. The piece of property where he currently resides was purchased 74 years ago by his father in order to build a vacation home for the family. “Our squawk is we don't care about the money. We want to stay here” (Spoto 3). Even though the developer offered him $303,000 to sell the house outright, Viviano refused to sell due to the fact that money is not his primary concern. While Viviano and others like him have been desperately hoping for either a piece of legislation or a court decision placing individual property rights on a pedestal, they have so far been very disappointed. Under New Jersey State law, towns are only allowed to seize “blighted” properties for redevelopment (Peet 4). Blighted properties were traditionally defined as those which were run-down or abandoned. In June 2006, the Monmouth County Superior Court handed down a ruling permitting Long Branch to invoke a “blight” designation as a legally justifiable excuse for using its power of eminent domain to seize neighborhoods for redevelopment (Kramer 2). The Court effectively expanded the definition of blighted properties in this case to include relatively small bungalows and ranch houses lined up along the shore. Thus, following in the footsteps of the Supreme Court, a New Jersey court has now given a municipality the green light to go ahead with replacing modest homes with fancier ones, and as a result is effectively forcing working-class families out of the community.
Mayor Adam Schneider of Long Branch believes that the seizure of these private properties has the potential to create a tidal wave of investment, which will in turn transform the city’s oceanfront into one of the State’s premier upper-class shore attractions (Peet 2). Schneider’s reasoning here is that transferring this property to private developers who will build more expensive properties will then generate more tax dollars for the city. The project favored by Mayor Schneider is called the Long Branch Redevelopment Zone (Peet 3). It is a $1 billion multiphase operation that would include a few small retail establishments but is primarily residential. The zone would consist of 1,200 housing units ranging from a minimum price of $400,000 for small units up to nearly $2 million for townhouses overlooking the Ocean (Peet 4). Schneider has stated that he believes that eminent domain is one tool which the city can use in order to precipitate a Long Branch renaissance. According to his reasoning, the use of this far-reaching power is justified because of the net benefits that the Long Branch Redevelopment Zone will produce for all of its citizens. However, Schneider fails to realize that improving the attractiveness of a city is not an adequate legal justification for indiscriminately violating the individual rights of its citizens. To make matters worse, the right which is being violated in this case is one of the most essential to the proper functioning of a democratic society, and one which the Framers of the U.S. Constitution feared would be arbitrarily usurped by overzealous legislators: the right to private property.
In his Second Treatise of Government, John Locke firmly established the notion that the right to private property was one of an inalienable nature: it could never be taken away by the government without a compelling reason for doing so. In fact, Locke refers to life, liberty, and estate as the three fundamental rights without which no other rights would be able to be realized by the individual (Locke 3).
From all which it is evident, that though the things of nature are given in common, yet man, by being master of himself, and proprietor of his own person, and the actions or labour of it, had still in himself the great foundation of property; and that, which made up the great part of what he applied to the support or comfort of his being, when invention and arts had improved the conveniencies of life, was perfectly his own, and did not belong in common to others (Locke 22).
Locke states that the individual person possesses a right to all of which they have worked hard to earn through their labor. This does not only include monetary compensation for working, but also the goods and services which can be purchased with those earnings. The most important good which a person purchases with the money earned through their labor is a place to live. Therefore, only under the most extraordinary of circumstances is it justifiable for the government to compel a person to forfeit their private property to the government. Another key point articulated by Locke is that a country in which a person does not have the exclusive right to their own parcel of land is effectively not a democracy (Locke 24). Applying this notion to the contemporary era, our longstanding American capitalist system would be undermined if one did not have the exclusive right to safeguard the possessions which they have earned. There is a well-known name for a political system in which private property is nonexistent: communism. Sadly our government is currently on the path towards taking on this key tenet of communism by essentially allowing local governments to take private property for any reason whatsoever. It seems as though several of the current sitting Supreme Court justices are questioning the legitimacy of sincerely protecting an individual’s right to possess private property. This begs the question, what is the origin of the right to property?
