This week, The New York Times reported that the town of Toms River, New Jersey, is moving to condemn the Christ Episcopal Church through eminent domain to build pickleball courts and a park. Church members claim that the move was retaliation for a planned homeless shelter at the site. The case could raise one of the most infamous cases of the modern Supreme Court in Kelo v. City of New London (2005). While some have suggested the possibility of a Kelo 2.0, this may not be the ideal case for such a challenge to the Supreme Court.
The church, founded in 1865, would be seized with 11 acres of land for 10 pickleball courts, a soccer field, and a playground with a nautical theme. The move follows months of heated debate over the church’s plan for an affordable housing nonprofit on the site. However, Mayor Daniel T. Rodrick insisted that the timing is a pure “coincidence.”
The case could put the Court in a pickle in forcing a reconsideration of Kelo. I have long been a critic of Kelo and have raised various cases that might be used to reverse the ill-considered precedent. The Court has steadfastly refused to do so.
Many expressed outrage at the actions of the city leaders of New London, Connecticut, when they used eminent domain to seize the property of citizens against their will to give it to the Pfizer corporation.
This anger grew with the inexplicable decision of the Supreme Court in Kelo to uphold the abusive action. After all the pain that the city caused its own residents and the $80 million it spent to buy and bulldoze the property, it came to nothing. Pfizer later announced that it was closing the facility — leaving the city worse off than when it began.
I will not repeat my fundamental disagreement with the interpretation of the eminent domain power. For my prior testimony on the Kelo decision, click here.
There is a critical difference in this case, and I would have preferred some other cases to be the vehicle for review. The biggest difference is that this would be a more classic use of eminent domain, utilizing the property for the public purpose of a park.
However, the case does raise the question of a pretextual rationale for the use of eminent domain. Again, it is not clear whether this action will result in land being handed over in part to a private developer or business.
In the end, the pretextual aspect is interesting but does not offer a clean shot at Kelo. The public use of a park distinguished the pickleball courts from the Pfizer facility. That does not mean that this is not a worthy or major case. There are ample reasons to be concerned about the actions in this case if they are a form of retaliation for the church’s shelter plan. It just may not be the rematch that many of us have been waiting for on the question of eminent domain.
Jonathan Turley is the J.B. and Maurice C. Shapiro Professor of Public Interest Law at the George Washington University Law School, where he teaches a course on the Supreme Court and the Constitution.
THE city is playing SQUASH not pickleball!
I believe that you have neglected to consider the First Amendment aspects of the government taking a religious facility.
I was thinking the same thing. The government cannot pass laws aimed at suppressing a religion from exercising its faith,* which would seem to mean the government also cannot take property if motivated by the same purpose.
*See Church of the Lukumi Babalu Aye, Inc. v. Hialeah, 508 U.S. 520 (1993).
Is there a church taking trend?
CONDEMNED it first 😂 so no payment necessary. They really dislike homeless shelters. Can’t blame them.
In the eminent domain context, “condemn” doesn’t mean the property is in a dilapidated state, it just means the government has identified it as a property to be taken. So . . . just compensation is still required by the Constitution.
Ok, value is 4 million.
Citation please
Did the church condemn it to receive payment? 4 million?
That’s not how it works. Private parties don’t condemn properties for takings purposes. The government condemns the property they want to take, then they have to pay just compensation.
Usually if it gets that far, the owner of the property doesn’t want to sell. It’s simpler if the parties can reach an agreement. The government resorts to condemnation when the owner doesn’t want to sell, or sets an inflated sales price and won’t come down.
Eminent domain has pros and cons. The pro is that then one property owner, realizing he stands in the way of a major project, can’t hold out for an exorbitant and unfair price. The con is that people often value their property over the “just compensation” that gets set for it (called “idiosyncratic value in legalese – e.g., if it is a homestead that has been in the family for generations, or if it has special charm appeal to the owner). So “just compensation” turns out to be less than the owner’s value of his own property.
The archdiocese refuses. Park is public use. What was the offer. Work will proceed leaving the archdiocese to claim payment presumably.
Correct it’s scheduled to be razed.
It’s a good thing that’s not my job. I’d have taken it and paid nothing. 😂 see what could happen as we look at so many other issues like women’s sports, birthright etc.
I liked it better my way. What corruption is made of sometimes. Good thing there’s justices like sotomayor. 😂
How about the 11 acres and leave the establishment?
