STATEMENT OF INTEREST OF AMICUS CURIAE
The Tidewater Libertarian Party is an independent affiliate of
the Libertarian Party of Virginia and the national Libertarian Party.
In eastern Virginia, the TLP boasts a large following
dedicated to the principles of personal and economic liberty.
The TLP’s recent electoral success is all but unmatched in third
party races anywhere in the nation.
Libertarian Robert Dean, former chairman of the TLP, polled 43%
of the vote in the 2004 mayor’s election in the City of Virginia Beach: the largest city in the Commonwealth of Virginia.
The TLP is in the forefront of coming change in
Virginia, including the greater protection of
private property rights from the dead hand of government.
This brief is filed with the consent of all parties as evidenced
by the mutual, unconditioned written consent filed with the Court.
As is well known,
Libertarians favor the return to American constitutional principles of
limited government that formed this nation and prevailed until the 20th
Century tide of collectivism invented an all-powerful Congress from
whole cloth. One of the
traditional constitutional principles the TLP advances is the narrow
meaning of the “Public Use” exceptions to private property rights as
written in the Fifth Amendment and applied to the States by the
In Virginia, the use of the doctrine of eminent
domain has not advanced in theory to the kind of practice employed by
the City of New London, Connecticut and by many other localities across
the country. Virginia law does not countenance the use of
eminent domain for economic reasons except in the instance of clearing
“blight”. Va. Code Sections
§ 36-2, § 58.1-3245.1, § 36-55.25, Berman v Parker, 348 U.S. 26
However, it may be that an open practice of
city-mandated economic redevelopment is preferable in some ways to the
narrower basis for legally imposed redevelopment sanctioned by the Berman Court and presently in use
“Blight” has become whatever the city can say it is even without
a straight face. See
Redevelopment: The Unknown Government, Chapter 2, Blight Makes Right
(Municipal Officials for Redevelopment Reform, August 1998).
As the cities of Virginia compete in their efforts to force
their poor and lower middle-class to simply leave along with their
primary education and health-care needs, the legitimacy of the law of
eminent domain is cast into doubt.
The money for both the acquiring locality and its favored
developer is simply too tempting to allow legal technicalities to get in
the way. Conveniently, the
legislature has accommodated the cities’ lump sum gold rush by all but
prohibiting judicial review of a finding of “blight” by a locality.
Virginia Code Sections § 36-27, § 25.1-220.
The choice becomes for cities like Norfolk
and Portsmouth to either export your poor at a
good pace or become a net importer of the poor.
See The Slaughter of Cities: Urban Renewal as Ethnic Cleansing
St. Augustine's Press, 2004),
American Journal of Economics and Sociology, Inc., City Without Slums
(Gale Group, January 2001.)
This brief is written to
make the case for the broader principle to apply: the principle that
real property should never be expropriated from one group of citizens by
the government for the private use and enjoyment of other citizens.
“Public Use” should be returned to its traditional meaning: only
for the construction of government-owned facilities and public utilities
The disastrous history of urban redevelopment over the past fifty years
could not be better proof that government is ill-suited to the task of
grand economic planning: something the Constitution wisely excluded from
the enumerated powers of government.
There is nothing novel in
this, even by the time of the Eighteenth Century.
The Kings of Babylonia
(circa 700 B.C.) could not commit a taking of real property even as a
dowry for a Prince. Any
taking of real property by the King had to be for a truly public purpose
and conditioned on the payment of full compensation.
Babylonian and Assyrian Laws, Contracts and Letters,
Chapter XVIII, pg. 192 (T. & T Clark, Edinburgh 1904.)
The Roman Emperors after
Caesar held dictatorial powers, but there were some limits.
Roman law always provided that the power of eminent domain could
only be used for public facilities.
According to Suetonius, Emperor Augustus (31 B.C. - 14 A.D.)
narrowed his plans to build a forum to avoid the legal difficulties with
dispossessing the owners of neighboring houses.
In the same taking, the Roman Senate sold public lands to pay the
sums due to the owners who were forced to sell, rather than refuse
prompt payment due to the lack of present funds in the treasury.
Questions of Public Law, Vol. 2, Chapter 15, Eminent
Domain. (At the House of
Johannes Van Kerckhem 1737)
The first constitution of sorts
arising in Europe following the Dark Ages memorialized the permanency
of land ownership.
The English Magna Charta, 1215 A.D., provided:
52. If anyone has been dispossessed
or removed by [the King], without the legal judgment of his
peers, from his lands, castles, franchises, or from his right,
[the King] will immediately restore them to him; and if a
dispute arise over this, then let it be decided by the five and
twenty barons of whom mention is made below in the clause for
securing the peace….
56. If [Kings] have disseised or
removed Welshmen from lands or liberties, or other things,
without the legal judgment of their peers in England or in
Wales, they shall be immediately restored to them; and if a
dispute arise over this, then let it be decided in the marches
by the judgment of their peers …
This Court in its long
history has defined “public use” as: “ … government may deem it
important to appropriate lands or other property for its own purposes,
and to enable it to perform its functions, -- as must sometimes be
necessary in the case of forts, light-houses, and military posts or
roads ….its right to do so may be …. the absolute necessity that the
means in the government for performing its functions and perpetuating
its existence should not be liable to be controlled or defeated by the
want of consent of private parties or any other authority.”
