Certain features in American constitutional order are so
essential to its political system that their absence would be akin to reverting
to another political system altogether. Federalism is one of those key features
of the system (Rutkow, 2006). Because of the federal nature of the government,
the American constitution is very clear on the mandate of each level of
government. Thus, a state government cannot purport to exercise a mandate
expressly reserved for the federal government. Similarly, the federal government
can only operate within the spheres reserved to it by the constitution. Equally
important in the American political system is the doctrine of separation of
powers. This principle presupposes that the executive, the judiciary and the
legislature as different branches of government are separate from each other.
By separation is meant more than the mere fact that those who constitute one
branch of government are not members of yet another branch. Critics of judicial
activism charge that it has been responsible for the whittling down of these
important doctrines of the American constitution.
A closer reading of Kelo
v. City of New London reveals that the decision supports some of the
criticisms against judicial activism (Rutkow, 2006). For instance, there has
been the charge that judicial activism waters down the principle of separation
of powers. Kelo has been seen as a case in which the judiciary usurped the
legislative power of the Congress by purporting to interpret a law but eventually
ending up with a new law instead of a meaning to the law it was actually
supposed to interpret (Rutkow, 2006). At is in Kelo was whether the City of New
London could use the concept of eminent domain to acquire land from private
individuals for a project that was purely meant for economic development. The
Fifth Amendment allows for compulsory acquisitions if it is for public use and
certain prescribed conditions are also met. Fair compensation to those whose
properties are compulsorily acquired is another condition that must be made.
In Kelo, the Supreme Court upheld the takings by the New
London Development Corporation of some lands for a certain economic development
project. A long list of precedence had established that compulsory acquisition
should only take place in blighted properties. Furthermore, the acquisitions
should be for public use. Public use would presuppose a use by a public body (Rutkow,
2006). In contrast to both the express provisions of the constitution and the
long list of precedence, the Kelo decision ruled that ‘public purpose’ could
also take the place of ‘public use.’ The development project under Kelo,
although an initiative of the government, was by a private entity. A plain
reading of the constitution would have led to an invalidation of the acquisitions
(Rutkow, 2006). The court, however, upheld the acquisitions noting that the
Fifth Amendment stipulation of public ‘use’ could still be satisfied by a
development plan that sought merely to improve economic development as
constituting public ‘purpose.’ Justice Stevens wrote the majority opinion.
That the Kelo decision elicited public uproar is
evidenced by the number of legislative initiatives that followed (Rutkow, 2006).
A number of states, including California, embarked on passing legislations to
protect private property rights. These initiatives were premised on an
understanding that Kelo had weakened private property rights. Even Justice
O’Connor, in her dissent, thought that the majority should have developed a
heightened review test in situations such as Kelo.
Reference
Rutkow, E.
(2006).Kelo v. City of New London. Harvard
Environmental Law Review, 30,261- 279.
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