Jonathan: “Eminent Domain” has a long history. The concept was established in England under the Magna Carta–that the king could not take private property without “lawful judgment of his peers or by the law of the land”. While the Framers of our Constitution did not explicitly define eminent domain the concept was established by a long line of Supreme Court cases starting in the late 19th century–beginning with Kohl v. US (1876), US v. Gettysburg Electric Railroad Company (1896), Berman v. Parker (1954) and ending with Kelso v. City of New London (2005) allowing eminent domain for economic development.
Unfortunately for your side the Bowers case is not on the docket of the SC. Petition was denied on 3/24/25.
The governments use of Eminent domain for “redevelopment and other “public purposes” has a long and abysmally bad history.
As a rule the public benefits to the use of eminent domain pretty much never outweigh the harms.
The want a public park. Sufficient. Pay for it.
As usual Turley plays fast and loose with the facts with the deliberate intention of riling up the MAGA mob.
For several years the township has been planning to develop a large waterfront park and municipal marina in the area. They have already acquired one property, an old derelict boatworks. They are planning on acquiring 3 other adjoining properties in addition to the adjoining church property.
Currently access to the waterfront is limited by the privately held properties The township wants to open up the area to the public for obvious reasons to increase revenues from visitors, a perfectly reasonable function of municipal governments.
The township has already acquired one property and has been attempting to buy the 4 other properties, of which the church is just one.
Turley falsely claims that the attempt by the township to acquire the church property is in retaliation for their plan to build a homeless shelter on the site. In reality, the church has only recently made these plans after the township tried to acquire the property.
The church claims that the township does not want them to build a homeless shelter. However, the church does not want to build a new structure. They already have a building that they describe as the Outreach Office. They use this to feed the homeless and provide essential items like clothing and provide sanitary facilities. They want to convert the building to provide beds for 17 homeless people.
Homeless people already visit the property on a daily basis, and if the township was opposed to their presence they would not have allowed the church to build the Outreach Office.in the first place.
Of course Trump is a huge advocate of eminent domain.
In Atlantic City in the 1990’s Trump tried to get the city to condemn an elderly widow’s property for a casino parking lot.
In 1994 he tried to get the city of Bridgeport CT to condemn 5 business properties so he could build an office and entertainment complex.
His administration used eminent domain to seize 135 properties, totalling 5,275 acres to build the border wall. The administration filed 110 lawsuits to seize the properties.
Most of the landowners fought the seizures but ultimately lost the battle due to the overpowering might of the federal government.
At the end of his first administration there were 140 additional eminent domain cases still active in South Texas. The Biden administration let those cases expire.
If there was ever a use that legitimately qualified as a public use for Fifth Amendment purposes, it’s building a wall to stop an invasion of the country.
Biden didn’t do anything one way or the other, and it’s beyond the pale to imagine that he even knew anything about eminent domain in South Texas, if he even knows where South Texas is? The little politburo that actually ran the country didn’t bother to tell him anything.
Which, is why the Dept. of Energy, and FERC, have under Biden’s politburo planned for twelve high tension power line corridors throughout the Nation seizing properties, historically protected and otherwise, to include EPA protected wetlands and acquifiers, (but what about global warming and the end of the world???), in order to supply (no, not for you), sufficient power generation for the tidal wave of Data Centers.
Currently lands are being seized along the TVA, and the Maryland, Pennsylvania, and Virginia, corridors. Doesn’t matter if you live hundreds miles from it, it’s all paid for by you, (not the power company conglomerates), whether their power line plans succeed or not, (thank FERC for that, even if the power company plans fall threw you get to pay them for all their hard work planning) and whatever lands they’ve seized, and all costs involved.
Oh, and the best part. Under eminent domain, the going price they will cough up is “not” that which is estimated by the local county, or city, or state tax authorities, no in a move that would make Al Capone blush, they (under the law), can and will hire contractors (paid by the electrical company), to propose a “fair” price for your seized property and assets.
And they call Putin a crook?!? At least he’s straight up about it… You don’t give him your land, he just sends in the army to take it. No pretensions and pablum about fairness.
Actually the Dept. of Energy and TVA do not seize ownership of land for transmission lines
They negotiate for easements or rights-of-way across private land, without ownership of the land.
