Concepts• Constitutionally protected freedoms• Eminent domain• Precedent

ObjectivesStudents will be able to:

• describe how the “Takings Clause” of the Fifth Amendment to the Constitution is designed to place limits on the use of eminent domain;

• defend either the majority or the dissenting positions in Kelo v. New London.

Recommended Time One Class Period

Materials• A copy of the Fifth Amendment to

the Constitution for each student (found in most U.S. history text-books or online).

• The following handout summaries:Kelo v. New London pg. 252Majority Opinion pg. 253Dissenting Opinions pg.254

ActivityExplain to students that they will ana-lyze various aspects of the Supreme Court case Kelo v. New London.

Provide a brief introduction about the case, emphasizing that this recent court case dealt with the limits of eminent domain and that it ruled that under the Takings Clause of the Fifth Amendment, local governments can condemn pri-vate real property so that the land can be used for purposes that are primarily commercial as long as this use serves a “public purpose.” Explain that this case was decided by a 5 to 4 vote of the Supreme Court, which ruled on June 23, 2005, that it was constitutional for the city of New London, Connecticut, to condemn the property of 15 private-ly owned lots for the purpose of hav-ing a private entity (the New London Development Corporation) purchase the property and develop it to enhance the economic growth of the city. Define eminent domain as the right of a gov-ernment to take private property for public use upon the payment of just compensation.

Ensure that students have a copy of the Fifth Amendment. Then ask them if they know what the Fifth Amendment is about or if they have ever heard the phrase “taking the Fifth?” Tell them that this amendment protects more than one type of freedom. Read the entire Fifth Amendment aloud and

The following lesson plans were contributed by JA Worldwide (Junior Achievement), a notfor-profit organization that provides integrated K-12 pro-grams designed to educate young people about business and economics.

Private v. Public Rights (Grade Level: High School, 9-12)

IntroductionStudents will learn how the Fifth Amendment to the Constitution relates to private property and how the power of eminent domain was defined in a recent Supreme Court case. Students will review summaries from Kelo v. New London to gain a better understanding of the case, which dealt with the limits of a government’s right of eminent domain. They will also have the opportunity to defend one of the two viewpoints contained in this court decision.

emphasize the clause dealing with pri-vate property.

Amendment V: No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any crimi-nal case to be a witness against himself, not be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.

After reading this amendment, explain that it protects individuals from being tried for capital crimes without having a grand jury and that it pro-tects citizens from “double jeopardy” as it applies to criminal cases. It also allows a person to “take the Fifth” or not be a witness against him or herself. Finally, emphasize the clause about private property and how people are protected from the government taking their property without due process of the law and without just compensation. This clause is commonly referred to as the Takings Clause and is shown in italics above.

You may want to provide addi-tional information about the history of eminent domain in the United States. Originally, the procedure was used

Lesson Plans on the Constitution

Stacie Fieth and Neil Deason

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only to secure property for public use, such as building roads, bridges, and libraries. Over the years this changed to include taking property that is run down or crime ridden and to improve the economic value of the property, or to create urban renewal. The Kelo v. New London case was different in that the property was not run down or crime ridden, but was taken for the purpose of economic renewal.

Distribute the Kelo v. New London Summary handout and allow students two to three minutes to review the sum-mary. Separate the class into six groups. Assign each group one of the two sce-narios listed below. Three groups will use the first scenario, while the other three groups will use the second sce-nario.

1) Defend the decision of the major-ity who voted to allow the city of New London, Connecticut, to use

the right of eminent domain to condemn the private property.

2) Defend the decision of the minor-ity who were against this ruling and felt that it eliminated the dis-tinction between private and pub-lic use of property.

Next, distribute the Majority Opinion Summary and Dissenting Opinions Summary handouts to the appropriate groups. Explain to groups that they will have 10 minutes to review the summaries and develop a two- to three- minute oral presentation that defends their assigned decision. Since multiple groups are defending the same opinion it is possible similar arguments will be used throughout the presentations.

