5 FF13 Property and the Supreme Court - Bill of Rights...

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Educating Young People about the Constitution

www.BillofRightsInstitute.org

Founders Fellows 2013

Lesson Slideshows

Property and the Supreme Court

Founders Fellowship 2013

Program Faculty

Robert M.S. McDonald,

Associate Professor of History, United States Military Academy

Lawrence W. Reed,President, Foundation for Economic

Education

Chip Mellor,

President and General Counsel of the Institute for Justice

Washington, D.C.July 22 - 26, 2013

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Mission Statement

Established in 1999, the Institute is a 501(c)(3) not for profit charity focused on providing educational resources on America's Founding documents and principles for teachers and students of American History and Civics. Our mission is to educate young people about the words and ideas of the Founders, the liberties guaranteed in our Founding documents, and how our Founding principles continue to affect and shape a free society.

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Thursday, July 25, 2013

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Chocopec Debrief:

• Why did you vote the way you

did?

• What happens in the real world

when businesses collude?

Chocopec Lesson:

• People (and businesses made of

people) make decisions based on

what they believe will further

their self interest.

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The Founders were extremely concerned with protecting private property as a cornerstone of a free society. Throughout American history, the Supreme Court has heard numerous cases involving government’s power to take property for public use.

Critical Engagement Question: How does the Constitution protect property? p. 11

Property, the Bill of Rights, and the Supreme Court

Primary Source Quotations, p. 11

“As a man is said to have a right to his property, he may equally be said to have a property in his rights.”

James Madison, 1792

“Ultimately property rights and personal rights are the same thing.” Calvin Coolidge, 1914


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Objectives: (Two-day lesson plan)

Examine foundations of private property protections.

Understand the Fifth Amendment’s protection of private property.

Understand the facts of major U.S. Supreme Court cases involving property rights.

Analyze James Madison’s Property and Samuel Adams’s The Rights of Colonists.

Evaluate Supreme Court rulings in United States v. Causby(1946), Nollan v. California Coastal Commission (1987), and Kelo v. New London (2005).


Working with a partner or two, develop a definition of “property” and list some examples.

Discuss with your partners--Handout A: English Origins of Property Protections.

What kinds of property are protected in these documents?


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Fundamental Orders of Connecticut (1639)Massachusetts Body of Liberties (1641)“A man’s home is his castle…” James Otis

(1761)“No taxation without representation…” James

Otis (1765)

Declaration’s indictment against the King (1776)– taxation without consent– seizing ships– denial of due process in Admiralty

Courts


British tradition and respect for property rights

Work in groups of six on Handout B: Samuel Adams, James Madison, and Property.

Three partners will read Adams’s The Rights of Colonists and three will read Madison’s Property.

Read your passage, then discuss and share your findings with your group.

What important contribution does each author make to our understanding of “property rights”?


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Still working with your group, discuss Handout C.

Note/circle words and phrases that secure protections for physical property.

Observe/underline words and phrases that secure protections for the other kinds of property that Madison mentions.

The lesson plan, (p. 12) calls for students to represent either “physical property,” or “the most sacred property” (conscience). Read the Bill of Rights aloud and have students stand when they believe their type of property is mentioned.


“No person shall…be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.”

Work with your group to discuss Handout D: The Takings Clause Up Close.

What kinds of purposes could be considered “public use?”

Railroads

Military bases

Highways

Public schools

Public libraries

Public utilities


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Using Handout E, role play the scenario ( 1, 2, or 3) assigned to your group. After the role play, discuss the following questions:

Is the situation being described a “taking” of property?

Is the situation a constitutional exercise of government power?

If so, what would be the best way to determine just compensation?


Handout F--Scenario One: Nollan v. California Coastal Commission (1987): “…where individuals are given a permanent and continuous right to pass to and fro, so that the real property may continuously be traversed,” there is a taking of property. Government could not make the public walkway a condition of the building permit. “If it wants an easement across the Nollans’ property, it must pay for it.”