In his treatise, Locke considers property to be a type of natural right. “The state of nature has a law of nature to govern it, which obliges every one: and reason, which is that law, teaches all mankind, who will but consult it, that being all equal and independent, no one ought to harm another in his life, health, liberty, or possessions” (Locke 7). In the state of nature, people had unlimited freedom to do as they wished because no government was present to restrict their actions. Even though the state of nature was a chaotic state, it constitutes certain fundamental or natural rights upon all people. Locke articulates that the right to property can not be infringed upon by the government because this right was originally established not by an act of a legislative body, but instead by the Maker of the universe. According to Locke, since the right to property was first provided by God, only God has the power to remove this right. Due to the fact that the right to private property existed long before the time of governments, we can conclude that under no circumstances do governments provide this right to their people (and thus can not remove this right). In fact, people created governments in order to safeguard and extend the right to property. Therefore, at the moment of birth, a person obtains certain fundamental rights (including property) directly from nature itself, simply because they are human.
Locke considered the right to property as a necessary restriction on the powers of government. However, he did allow for the regulation of private property under special circumstances: the most important of which is to ensure that no one person is exercising their right to private property to the point at which it infringes upon that of another person (Dolhenty 4). According to University of Amsterdam Professor Govert den Hartogh, Locke would support the lawful redistribution of property by the government under certain rare circumstances (den Hartogh 658). In his treatise, Locke articulates two competing legitimate ends: ensuring the right to private property and guaranteeing to every citizen the benefits of political society. When these two aims conflict, it may be necessary for a group of people to forfeit their liberty to use their property as they please. Thus, while Locke implies that the government does possess the power of eminent domain, he explicitly articulates that there should exist strict limits on its use. Locke would be outraged by the type of “beneficial” property redistribution which is currently occurring in Long Branch.
“Nor shall private property be taken for public use, without just compensation” (U.S. Constitution). The Takings Clause contained within the 5th Amendment to the Constitution exemplifies the enormous amount of influence that Locke’s writings had on the contents of the ratified document. Generally being wealthy white landowners, the Framers drafted the Takings Clause primarily as a way to protect their personal property interests from government intrusion. However, they did acknowledge the government’s authority to seize private property but only for a legitimate public purpose. For example, without the power of eminent domain, the government would be unable to construct an interstate highway if any private property lies in its path (Epstein and Walker 627). Thus, the Takings Clause can be viewed as a compromise between the two opposing forces of private property and the government’s duty to provide for its citizens: it effectively permits the government to take private property for a public purpose, but guarantees that property owners will not be unduly injured. The only way in which the government can take a person’s property is to compensate that person for the fair market value of the property (Peet 1). The main judicial controversy with respect to takings has been how to define the overly broad term “public use.” While the Supreme Court has historically adopted a moderately broad definition of the term, the Kelo majority greatly expanded the definition to include takings which only have at best a miniscule relationship to the public interest.
The Takings Clause was first applied to the states in the 1897 case of Chicago, Burlington, and Quincy Railroad Company vs. Chicago. In his majority opinion, Justice John Marshall Harlan overturned the Court’s previous decision in Barron vs. Baltimore, by using the incorporation doctrine to extend the Takings Clause (Chicago, Burlington, and Quincy Railroad Company vs. Chicago). By deciding to incorporate the protections of the Takings Clause to the states, the Court articulated that it considered the right to private property to be one of a fundamental character. The 1946 case of U.S. vs. Causby serves as an example of how the Court interpreted the Takings Clause in the 20th century. This controversy arose when the federal government leased an airfield located near the Causby family’s farm. The government began to routinely fly military aircraft over the Causby’s property, which made it unbearably noisy for the family. As a result, the property could no longer be used as a chicken farm. The family sued on the grounds that the government’s actions while not physically depriving them of their property, effectively made it unusable. The Court agreed with the Causbys and stated that the government’s actions did indeed constitute a taking (U.S. vs. Causby). The principle created in this case was that a physical violation is not a necessary precondition for a taking to have occurred. As stated by Justice Douglas, the economic loss experienced by the Causby’s was equivalent to a physical violation (Epstein and Walker 631).