Each group should use at least three points from the handout in the presentation. Allow about 5 to 10

minutes for follow-up discussion. If time permits, consider combining the groups for a class debate. Allow groups time to organize the information and select a group spokesperson or persons to debate the opposing decisions.

Summary and ReviewAt the end of the class period, summa-rize the ideas generated by each group and draw some conclusions about the impact of this particular Supreme Court case.

Stacie Fieth is the director of Afterschool & Cap-stone Programs Development at JA Worldwide Head-quarters in Colorado Springs, Colorado. She is a former middle school social studies teacher. Neil Deason is the senior director of Classroom-Based Programs Development at JA Worldwide Headquarters. He is a former secondary social studies teacher and curricu-lum specialist. These lesson plans can be downloaded at www.ja.org. Follow the links under “Announcements,” then “K-12 Constitutional Lessons.”

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The city of New London, Connecticut, had fallen on hard economic times in recent years and was look-ing for some form of economic development. A large pharmaceutical company began construction of a

major research facility on the outskirts of the Fort Trumbull neighborhood of the city. The city government had the New London Development Corporation, a private entity under the control of the city government, consider plans to redevelop Fort Trumbull. The plan they developed included a resort hotel and conference center, a state park, retail property, and 80–100 new residences. The city government approved the plan.

The development company offered to purchase all 115 lots of property identified for the development area. The own-ers of 15 of these properties did not want to sell to the cor-poration. The owners of these lots, including the lead plaintiff Susette Kelo, were the petitioners in this case. The city of New London decided to exercise the right of eminent domain and ordered the development company to condemn the 15 lots.

The owners sued the city in Connecticut courts saying that the city had misused its eminent domain power. They argued that economic development did not qualify as public use. They felt that the right of eminent domain only applied to clear public purposes such as building a hospital or road. Eminent domain is addressed in the Fifth Amendment which reads in part, “nor shall any person … be deprived of life, lib-erty, or property without due process of law; nor shall private property be taken for public use, without just compensation.”

The interpretation of this clause in the Fifth Amendment has changed over the years in Supreme Court cases like Berman v. Parker where the Court ruled that cities can apply eminent domain to raze crime-ridden or run-down areas for urban renewal.

The Supreme Court heard the case on February 22, 2005, and ruled 5-4 on June 23, 2005, to uphold the right of the city of New London to seize the contested property for private development that served a public purpose. Justices Stevens, Kennedy, Souter, Ginsburg, and Breyer voted in the majority. Justices O’Conner, Rehnquist, Scalia, and Thomas were in dissent.

The majority based their decision largely on the belief that the economic development plan of the city of New London would provide benefits to the community including new jobs and increased tax revenue. They also believed that this plan definitely serves a public purpose meeting the public use requirement of the Fifth Amendment.

The four justices in dissent of this decision voiced their concerns about what they believe is a misuse of the right of eminent domain at the expense of private property owners. Justice Sandra Day O’Connor wrote that “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 public in the process.”

Kelo v. New London SummaryHandout

The home of Susette Kelo is shown in the Fort Trumbull section of New London Conn., Tuesday, Feb. 8, 2005. Kelo is one of several property owners in the area refusing to sell or leave their proper-ties to make way for additional develop-ment.

(AP

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Handout

The majority opinion for the Kelo v. New London case was written by Justice John Paul Stevens who was joined by Justices Anthony Kennedy, David Souter, and Ruth Bader Ginsburg. This opinion emphasized the strength

of the economic development plan that the city of New London and the New London Development Corporation had constructed. Stevens stated that this economic plan was not adopted to benefit a particular class of individuals. He stressed that the plan met the criteria of public purpose, meaning that the city of New London was taking the private property for the overall good of the community.

Justice Stevens noted that New London had become a distressed municipality over the past few decades and that unemployment was twice that of the state of Connecticut. The decision made by the pharmaceutical company, Pfizer, Inc., to build a $300 million research facility in the Fort Trumbull area, spurred the city to act. Stevens felt that the economic development plan, combined with the arrival of this company, would help reduce unemployment and increase tax revenues for the city.