The vast majority of private properties have such utility easements to allow power companies to install and service power lines.
If you check your own property records at the County Recorder office, it is highly likely that your own property has such an easement.
#9. Wrong. (…and even if that were correct, an easement across your land places your property in an undesirable sale position, where less and less potential buyers would consider it, lowering the property value at best, and placing you and your family in an electromagnet radiation exposure zone.
“PSEG has said on its website and in public forums that, although the developer does not wish to use eminent domain, they may still exercise this government regulatory authority to seize private property to complete the project.”
https://foxbaltimore.com/news/local/stop-mprp-taking-fight-against-controversial-power-line-to-federal-level-marilyn-piedmont-reliability-project-frederick-county-carroll-baltimore-joanna-parkton
https://stopmprp.com/
wate.com/investigations/eminent-domain-battle-continues-for-monroe-county-families-against-tva/
#9. Wrong. (…and even if that were correct, an easement across your land places your property in an undesirable sale position, where less and less potential buyers would consider it, lowering the property value at best, and placing you and your family in an electromagnet radiation exposure zone.
“PSEG has said on its website and in public forums that, although the developer does not wish to use eminent domain, they may still exercise this government regulatory authority to seize private property to complete the project.”
https://foxbaltimore.com/news/local/stop-mprp-taking-fight-against-controversial-power-line-to-federal-level-marilyn-piedmont-reliability-project-frederick-county-carroll-baltimore-joanna-parkton
https://www.wate.com/investigations/eminent-domain-battle-continues-for-monroe-county-families-against-tva/
#9. And I did not say that DOE, is seizing the land, I said that DOE and FERC were responsible for the plans and regulations that will allow electrical conglomerates to seize the land under the guise of their save the planet from mean old oil scam, coupled with the bright new shiny object syndrome of the Data Centers. All of which are owned by oligarchs who have enough money they could well pay for their own power plants for their Data Centers. But no, you get to pay for it all.
You find all that out when they show up with a power line near you.
You really do not understand what is going on.
The data centers are being developed as part of Trump’s investment in America plan.
The owners of the data centers will be buying electricity from the power companies.
The public will not be providing free power to the “oligarchs”.
Apparently you don’t understand what is going on.
The links you provide do not support what you are claiming.
In the case of the Maryland power lines, you yourself note that PSEG doesn’t want to use eminent domain unless they are forced to do so. They simply want a right of way without owning the property.
In the Monroe County case, TVA is simply trying to establish a right of way without seizing the property. In fact the article you cite points out there is already a power line across the properties with an established right of way.
TVA is simply trying to expand an existing right of way for an upgraded transmission line.
In neither case is there an attempt to seize ownership of private property.
As you note, the expanded transmission capacity is due to increased demands from new data centers.
These are the data centers that Trump is touting and encouraging to be built as part of his new investment in America plan.
I really don’t understand your nonsensical claims about utility easements diminishing property values.
If your property has power, sewer, or water service from a public utility, then you will have utility easements on the property. Check with your local County office.
The bottom line is that utilities will not supply a property without an easement in most jurisdictions.
We do not want to unless we are forced to, is called ordinary people negotating with a gun at their head.
There are very very few situations if any where private actors should even be able to threaten government power to take your property.
I have zero problems with easements. But they should be negotiated in the free market. If you wish to say no – that is your business.
#9. Easements onto property, or outright seizure of the property, are two different things. In both cases of the PA, MD, and VA, corridor as well as the TVA, the electrical conglomerates have stated that “Oh sure sure, we’d rather not use eminent domain, but we will if we need to”, Not unlike the threat that the kid who pulls a gun on you and points it through the car window and says; “I’d rather not shoot you, just give me the keys.”
Bearing in mind that the entire fiasco is not for the benefit of the general public at all, but for the exclusive benefit for the Data Centers. I have no idea what easements your referring to on county records, but there are no easements here beyond the state and county road right of ways.
On top of that, it has been repeatedly stated that private contractors will assess property values, or easement values here, and not the government tax assessments. It does not take a lot of imagination to realize that is a corrupt system which all but guarantees the property owner will not receive “just” compensation.
And that is before one even gets to the damage of private property, by the placement of high voltage power lines, nor for sustainability of public use electrical power generation, unless one calculates that the Data Centers will use all of the existing power infrastructure due to the huge amounts of gigawatts they will consume, or the potential environmental damage to wetlands and protected watersheds, or the damage to historic properties, or the electromagnetic radiation exposure.