While the Court has many a time sided with those challenging the government’s use of its eminent domain power, it has by no means refused to provide any deference to the government. In the 1954 case of Berman vs. Parker, a private business owner challenged the District of Columbia Redevelopment Act. This act authorized the National Planning Commission to acquire land through eminent domain, and then to subsequently build roads, schools, public buildings, and houses in order to improve the welfare of its citizens. Max R. Morris filed suit due to the fact that the government planned to acquire his business and to then lease it to a private developer for redevelopment. Morris argued that the government was seizing his property for a private, not public purpose. However, the Court disagreed (Berman vs. Parker). “We cannot say that public ownership is the sole method of promoting the public purposes of community redevelopment projects” (Epstein and Walker 639). In his majority opinion, Justice Douglas stated that a state does have the authority to use eminent domain as a means to exercise its police powers. In the case at hand, eminent domain was used in order to improve the public health. Most importantly, Douglas articulated that the term public use does not require a governmental agency to conduct a land redevelopment project. The government can choose to involve private parties in the project, as long as a legitimate public end is being promoted in the process. Due to the fact that promoting the public health is an acceptable public end under the 5th Amendment, the government can constitutionally lease the land to a private developer. The primary significance of this case is that it created the precedent that the public use requirement does not necessarily mean that eminent domain can only be used to create public property (such as a hospital or road). A public purpose can be fulfilled by redistributing land from one private party to another under certain circumstances. Thus, the Berman decision effectively permitted the Kelo majority to justify its decision on the grounds that the public use does not require public ownership. However, as will be discussed shortly, the Kelo majority expanded the definition of public use far beyond that of which the Berman Court had wished for.
Beginning in the late 1980s, the Court began to resurrect the Takings Clause and narrow the definition of what constitutes a public use. Chief Justice William Rehnquist and newly appointed Justice Antonin Scalia were both strong advocates of individual property rights (Epstein and Walker 643). In 1987, a dispute arose when James and Marilyn Nollan, owners of a beachfront lot in California, wanted to build a new house on their property. The California Coastal Commission granted the Nollans the right to build their house on one condition: a strip of their property was to be set aside for use by the public to move between the two public beaches. In the case of Nollan vs. California Coastal Commission, the Court ruled that the commission’s regulation did constitute a taking of the Nollan’s property. California must pay the Nollans just compensation in order for the restriction to stand (Nollan vs. California Coastal Commission). According to Justice Scalia, while the state’s aim in providing a clear view of the beach to the public was a legitimate public end consistent with the state’s police powers, the means used by the state to achieve that goal were not narrowly-tailored to meet that objective. In other words, while the goal of the state’s use of its eminent domain powers was legitimate, the requirement promulgated by the commission was not actually related to the requirement. Scalia states that if the Nollans were required to simply provide a viewing spot on their property for the general public instead of being compelled to permit the public to walk on their property, this would not have been considered a Taking (Epstein and Walker 646). Thus, the Nollan decision effectively created an addition to the public use requirement: a regulation furthering a public use through the use of eminent domain will only be upheld if the means are not overreaching.
Furthermore, in the 1992 case of Lucas vs. South Carolina Coastal Council, the Court sided with an individual’s right to private property over the state’s interest in protecting its coastal environment. David Lucas purchased two oceanfront lots on the Isle of Palms with the intention of building single-family homes on the property. Shortly after Lucas acquired the land, South Carolina enacted the Beachfront Management Act which permitted the coastal council to prohibit Lucas and others similarly situated from undertaking new construction. “While property may be regulated to a certain extent, if regulation goes too far it will be recognized as a taking” (Epstein and Walker 648). In his majority opinion, Justice Scalia stated that due to the fact that Lucas’ property was rendered valueless by the legislation, it was indeed a taking (Lucas vs. South Carolina Coastal Council). Lucas’ intention in purchasing the property was completely undermined by the South Carolina legislature’s actions. Once again, although the increasingly conservative-leaning Court did acknowledge the protection of the environment to be a legitimate public use within the state’s police powers, it ultimately ruled that unnecessarily broad regulations will be struck down.
While the right to property was seemingly placed on a pedestal during the majority of the tenure of the Rehnquist Court, proponents of property rights suffered a substantial and unanticipated defeat in the 2005 Kelo case. After experiencing economic decline for decades, the city of New Haven, Connecticut wanted to develop its land to create jobs and increase tax revenues. The city subsequently enacted a plan in which private property would be taken using eminent domain and sold to private developers, who would later sell the property to large business interests. One section of the redevelopment plan would permit Pfizer to build a new $300 million plant on the condemned property. Contrary to Kelo’s arguments to the contrary, the Court decided in favor of the city.