Stevens also cited various Supreme Court cases as valid precedents for supporting the constitutionality of the actions made by the city of New London. He stated that the 1954 case of Berman v. Parker served as precedent for this case because it was a situation where private property was condemned as part of an urban redevelopment plan in Washington, D.C. The decision of the Court explained that a community redevelop-ment plan could include an entire area even though specific properties in the community were not rundown as was the

situation of the majority of this neighborhood. He also argued that while the Fort Trumbull area in New London was not blighted, the city was sufficiently distressed economically to justify the economic development plan. He stated, “Because that plan unquestionably serves a public purpose, the takings challenged here satisfy the public use requirement of the Fifth Amendment.”

Justice Stevens said that promoting economic develop-ment is a traditional function of a government. He also stated that “the government’s pursuit of a public purpose will often benefit individual private parties.” He used the case of Hawaii Housing Authority v. Midkiff as an example. In that case, the Supreme Court ruled that the housing authority’s decision to transfer land from wealthy landowners to other individuals was constitutional. The Court ruled in 1984 that doing this was considered a valid public use because most of the land in the state was owned by a few individuals, resulting in a significant social and economic crisis.

The majority felt that the decision provided by the Supreme Court of Connecticut was constitutional and there-fore upheld that decision. They determined that the actions of the city of New London met the criteria of the “Takings Clause” of the Fifth Amendment and that these actions served a clear public purpose. The majority opinion also emphasized that while private property was being condemned and sold to a private entity, there was no evidence of any illegitimate purposes. In addition, the opinion stated that local and state governments should maintain the right of determining public purpose when imposing eminent domain.

Majority Opinion Summary

n. Law. A government’s right to take private property for public use, usu. with compensation to the owner.

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Handout

Chief Justice William Rehnquist and Associate Justices Clarence Thomas, Sandra Day O’Connor, and Antonin Scalia voted against the ruling of the Court which supported the city of New London, Connecticut.

This decision upheld the city’s right of eminent domain and allowed them to condemn the 15 lots of private property in question.

Justice O’Connor wrote the principal dissent and was joined by Chief Justice Rehnquist and Justices Thomas and Scalia. O’Connor indicated that she felt the use of this power would result in a “take from the poor and give to the rich” attitude that would become common practice. She argued that the decision eliminates “any distinction between private and public use of property—and thereby effectively deletes the words ‘for public use’ from the Takings Clause of the Fifth Amendment.” She also stated that the Court overstepped its authority by expanding the meaning of public use.

Her dissenting opinion included the statement that “Today the Court abandons this long-held basic limitation on government power. Under the banner of economic develop-ment, 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 public—in the process.” The Court’s decision was based primarily on the premise that the economic development of New London was more important than the rights of the landowners.

Justice O’Connor went on to question the use of prec-edents cited by the majority. She felt that the Berman v. Parker

case did not really set a precedent for this case. In Berman v. Parker, the condemned property in Washington, D.C., actually presented a health and safety issue. Sixty-four percent of the buildings in this neighborhood were beyond repair. This was definitely not the case in New London as the properties were not blighted, but the city felt that the property could be used to improve the overall economic situation of the city. She also indicated that Hawaii Housing Authority v. Midkiff also did not serve as a precedent for this case. In that Supreme Court deci-sion, it was ruled that Hawaii’s Land Reform Act, which redis-tributed private property to other individuals, was constitu-tional because only a small number of individuals owned most of the state’s private property; this created inflated land prices and domination of private property by a limited number of wealthy land owners. O’Connor felt that this case met the cri-teria for “public purpose” while the Kelo case did not meet this criteria as there was no perceived harm to the general public in this neighborhood.

Justice Thomas also wrote a separate dissent, in which he argued that precedents used by the Court to justify their findings were flawed. He felt that poor communities would be the victims of eminent domain because they are less likely to use their property to the highest and best social use and are also the least politically powerful group. Justice Thomas emphasized that he was very concerned that this ruling would lead to the misuse of power by local governments. He felt very strongly that the “Takings Clause” should only be used for public purpose and that this case did not meet the definition of public purpose.

Dissenting Opinions Summary

eminent domain

Dissenting Opinions Summary

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