Yes, Trump wants the Data Centers, Trump also wants to build new power plants from all sources, which in the long run completely eliminates any critical need for what is in light of more power generation to come, a completely unnecessary adventure of property seizure. Except that, as has been pointed out by STOP MPRP, the taxpayer will fund all of this even if the venture fails. It’s a part of the FERC regulations. It is the best hope that anyone has, that Trump, who’s a bit busy at the moment, will eventually hear the uproar and put a stop to it. Undoubtedly to be contested by the Democrats who would protest a dead certain prevention to the Yellowstone Caldera’s potential eruption if Trump announced he’d found one.
If only he’d ask them to not commit suicide…
#9. Understanding what is going on? It appears that you are the one who does not understand. The MPRP is not about supplying electric to anyone’s property, nor are the electrical power line proposals for supplying sustainable power to any citizens or residents of the outlying states who do not have nor intend to build any Data Centers. It is solely about supplying power lines to Data Centers owned by conglomerates, to provide them with power at a total cost to you the tax payer for Data Centers not even located in ones own state.
And similarly you don’t understand how it is that high voltage power lines across your back yard would devalue your home or property. No reason to even bother to explain that.
Obviously, not worth continuing on with any discussion. Properties are being seized, or threatened to be seized, property owners are being hauled into Federal Court over this.
…and no, there is no plan to provide what might even remotely be called, just compensation from a corrupt system that allows for a conflict of interest when it comes to assessing just what is, just compensation.
Speaking of which I need to move…
Bring on the bulldozers
Water park sounds great in the horrible humid weather
Trump has generally used Eminent Domain – which is why the claim this is a MAGA case or that the conservatives on the court are going to favor this and the progressives oppose, or that Trump will join the plantiffs is all nonsense.
That said – later we will see the federal govenrment take property to build the border wall, and that will be allowed by the Court.
But that is NOT the issue here.
There is no national security interest in pickleball courts.
the MAGA mob
Deplorables? Semi-fascists? Nazis? Bitter clingers? Garbage?
So . . . you’re one of those.
I doubt this type of thing would rile up any “mob” except people who want the power of government to take private property to be limited to actual public uses and acquired without ulterior motives such as retaliation or suppressing religious exercise. The Episcopal Church is one of the most left-wing organizations in America. Am I a person who wants such governmental power to be so limited? Yes.
Excellent demonstration of the idiocy of left wing nuts.
As your comment makes clear it is not the RIGHT that is rushing to steal peoples property.
It is the LEFT.
Kelo was decided by the progressive majority.
All the lefts favorite nazi justices voted AGAINST seizure.
As you note the Episcopal Church is on the LEFT
As others have noted Trump has used eminent domain for private purposes.
Turley is raising an interesting legal issue which people do not agree on.
But trying to paint it as a simple Left/Right or MAGA issue just shows that those doing so to be completely clueless.
In Kelo it was Democrats seizing property for Pfiser.
In this case it is Republicans trying to seize land from a progresive church to stop a homeless shelter.
I agree with the Mayor that a pickleball court is a better use of this valueable property than a homeless shelter.
But I disagree with the use of eminent domain.
The land belongs to the church to use as they see fit.
I do not even support any power of the city to thwart building a homeless shelter, or a Brothel if that is what the private land owners want.
Abuses of govenrment power are not limited by political party.
But judicial blessing for those abuses is primarily progressive.
John Say
As usual the mentally challenged John Say makes absurd self-contradictory statements.
He makes this comment:
“As your comment makes clear it is not the RIGHT that is rushing to steal peoples property.
It is the LEFT.”
Then he proceeds to make a series of statements accusing the LEFT of stealing property.
However he also makes this claim:
” But trying to paint it as a simple Left/Right or MAGA issue just shows that those doing so to be completely clueless”
Clearly he counts himself as one of the “completely clueless”
Finally, I actually agree with John Say about something.
He is “completely clueless”
Communists are unconstitutional, aka the adverse enemy.
P.S. Pro tip: if you have relevant factual information that gives context, it’s more likely to be read if you don’t start by throwing gratuitous insults at the reader. So, is your goal to add relevant information to the discussion, or to insult people who don’t agree with you on other topics unrelated to this one?