It has long been accepted that the sovereign may not take the property of A for the sole purpose of transferring it to another private party B, even though A is paid just compensation. On the other hand, it is equally clear that a State may transfer property from one private party to another if future "use by the public" is the purpose of the taking; the condemnation of land for a railroad with common-carrier duties is a familiar example (Kelo vs. City of new London).
Justice Stevens states while these have traditionally been the controlling principles in Takings Clause jurisprudence, they are not applicable to the case at hand. Stevens implies that this is not a case in which the redevelopment plan confers a private benefit on a particular party, or one in which the condemned land will be used by the general public. Instead, it falls in between these two extremes. Stevens then uses the Berman precedent to justify defining public use in a broad manner, by noting that the case considered economic redevelopment to constitute a valid public end. Interestingly enough, Stevens never directly answers the question of whether or not he thinks that the New Haven redevelopment plan is an acceptable public end in his opinion: he instead asserts that due to the substantial time and deliberation put into this issue by the New Haven council, the Court should afford the city considerable deference.
Stevens’ opinion in this case is erroneous on several counts. To begin with, he circumvents numerous previous Court decisions in the area of eminent domain. We can assume from Stevens’ silence with regard to the Nollan and Lucas decisions that he did not want the Court to break completely with its past Takings Clause jurisprudence. His intention could have been to greatly extend the power of eminent domain to an unparalleled level, but only to apply to this single situation. However, Stevens’ argument inadvertently overturned the key principle established by these two previously settled cases: not every regulation furthering a public use is necessarily valid. Stevens completely ignores the section of the Nollan opinion creating the principle that unnecessarily broad regulations (in this case in the form of redevelopment plans) will not be upheld simply because they are espousing a legitimate public end. The Nollan and Lucas decisions can be viewed as creating a two part test: is eminent domain being used to advance a legitimate public use, and is it narrowly-tailored to meet that interest? In an unprecedented move, Stevens completely removed this second hurdle of the test.
Another problem with Stevens’ argument is that he misinterprets the Berman precedent. Stevens’ interpretation of Berman would provide the government with a blank check to use eminent domain to acquire property whenever and for who ever it wished. However, what Berman really said is that private property can be taken from A and transferred to private party B, as long as B serves as a middleman who subsequently transforms the property in a way in which the public experiences a tangible benefit. For example, after the land was transferred to a private developer in Berman, schools, roads, and public buildings were constructed on it. This differs from the Kelo case due to the fact that instead of a public facility being constructed, a privately owner plant was to be built on the taken property. While a very small number of New Haven residents will benefit from the employment opportunities offered by the Pfizer plant, the greatest beneficiary here is clearly the Pfizer Corporation. Stevens’ approach to Takings Clause jurisprudence only takes into account the intention of the redevelopment plan, but fails to consider its actual results. The primary result is one which the Framers feared most: a private party who has a disproportionate influence in the local political process was successfully able to usurp privately owned property for its own benefit. Thus, according to legal scholar Mark Tushnet, Stevens effectively falls victim to permitting the property of A to be transferred to B solely for B’s benefit (Tushnet 353). Furthermore, due to the fact that the Kelo majority expanded the definition of what constitutes a public use far beyond that which the Court had previous accepted, the decision may be thought of as an historical aberration: it is unlikely that the Court will continue to broaden the public use requirement in the near future (Tushnet 354).
As exemplified by Long Branch, the key implication of the Kelo decision for New Jersey is that it authorized cities to seize land under the power of eminent domain, and then redistribute it to private parties in order to construct private housing developments or even hotels. The decision directly provided Mayor Schneider with the green light to go ahead with his ambitious plan to reinvigorate Long Branch, in spite of ardent opposition from the city’s residents. “It (referring to eminent domain) was overwhelmingly popular for many years, and rather suddenly and harshly it became unpopular” (Handleman 4). While Schneider acknowledges the intense opposition in his path, he justifies his plan on the grounds that the opposition is simply the result of typical swings in public opinion. What Schneider fails to note is the reason that eminent domain has become such a controversial issue since 2005: its reach has been extended to the point at which property can now effectively be taken from a private person and given to a corporation for its personal benefit, while the private individual receives little to no spillover benefit (Handleman 6). As if NJ’s political climate were not already corrupt and its campaign contribution limits not flexible enough, now corporations will be able to take over private property in exchange for campaign contributions to greedy legislators. The idea of someone taking away someone else’s property in order to profit from the transaction is absolutely repugnant to John Locke’s notion that the right to property is one of an inalienable character.