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Handout F--Scenario Two: United States v. Causby (1946): The Court found a taking when low-flying jets at an airbase made farming impossible on nearby land even though the government never actually claimed the land itself. The Court held, “As a result of the noise, respondents had to give up their chicken business... The result was the destruction of the use of the property as a commercial chicken farm.” The Causbys were entitled to just compensation from the government. “It is the owner’s loss, not the taker’s gain, which is the measure of the value of the property taken.”


Scenario Three: Kelo v. New London (2005) The Court agreed with the city of New London and held that the government could take land from citizens in order to turn it over to a private developer. In this contentious 5-4 decision, the Court explained that it had “rejected a literal requirement” of the phrase “public use” in the Takings Clause of the Fifth Amendment. The phrase “public use” could be interpreted as “public benefit.” Therefore, the government can take private property from an individual in order to turn it over to a private developer because the taking will result in “economic development” for the region.


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Wrap-up questions—see p. 13

How does the Kelo decision differ from the others?

Is redevelopment through eminent domain the only way to revitalize a neighborhood? Is it the best way? What other methods can you think of?

Homework and Extension ideas—p. 14.

Respond to Justice O’Connor’s statement in her dissent: “The specter of condemnation hangs over all property. Nothing is to prevent the State from replacing any Motel 6 with a Ritz-Carlton, any home with a shopping mall, or any farm with a factory.”


Kelo v. New London (2003) p. 97

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Elements of The Bill of Rights Institute DBQ approach:

Within each Landmark Case DBQCase Background Summary:

introduces historical background for caseKey Question:

focuses attention on constitutional impactDocuments:

•historical•case precedents•case documents•case related material•Each document has a scaffolding focus question.

Promotes teacher choice and flexibility in design and use of materials.

Teaching the DBQ Lesson Plan—for APUSH

Overview/Outside Info—what you know beforeyou look at the documents

Information about Kelo’s position

Information about City of New London position

Evidence Source Evidence Source

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The Supreme Court and Public Use

Berman v. Parker (1954)

Kelo v. New London (2003)

Read case background essay, p. 97, and then skim the remainder of the lesson, Documents A - M.

Read background for Kelo, p. 97Skim documents A-M, pp. 101 - 112

• Examine Case Briefing Sheet, p. 231• Note other resources in Teacher Toolbox

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Initial observations after a quick look at the documents

• Time span: 1765 - 2010

• Types of documents: law, Fifth Amendment, references from James Madison, Court decisions, newspaper articles, map

• Documents are short.

• Usefulness in your classroom?

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Kelo v. New London (2003)

Evaluate the Supreme

Court’s ruling in Kelo v. New London (2003)

Kelo v. New London Key Question, p. 100

Susette Kelo in front of her little pink house, which was saved and moved to a new location in New London.

Photo courtesy of the Institute for Justice.

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D. Background, Berman v. Parker, 1954, p. 103

1945—Congress enacted District of Columbia Redevelopment Act in order to address blight in D.C.1950—Redevelopment Land Agency issued revitalization plan for D.C.’s southwest quadrant•5000 people lived in the area, 98% African American•58 % of residential units had only outdoor toilets•29% had no electricity•64% of dwellings were beyond repair

Image courtesy Asheville Condemnation Attorneys

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D. Background, Berman v. Parker, 1954

Redevelopment Land Agency Proposal• Take all property in the designated area by eminent domain• Demolish houses and businesses• Create parks, streets, schools• Lease or sell remaining land to private developers who would carry out the rest of the Agency’s plan, including construction of low-rent apartments

Berman and other owners of successful businesses in the area brought suit against the planning commission, on the grounds that their property was not slum housing or otherwise blighted and it was unconstitutional for government to take property from one private owner to turn it over to another, even if the original property owner was paid.

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D.C.’s southwest quadrant after renewal

Results: Berman v. Parker

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Document Analysis, p. 103

D. Unanimous ruling in Berman v. Parker, 1954: It is within the power of the legislature to determine that the community should be beautiful as well as healthy, spacious as well as clean, well balanced as well as carefully patrolled. In the present case, the Congress and its authorized agencies have made determinations that take into account a wide variety of values. It is not for us to reappraise them. If those who govern the District of Columbia decide that the Nation's Capital should be beautiful as well as sanitary, there is nothing in the Fifth Amendment that stands in the way. Once the object is within the authority of Congress, the right to realize it through the exercise of eminent domain is clear.

