Comments by liberal Justice Stephen Breyer during oral arguments in the landmark Supreme Court property-rights case appear to support Justice Clarence Thomas’ assertion that the ruling essentially has erased a key clause from the Constitution’s Fifth Amendment.

The 5-4 decision Thursday allows a local government to seize a home or business against the owner’s will for the purpose of private development.

The debate centered on the scope of the Fifth Amendment, which allows governments to take private property through eminent domain if the land is for “public use.”

Until now, that has been interpreted to mean projects such as roads, schools and urban renewal. But officials in New London, Conn., argued that private development plans served a public purpose of boosting economic growth, even though the area was not blighted.

In his addition to the dissenting opinion, Thomas wrote: “If such ‘economic development’ takings are for a ‘public use,’ any taking is, and the Court has erased the Public Use Clause from our Constitution.”

Breyer, who sided with the majority, appears to make Thomas’ point in an exchange with Scott G. Bullock of the Institute For Justice in Washington, D.C., which represented New London residents whose homes are slated for demolition in favor of an office complex.

Bullock argued that for more than 200 years, the court has recognized “that there are limits on eminent domain power, that they cannot be used for private cases.”

But Breyer, citing the late Justice William O. Douglas, says, “as long as it’s an objective within Congress and legislature’s legitimate grant of power, they can do it, I mean, as long as there’s a – so why does there have to be a limit within that broad limit?

The exchange continued:

BULLOCK: Well, Your Honor, the limit is that there cannot be takings for private use.

BREYER: Of course, there can’t, purely. But there is no taking for private use that you could imagine in reality that wouldn’t also have a public benefit of some kind, whether it’s increasing jobs or increasing taxes, et cetera.

That’s a fact of the world. And so given that fact of the world, that is law, why shouldn’t the law say, okay, virtually every taking is all right, as long as there is some public benefit which there always is and it’s up to the legislature.

BULLOCK: Your Honor, we think that that cuts way too broadly.

BREYER: Because?

BULLOCK: Because then every property, every home, every business can then be taken for any private use.

BREYER: No. It could only be taken if there is a public use and there almost always is. Now, do you agree with that, or do you not agree with my last empirical statement?

BULLOCK: Well, again, the eminent domain power is broad, but there has to be limits.

BREYER: Now, that’s, of course, my question. The question is, if you agree with the empirical statement that there almost always is some public benefit attached, then my question is, why must there be a limit within that broad framework?

BULLOCK: Well, Your Honor, I think with public — with just having a simple public benefit, then there really is no distinction between public and private uses. And that is what we call upon this Court to state, for instance, in the Berman case and in the Midkiff case, which we think are really the outer limits of government’s eminent domain.

Writing in dissent of Thursday’s decision, Justice Sandra Day O’Connor said cities shouldn’t be allowed to uproot a family in order to accommodate wealthy developers.

“Any property may now be taken for the benefit of another private party, but the fallout from this decision will not be random,” O’Connor wrote. “The beneficiaries are likely to be those citizens with disproportionate influence and power in the political process, including large corporations and development firms.”

Along with Thomas, O’Conner was joined in her opinion by Chief Justice William H. Rehnquist and Justice Antonin Scalia.

Writing for the majority, Justice John Paul Stevens said, “The city has carefully formulated an economic development that it believes will provide appreciable benefits to the community, including – but by no means limited to – new jobs and increased tax revenue.”

Along with Breyer, he was joined by Justice Anthony Kennedy, David H. Souter and Ruth Bader Ginsburg.

O’Conner’s concerns about large corporations wielding power over small businesses came out in this exchange during the oral arguments.

Scalia asked the lead attorney for New London, Wesley W. Horton, whether it would be “OK to take property from people who are paying less taxes and give it to people who are paying more taxes.”

“That would be a public use, wouldn’t it?” he said.

Before Horton could answer, O’Conner broke in.

O’CONNOR: For example, Motel 6 and the city thinks, well, if we had a Ritz-Carlton, we would have higher taxes. Now, is that okay?

HORTON: Yes, Your Honor. That would be okay. I – because otherwise you’re in the position of drawing the line. I mean, there is, there is a limit. I mean –

JUSTICE ANTHONY KENNEDY: Well, if that, if that’s so then the occasional statements that we see in the writing that you can’t take from A to give to B is just wrong?

HORTON: No. I don’t agree with that. A good example is – well, there is Missouri Pacific.

KENNEDY: You think you can’t take from A to give to B, that there is some substance and force to that proposition?

HORTON: There is some force to it. I certainly wouldn’t

SCALIA: Let me qualify it. You can take from A to give to B if B pays more taxes?

HORTON: If it’s a significant amount. Obviously, there is a cost –

SCALIA: I’ll accept that. You can take from A and give to B if B pays significantly more taxes.

HORTON: With that –

JUSTICE SCALIA: You accept that as a proposition?

HORTON: I do, Your Honor.

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