Kohl v. United States,
367, 373 (1876) citing McCullough v. Maryland, 4 Wheat 29
In America, all this changed fifty
years ago. Berman v
Parker, 348 U.S. 26 (1954).
In the case, a federal program to eliminate slums in
D.C. and redevelop sought to take
large tracts of residential and commercial property by eminent domain.
Congress’s plan showed no mercy to local landowners.
No matter the condition,
usefulness or grace of one’s home or business, it was to be expropriated
like all of the others, bulldozed and then sold to selected developers.
Speaking for the Court,
Justice William O. Douglas swept aside centuries of settled law in the
field of eminent domain by finding that land could be forcibly taken
from one citizen by the government for the private use and benefit of
other citizens. A sign of
the times: Justice Douglas declared that “If those who govern the
District of Columbia decide that the Nation’s
Capital should be beautiful …., there is nothing …. that stands in the
Out of the blue,
Berman declares that the lawful scope of public use in eminent
domain law is a matter entirely for the legislature to determine: not
for the courts to review.
See contra, Shoemaker v. United States, 147 US. 282, 298 (1892),
Monogahela v. United States,
312 (1893), Sears v. Akron, 246 U.S. 242 (1918), Rindge v.
Los Angeles, 262 U.S.
700 (1923), United
States v. New River Collieries,
341 (1923), Old Dominion Co. v. United
296 U.S. 49, 60
(1925). The historic special protections in eminent domain law were
turned on their head. Land
ownership suddenly could be abridged by government based solely on the
legislature’s view of what would be best for all.
Such dictatorial powers were extraordinary under American law at
the time of Berman and remain so today.
The departure from a traditional Constitutional limit on the
power of government was especially stark.
By far the better view of Washington D.C.’s
post-war urban renewal program came from Circuit Judge Prettyman sitting
as a member of the Federal District Court of Columbia who, with two
district court judges, conducted the trial of the Berman case.
District of Columbia, 117 F. Supp. 705 (DC
Dist. 1954.) The lower
court held that Congress’s plan would have to spare property that was
not deteriorated like the commercial building owned by the Bermans.
Judge Prettyman noted:
“ … the Fifth Amendment
authorizes the taking of private property for public use. But here is the end of government power.
That the Government may do
whatever it deems to be for the good
of the people is not a principle of our system of government.
Nor can it be, because the ultimate basic essential in
is that individuals have inherent rights, and as to them the powers of
government are sharply limited. There is no general power in government,
in the American concept, to seize private property. Hence, it is
universally held that the taking of private property from one person for
the private use of
another violates the due process clauses of the Fifth
and Fourteenth Amendments.
Id, at 716 citing Missouri Pacific Ry. Co. v. State of
Nebraska ex rel
Board of Transportation, 104 U.S. 403, 417 (1896),
A Treatise on Constitutional Limitations, Section 1124, et. seq.
(Cooley, Little Brown & Co, 8th
In the time since
Berman, this Court has not directly reaffirmed the principle that
valuable, useful real property can be taken by the government in order
to be given to others for private development.
The decision sometimes considered similar in content to Berman, Hawaii
Hous. Auth. v. Midkoff, 467 U.S. 229 (1984), is best viewed as
ultimately involving an entirely different matter.
In Midkoff, a land
ownership oligopoly was ended by the
legislature with the only remedy that could be effective and just:
forcing the sale of the land to existing tenants if the tenants so
apply. Less intrusive
attempts at land reform over many years had failed.
practices is a clearly established, proper exercise of governmental
power aimed at creating greater economic freedom for all, unlike the
practice sanctioned in Berman.
But for Berman, the Hawaii legislature undoubtedly would have
remedied the problem by relying on a police power other than eminent
domain, quite legitimately.
What has happened since
Berman is an explosion of redevelopment planning by government at
all levels using the greatly expanded scope of eminent domain law.
The tremendous future benefits always invoked in redevelopment
planning have proven quite elusory.
The end result in redevelopment has often been disappointing:
even perverse. See The
Art of Revitalization: Improving Conditions in Distressed Inner-City
Neighborhoods, (Garland Pub. Co.
2000). The loss to the
taxpayers and to the previous landowners have been colossal and, by now,
If one would believe
today that the government is uniquely positioned to create beauty, that
person should review the architecture of modern
Creating a better future is no more within the direct power of
government in our 21st Century than it was in any time past.
History demonstrates that only economic and personal freedom has
ever led to a measurably better future.
The government’s forcible purchase of real property for economic
reasons is not a social remedy that has much chance of succeeding in its
stated goal. There are many
other planning remedies that offer a greater prospect for revitalizing
neighborhoods for the long-term.
If the Court were to
retain the principles of Berman, but decide to reject New London’s practice, the distinctions to be
drawn between the two cases will do little more than confirm the radical
departure Berman represents.
The nationwide money stampede through political power-broking
would certainly continue, as it does today in
Virginia, and eventually prevail in one way or
another no matter the protective formulation the Court might conceive.
It is past time to end
the monopolistic planning practices that have corrupted the legitimate
use of the power of eminent domain.
Berman should be overruled as well as some of the language
in Midkoff. The
traditional understanding of “public purpose” should be invoked anew in
Counsel of Record for Amicus Curiae
Tidewater Libertarian Party
2019 Llewellyn Avenue
Tel. (757) 623-4200
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