Warren Court, 1954

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Detroit: 1980 p. 104• Long-term economic downturn and

high unemployment

• Planned to sell a large tract of land to

General Motors

• New GM factory --promised to provide

6000 permanent jobs

• Poletown was home to 4,200 people who

were mostly Polish immigrants, 16

churches, 144 businesses, 1,500 homes,

and a major hospital.

Public purpose? Expanded tax revenue

would be generated by the factory.

Green line designates Poletown. Red line shows original GM property.

(Photo courtesy of Affordable Housing Institute)

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E. Poletown Neighborhood Council v. Detroit, p. 104

1981--The Michigan Supreme Court, issued a per curiam opinion, with one dissent.

“Detroit contends that creating an industrial site will…alleviate and prevent …unemployment and fiscal distress. The fact that it will be conveyed to and ultimately used by a private manufacturer does not defeat this predominant public purpose.

The power of eminent domain is to be used in this instance primarily to accomplish the essential public purposes of alleviating unemployment and revitalizing the economic base of the community. The benefit to a private interest is merely incidental. If the public benefit was not so clear and significant, we would hesitate to sanction approval of such a project.”

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Graphing Property Rights, p. 113

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Scaffolding QuestionsWork in groups to consider the documents and their scaffolding questions.

Group 1: Documents A, B, C p. 102-102

Group 2: Documents D, E, F, K p. 103-105, 110

Group 3: Documents G, H, I, J p. 106-109

Group 4: Documents L, M p. 111-112

Report on your discussion:

•Answer the scaffolding questions.

•Explain how the scaffolding questions may be useful in helping understand the document.

•How does this document help us understand the issues involved in affirmative action for college admissions?

All groups: As time permits, discuss map: The Issue Endures, p. 114

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Graphic Organizer, p. 234

Kelo Both sides New London

Which attorney would be most likely to use each document and why?

Moot Court: Kelo Case, p. 235Divide class into 3 groups:

– 9 Justices

– Advocates for petitioner

– Advocates for respondent

Give time for planning: Justices decide what questions they want answered in oral arguments; advocates for each side plan their oral arguments.

Allow equal time for presentation of each side, including interruptions from Justices (or not—your choice).

Justices deliberate and announce decision. Deliberation is actually done in private Supreme Court conference, but you decide how to do it in class.

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Oral Arguments, p. 235At the beginning of each session, the Marshal of

the Court (Court Crier) announces:

"Oyez! Oyez! Oyez! All persons having business before the Honorable, the Supreme Court of the United States, are admonished to draw near and give their attention, for the Court is now sitting. God save the United States and this Honorable Court!"

The Chief Justice will begin the oral argument phase by saying, “Petitioner, you may begin.”

Writing a good thesis statement—– Analyze the prompt: “evaluate.”

– Fully address all parts of the prompt.

– Clearly take a side—make a declarative statement that one thing was more important, more persuasive, etc. than another. Since the verb in the prompt is often something like “assess” or “evaluate,” the thesis statement should show which side the writer takes.

– Suggest a “table of contents ”or road map for the essay—show what elements enter into consideration.

– Be sure that the rest of the essay proves the thesis statement with abundant and persuasive facts and evidence.

Tips for Thesis Statements

See Teacher Toolbox, p. 236

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U.S. Constitution: Fifth Amendment, 1791 p. 101

No person shall…be deprived of life, liberty, or property, without due process of law; nor shall

private property be taken for public use, without just compensation.

Summary of the Kelo Decision, p. 107In a 5-4 decision, the Court upheld the takings.

Writing for the majority, Justice Stevens explained that simply taking A’s property and giving it to B is unconstitutional. Yet this taking was executed pursuant to a “carefully considered” development plan and therefore satisfies the public use requirement.

Stevens explained that the Court long ago rejected the 19th-century “common carrier” idea – that “public use” means “used by the public.”