Old.
throwing gratuitous insults
_____________________
I would guess this person went to school that taught nothing but left-wing nonsense.
I have noticed Ano is throwing more of these comments.
The Maga Mob might point out that the city seems to favor “pickleball” (whatever that is) over life-saving shelter to the destitute.
#9. Actually, it’s the radical left that should take the opportunity, but of course they won’t, to stand with the citizens against corrupt government. In this case, the RINO’s who in reality represent a third, and failing legacy party. Perhaps turn the public corner and realign Democratic values and messaging, to support average Americans for a change and lose their far left anti-American policies. Who knows! They might win an election.
Agreed. Do you think there is a chance that the RINO’s will be removed or that a backbone party might replace the Republicans?
edwardmahl
Ahhhh!!!
So now the MAGA mob is in favor of coddling the homeless so they don’t have to go out and get a job and take care of themselves
I thought it was tenet of MAGA that the homeless are freeloaders who should be forced to get a job and take care of themselves
I thought it was tenet of MAGA that the
homelessDNC paid troll George = Wally = Dennis = Franke = Mary Smith = Gigi = TDS Anonymouses etc are freeloaders who should be forced to get a job and take care of themselvesThe topic is private property rights versus the government’s authority to take property for public use. You seem to assume people who side with private property rights only do so for people whose politics they agree with. In this, you are projecting.
Those of you on the left are clueless.
Nowhere in Agenda 47 is there anything about the homeless.
What is TRUE, and generally recognized by conservatives and libertarians is that the fact of your existance does not entitle you to any claim on others.
Government may not engage in charity – because Government money is taken from people by force, and you can not use FORCE to steal.
Actual charity is a positive duty of every individual.
It is an INDIVIDUAL duty.
Each and every one of us is free to decide the extent we will fullfill that positive moral obligation as well as the specific way that we will do so.
In this case the episcopal church in Tom’s river has decided to do so by running a homeless shelter.
Neither the city nor anyone else has legitimate power to force them to do otherwise.
It is irrelevant what you or I think about the city or the church or any of this.
The land is the property of the episcopal church, and it must be free to operate a homeless shelter if it so chooses.
Thanks for facts on the scene reports.
They’ll need to purchase it at 4million dollars. It’s an up and running church and not derelict. 😂
This is not or should not be a “MAGA” issue.
I do not recall Turley mentioning MAGA or Trump in his article.
The issue here is the misuse of eminent domain.
This case is a good example.
While the case appears to be missing the Kelo element of taking private land to transfer to other private actors for an alleged public good, it is still an example of the misuse of eminent domain.
Government should NOT be deciding whether a church, a homeless shelter or a pickle ball court is the best use of SOMEONE ELSE’S property.
Bring in 😂 bulldozers.
* They condemned the site. 😂. Free land. Pretty funny…
Obviously a move to block low rent. Good idea…
More info please! Was the church abandoned and the 11 acres gone to wild? Ploy to get money at market value with unwanted development proposal.
Photos 😌
I remember the day Kelo was decided. I didn’t even know the case was at Scotus, but when it came down, even the liberal newspaper in the liberal town I work in was shocked, and ran a headline along the lines of: The Government Can Take Your Home and Give it to Private Developers!
I remember thinking, that can’t be. Even if there would be some public purpose behind such a move (e.g., raising taxes), that would not be a public use as the Fifth Amendment requires. There is a huge difference between a public purpose and a public use, public uses are things like roads and airports, and the words of the Constitution should be carefully followed, not fudged. But . . . wouldn’t you know it, our brilliant Scotus read the word “use” in the Constitution and said, wellllll, that really should have been “purpose” so we’ll just pretend it was.
“our brilliant Scotus read the word “use” in the Constitution and said, wellllll, that really should have been “purpose” so we’ll just pretend it was.”
Kansas, isn’t that what Judge Roberts said when he read the word penalty in the ACA and said “wellllll, that really should have been “tax” so we’ll just pretend it was.”
Great point SM. That’s a classic example of judicial overreach.
Yup, and in the companion Obamacare case, he said the word “State” (capitalized), which clearly means a state and not the federal government, meant the federal government. He has forever lost my respect for those two terrible decisions of his.
I smell democrats.
Actually the Toms River Township Council has 7 members.
They are all Republicans.