At the conclusion of his opinion in the Kelo case, Justice Stevens did create a way for individual states to curtail the broad definition of the public use requirement: state legislatures can choose to enact laws defining the term much more narrowly, or Congress could pass laws limiting the power of the states to use eminent domain (Kelo vs. City of New London). According to Tushnet, while Stevens’ personally may not have agreed with New Haven’s redevelopment plan, he also did not believe it the job of the Court to invalidate it. It is probable that the intention of the Kelo majority was to place the eminent domain debate back into the hands of voters: voters upset about Court decisions forcing people to sell their homes should exercise their political power to stop the government (Tushnet 354). Stevens was correct in his assumption that many states would not sit idly by in the post-Kelo era: thus far, thirty states have passed legislation curtailing the authority of cities to use eminent domain (National Conference of State Legislatures). For example, the Texas law bars the government from taking private property for a public use if it is merely a pretext to confer a private benefit on a particular party. Furthermore, it outright prohibits eminent domain from being used for economic redevelopment purposes (McCarthy 2). The Texas law essentially ensures that if a situation similar to that which occurred in New London also arises in Texas, the Texas Supreme Court will strike down the taking as a violation of the public use requirement.
While the clear majority of the states have already enacted legislation or even constitutional amendments in response to Kelo, the New Jersey legislature has not yet acted decisively in this area. Seemingly anticipating the Kelo ruling, New Jersey State Senators Gerald Cardinale and Henry McNamara introduced legislation in February 2002 which was intended to provide protection to business owners whose properties had been condemned by the government (Ruilova 14). However, the bill (S-1074) died in committee and was never presented to the floor for an up or down vote. On June 8, 2006, the New Jersey Assembly passed bill A-3257, which articulates objective criteria to determine whether or not a blighted area exists (Sheridan 20). Under this bill, a city must prove that there exists a substantial health or building code violation at the site intended for condemnation as a precondition for eminent domain to be used. However, this bill has not to this date been acted upon by the New Jersey Senate. In the Senate, Ellen Karcher has introduced S-1576, which seeks to ban pay-to-play political contributions in exchange for no-bid government contracts (Strahelendorf 1). According to Karcher, it is essential for the NJ legislature to deal with pay-to-play due to the fact that it is at the root of NJ’s problem with eminent domain abuse. Combined with the recent Kelo decision, NJ’s flexible pay-to-play laws would allow corporations like Pfizer to usurp private property in exchange for campaign contributions. Once again, this bill has not yet been enacted by the New Jersey legislature. A few other measures have been introduced but not yet enacted in the Senate and Assembly regarding eminent domain: A-4392 which bars the use of eminent domain to acquire residential property under redevelopment laws, S-2739 which prohibits the use of eminent domain to condemn legally occupied residential property which meets applicable housing codes, and ACR-255 which proposes a constitutional amendment to limit the exercise of eminent domain to only essential public purposes (McCarthy 4).
While all of these bills have been referred to committees, no action is currently being taken on any of them. Apparently New Jersey’s legislators feel that an individual’s right to property is not nearly as important as ensuring increased profits for already enormous corporations. With the exception of a few, these legislators do not want to risk their campaign contributions being cut off by big business by voting to restrict the definition of a public use. As a result of the legislature’s inaction, Al Viviano will not only be forced to sell his property to Long Branch, but will effectively be forced to leave the city altogether due to the fact that he will be unable to afford the new upper-class apartments which are to be constructed. Thus, at least in Long Branch, the effect of the city’s use of eminent domain is to discriminate against low-income residents, by indirectly forcing them out of the city. While discriminating on the basis of income is clearly a violation of the Equal Protection Clause of the 14th Amendment, it is also inconsistent with the 1975 New Jersey Supreme Court case of Southern Burlington County NAACP vs. Mt. Laurel. In that case, the Court held invalid a Mt. Laurel zoning regulation which had the effect of excluding low-income residents from the township (Ruliova 9). The key application of this decision to the current eminent domain debate is that the precedent created was that regardless of a redevelopment plan’s intention, if its effect is to discriminate, then it is itself unconstitutional. Therefore, despite the fact the Mayor Schneider views Kelo as affirmation that his redevelopment plan does not violate the Takings Clause, the plan is still unconstitutional on equal protection grounds.