He cited Berman v. Parker and Midkiff to explain that legislatures are entitled to determine what “public use” entails: “For more than a century, our public use jurisprudence has wisely eschewed rigid formulas and intrusive scrutiny in favor of affording legislatures broad latitude in determining what public needs justify the use of the takings power.”

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Summary of the Kelo DecisionHe recognized that while the properties and area were not

blighted, the city determined “that the area was sufficiently distressed to justify a program of economic rejuvenation” and “promoting economic development is a traditional and long accepted function of government” which cannot be distinguished from other public purposes that the Court has upheld.

Stevens said that the Court does not review the plan itself: “It is not for the courts to oversee the choice of the boundary line nor to sit in review on the size of a particular project area. Once the question of the public purpose has been decided” the plan is totally at the discretion of the legislative branch.

Finally, he said that people can work within their states to protect their property from condemnation: “We emphasize that nothing in our opinion precludes any State from placing further restrictions on its exercise of the takings power…. the necessity and wisdom of using eminent domain to promote economic development are certainly matters of legitimate public debate.”

Kelo Dissent—Justice O’Connor, Document I, p. 109

“Under the banner of economic development, all private property is now vulnerable to being taken and transferred to another private owner, so long as it might be upgraded—i.e., given to an owner who will use it in a way that the legislature deems more beneficial to the pubic—in the process.” Property could be transferred for “increased tax revenue, more jobs, maybe even aesthetic pleasure.”

She explained that Berman and Midkiff (in which she wrote the majority opinion allowing the taking) were different from this case: “In both those cases, the extraordinary, precondemnation use of the targeted property inflicted affirmative harm on society—in Berman through blight resulting from extreme poverty and in Midkiff through oligopoly resulting from extreme wealth. And in both cases, the relevant legislative body had found that eliminating the existing property use was necessary to remedy the harm. Thus a public purpose was realized when the harmful use was eliminated. Because each taking directly achieved a public benefit, it did not matter that the property was turned over to private use. Here, in contrast, New London does not claim that Susette Kelo’s and Wilhelmina Dery’s well-maintained homes are the source of any social harm.”

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Kelo Dissent—Justice O’Connor

Finally, she explained that the majorities call for people to work through their state legislature to protect their property was unrealistic: “The beneficiaries are likely to be those citizens with disproportionate influence and power in the political process, including large corporations and development firms. As for the victims, the government now has license to transfer property from those with fewer resources to those with more. The Founders cannot have intended this perverse result.”

Echoing Justice O’Connor’s dissent, Thomas portrays the majority as protecting the powerful and uncaring about the poor.

“Allowing the government to take property solely for public purposes is bad enough, but extending the concept of public purpose to encompass any economically beneficial goal guarantees that these losses will fall disproportionately on poor communities. Those communities are not only systematically less likely to put their lands to the highest and best social use, but are also the least politically powerful.”

Kelo Dissent—Justice Thomas, Document J, p. 109

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THE ISSUE ENDURES, p. 114

1. How does this map illustrate the principle of federalism?

2. This map was created by the Institute for Justice, which represented SusetteKelo. Why do you think they label some states as needing eminent domain reform?

Read background for Kelo v. New London, (2005)

Divide the 13 documents A-M so that a pair of students studies each document to share with the

class.

Report on your document: 1. What is the main idea?

2. How will it help to address the Key Question?

Alternate Lesson Plan for Kelo v. New London (2005)

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DebriefLesson strategies•Graphic organizers to analyze documents•Key questions: “doing history” by answering constitutional questions in step-by-step format•Analysis & evaluation of relative importance of opposing sides•Tips for writing thesis statements

DBQ StrategiesThink like a lawyer

Moot Court

Divide & conquer for main idea

Scaffolding questions

Usefulness for your classroom?

Inspirations for adaptation?

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A Market for Oil Debrief

• What happened???

A Market for Oil Lesson

• Prices adjust to meet the

demands of buyers and sellers.

5 FF13 Property and the Supreme Court - Bill of Rights...

Documents

Transcript of 5 FF13 Property and the Supreme Court - Bill of Rights...