#9. RINO’s.
The President of this merry little band of highway robbers, is also a member of the Moose, but he isn’t one…
As #9 states below, RINOS. This is NJ. There is hardly a Republican politician in the state with ideas distinguishable from those of a mainstream Democrat of 20 years ago.
Professor,
Thank you for giving insight to why the town I’m currently stationed in is a descending sh!tpit. I earnestly had no idea the big P was involved.
I know you’ve done it in the past, but maybe it’s time to revisit some of these older cases and bring them into modern light. We all know of Scott, and now we are reminded of Kelo, but I’m sure there are a lot more. Maybe slip some law review articles in between the current-day insanities.
-Rabble
It’s ironically hilarious, because I drove right next to Fort Trumbull yesterday, looking for lunch, and was marvelling at how crappy the area is, and now I know why.
At least GD/EB is in the area to inject money, jobs, and people. Lord knows it’s impossible to get an apartment when they have one of their hiring surges.
-Rabble
Kelo is right up there with Dred Scott and needs to be revisited by the SC in due course.
There is no way pickleball is an urgent public need that should allow eminent domain to be used.
Meh, the church property is tax exempt… maybe incorporate the old church into the park as an historic site with brochures and stuff, and a gift shop.
Irrelevant.
The property is wanted by the township as part of a major redevelopment as a municipal park and marina.
It would be owned by the township.
No increased tax revenue
We should get to dig into the coffer reports of Toms river, NJ. Specifically land contractors and the mayor. I bet we’d find some interesting discrepancies.
-Rabble
It is not “just a pickle ball park.”
The township has been planning for years to build a large waterfront park and marina.
They have already acquired one property and are trying to acquire 4 other adjoining properties including the church.
The church property is just a part of the planned major redevelopment.
Civil Forfeiture and Eminent Domain are two of the stains on the American legal system.
No other 11 acre sites for the park? Seems the state would need to find a vacant site before using ED.
It is not just the church property.
The township has been planning for several years to build a waterfront park and marina in the area.
They have already acquired one property, and are trying to acquire 4 others, including the church property.
The church property adjoins the other properties that the township wants.
It is part of a planned major redevelopment.
So they just get to up and remove a 160 year old church just because they want to increase land value? What about that oh-so-revered separation of church and state you dimnuts go on and on about when it’s something you disagree with?
The church building is not 160 years old.
The church congregation was established in 1865.
The church has been at several locations over the years.
The church moved to its current location in 1962.
And the architecture certainly screams 1962.
As someone else here noted, it looks like an old Howard Johnson motel.
“. . . Toms River, New Jersey, is moving to condemn the Christ Episcopal Church through eminent domain . . .” (JT)
In a civilized society, individuals operate on the trader principle: They appeal to each others’ choice and offer value for value, which both sides are free to accept or reject. Neither side resorts to seizure by physical force.
In eminent domain’s law of the jungle, one side gets it hand on the government’s police powers — and simply confiscates what it wants.
The issue of “public use” is irrelevant. As is the supposed “just compensation.”
This may be the abuse committed commonly when the lower classes rise to power. They’re drunk with power…and without the law…
The current environs would be outta there like bat’s outta he!! because the tires on their cars would go missing and every doggone thing owned would be stolen eventually and children molested, drugs, and finally murder.
See who’s living there now. It’s just like mayor joker wants low rent in Malibu now…
Nowadays, when I read of these power plays, in this case a seizure of land, my first thought is that the noble gesture suggested has a hidden agenda that will award wealth transferred to a few “select” insiders. In this case, the contractors to build pickleball courts could be the beneficiaries; a leftover chunk of land could be diverted to build a strip center. In these modern secular days, citizens must also consider another hidden motive: the political joy of eliminating a prominent church.
In brief, primarily it’s money or power; the public good is secondary.
That doesn’t make it unconstitutional, though. Government at all levels has the power to take private property for public use as long as adequate compensation is paid. Retaliation and hidden agendas are an inherent part of politics, or in other words, elections have consequences. This seems more like a state level case.
The neighborhood didn’t want low rent housing and residents moving in. Inclusivity… everyone would move collapsing the entire area and taxes …
Perhaps some lawyer here can explain to me why the Fourth Amendment is not extended by the Fourteenth to restrain the conduct of States, as it seems to be in regard to several other Amendments, and how eminent domain is, in general, not a prima facie violation of “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures”. Preferably without a load of legalese mumbo jumbo designed to obscure the apparently clear meaning of the language of the Fourth. I suspect the true answer has a lot more to do with the full employment for lawyers movement than it does with any attempted fidelity to the Constitution.