Realizing that the state legislature is currently unwilling to respond to the Kelo decision, New Jersey Congressman Frank Pallone has introduced federal legislation prohibiting local governments from using eminent domain to seize private property except for in rare instances (Souvall 1). If enacted, Pallone’s bill would force cities pursuing redevelopment plans to include affordable housing for middle-class families and would only permit cities to use eminent domain once all other alternatives have proven unworkable. While he believes that eminent domain has been used successfully to build schools and roads, Pallone is furious at the Supreme Court’s attempt to effectively extend this power to private uses. Even though Pallone was successfully able to propel his legislation through the House, it has been stuck in the Senate Committee on Finance for almost four months (The Library of Congress). Due to the indifference of New Jersey’s legislators towards the right to property, if this legislation dies in committee it is unlikely that New Jersey’s property owners will receive any protection from cities attempting to acquire their properties within the near future.
In her dissenting opinion in the Kelo case, Justice O’Connor created a test to determine whether or not a city’s use of eminent domain was consistent with the public use requirement. She noted that the Supreme Court had historically considered three categories of takings to be harmonious with the public use requirement. The first is when a state or city takes private property for direct public uses such as roads and parks. The second is when the government transfers private property from one private party to another, as long as the property is directly used by the public. An example of this would be property taken by a public utilities or railroad company. The final category consists of situations in which private property is taken if the precondemnation use of the targeted area inflicts tangible harm on society (Sheridan 7). If this test were used, while the taking of the blighted area in Berman would have been upheld, New Haven’s redevelopment plan would have been easily struck down. Not only is the construction of the Pfizer plant unrelated to a public use, but the property over which it is to be built is not even blighted. Applying this test to the situation in Long Branch, we would first note that the redevelopment plan obviously does not fulfill the requirement of either of the first two categories. Furthermore, while the bungalows along the beach may not be prime real estate, they certainly are not injurious to the surrounding community. The definition of blighted adopted by the Monmouth County Superior Court is contrary to O’Connor’s. According to O’Connor, a run-down house is not necessary blighted: it is only considered blighted if its use actually harms the surrounding community. Therefore, the Long Branch redevelopment plan would be struck down as well under this test. In the next case implicating the Takings Clause which arrives on its docket, the Supreme Court should reexamine its reasoning in the Kelo case using the much more concrete legal and historical basis of O’Connor’s test.
The Framers specifically included the right to property within the Due Process Clause of the 5th Amendment on an equal scale with the essential rights to life and liberty for a reason: the right to property is of such an essential nature that it should only be infringed upon by the government in the most compelling of circumstances. The Kelo decision completely reverses over 200 years of deference to the individual’s right to property. If he were alive today to witness the events in Long Branch, John Locke would feel as though the 5th Amendment were completely stripped of its meaning. While the communal notions of economic prosperity and aesthetic pleasure may contain merit within themselves, the Bill of Rights was drafted by the Framers precisely in order to protect the individual rights of the minority from infringement by the majority. The government does have a legitimate interest in promoting economic development. However, enhanced economic development is not an adequate constitutional justification for curtailing individual liberties. “Motel 6 and the city thinks, well, if we had a Ritz-Carlton, we would have higher taxes. Now is that (the taking of private property in this situation) okay” (Kelo vs. City of New London)? Justice O’Connor proposed this question during the oral argument stage of the Kelo case. According to five of the Court’s members, the answer to this question is indeed the affirmative. Due to the inaction of the New Jersey legislature as late as two years after the handing down of the Kelo decision, Al Viviano and numerous other Long Branch residents will be forced to cede their property to the government. However, their property is in reality not going to the government: much of it is now currently in the hands of the Pfizer Corporation. Thus, since at least in New Jersey property can now be taken from private party A and given to private party B for its personal benefit under the pretext that it is for a public use, the right to private property as we have traditionally known it is no long in existence in New Jersey.
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