The Fourth Amendment is extended to the states through the Fourteenth Amendment. So is the Fifth Amendment. So the interplay between them does not change depending on whether the governmental entity exercising eminent domain is federal on the one hand (in which case the Fourteenth Amendment is not needed), or state or local on the other hand.*
What you are asking is why the Fourth Amendment doesn’t prohibit takings, when the Fifth Amendment allows them. That would mean the Fifth Amendment’s Takings Clause is unconstitutional. While I personally am not a fan of takings, I also have experience reading laws, and it would make little sense to suggest that the framers of the Bill of Rights intended for the Takings Clause to have no effect at all in light of the Fourth Amendment’s prohibition on unreasonable searches and seizures.
Another way to look at this is: the word “unreasonable” in the Fourth Amendment means “constitutionally unreasonable.” So for example, an arrest based on probable cause, even without a warrant, is reasonable and therefore valid. Since the Takings Clause of the Fifth Amendment permits takings as long as they are for public use and “just compensation” is paid, any such taking is, in the Fourth Amendment’s view, constitutionally reasonable.
Again, I’m not saying I like it, only that that is how the two provisions are read together with meaning given to both as the Framers intended.
*State constitutions and statutes may further limit a state or local government’s eminent domain powers. In the wake of Kelo, many states passed laws severely restricting or eliminating the type of takings that Kelo allowed.
From the 1st use of Eminent Domain in the United States as a doctrine to seize property from landowners for use as seen fit by the State, it has been anti-Constitutional. Although I agree with Zoning and Land Use restrictions based on growth control, I fully believe Eminent Domain is Statism by another name. The Federalist that founded this country never thought the Government knew better and clearly rejected Statism.
My thoughts exactly. Why not just deny construction permits. In the otherwise free state of Florida, the legislature just passed a law prohibiting municipalities from enforcing their own zoning laws if it interfers with low cost high density housing. Socialism’s slow creep continues.
I think J G Gordon raises a good point but I think discovery will be the most important step in this case if they can prove some rataliation for the church attempting to fulfill it’s purpose as a church. If the town council was not guarded about its comments they could condemn themselves. Should be interesting.
I remember the Kelo case because one particular Justice (from the Northeast) generated a lot of heat about his comments and vote. I also believe that there was a great deal of outrage nationwide and many states moved to limit the use of Eminent Domain, especially because New London turned right around and sold the land to Pfizer. Small consolation to the people of New London who lost businesses and income for nothing?
Democrats, being the party of lawyers, are generally pretty good about confining comments expressing their true motivations to private meetings. If they screwed up, oh well. If not, a better strategy for the church might be to litigate for maximum compensation, and then build their homeless shelter elsewhere in the city with the money.
And Suzette Kelo lost her house.
All for nothing in the long run, since Pf couldn’t finish funding and left NL much worse off.
-Rabble
Kelo was our first indication of how connected Pfizer is and how tied into our representatives they are.
Maybe they wanted to clear the area …
Pfizer would have paid higher taxes than Kelo. Prudential
Like most human events the lines are blurred, and if you assume which factions are on which sides, you are likely to be wrong.
With a church that old, wouldn’t the historical significance of the building effect a decision in eminent domain also?
Good point, register such places as maralago was registered and had hurdles to jump through to renovate…
Thank you, PT, for citing the Kelo case with link to oral arguments AND opinion and site for such! Yay…
Prudential
Another reason to tax church properties. Low rent housing would lower property values in the area especially 11 acres of low rent.
Good use of eminent domain but misses the mark. Perhaps better zoning could achieve the same result. Inclusivity is double talk for integration. Print some photos of the current homes in the area. I can’t fly there without a real ID.
We don’t know enough about the demographics in the area to make an astute but humane evaluation of this situation. Is this a lively and growing congregation of a hundred families or a dying remnant of a half-dozen? The few Episcapalians left could attend services in a nearby town. There may be an emerging increase of other religions in the community, such as Mormans, Hindus or Holy Rollers. Even so, replacing a church with pickleball seems too decadent.