29 November 2005 by Published in: Battlefield preservation 5 comments

As promised, I am today addressing the issue of the recent U. S. Supreme Court decision on eminent domain. Before I do, though, I thought I would complete the airport saga. Our plane did not push back from the gate at Atlanta’s Hartsfield International Parking Lot until 2:05 AM this morning, meaning we did not get to Columbus until almost 3:30. Until we got to the car and drove home, it was 4:00, and until we got the dogs settled down and we got to bed, it was 4:30. Needless to say, I am fading fast as the afternoon drags on. At least I’m home.

Now to the topic at hand.

The Fifth Amendment to the United States Constitution provides: “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 criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.” The final clause is the so-called “takings clause”, which makes it illegal for government entities to take private property for public use without compensating the owner of the property. The power to take private property for public use is called the power of eminent domain.

On June 23, the United States Supreme Court decided the case of Kelo v. City of New London. The issue in this case was whether the City of New London, Connecticut could use the power of eminent domain for use of the land by a commercial developer in a for-profit venture intended to stimulate the local economy. A severely divided court found that the takings clause of the Fifth Amendment in fact permitted this outcome: “In affirming the City’s authority to take petitioners’ properties, we do not minimize the hardship that condemnations may entail, notwithstanding the payment of just compensation. We emphasize that nothing in our opinion precludes any State from placing further restrictions on its exercise of the takings power. Indeed, many States already impose ‘public use’ requirements that are stricter than the federal baseline. Some of these requirements have been established as a matter of state constitutional law, while others are expressed in state eminent domain statutes that carefully limit the grounds upon which takings may be exercised. As the submissions of the parties and their amici make clear, the necessity and wisdom of using eminent domain to promote economic development are certainly matters of legitimate public debate. This Court’s authority, however, extends only to determining whether the City’s proposed condemnations are for a ‘public use’ within the meaning of the Fifth Amendment to the Federal Constitution. Because over a century of our case law interpreting that provision dictates an affirmative answer to that question, we may not grant petitioners the relief that they seek.”

Justice John Paul Stevens, the Supreme Court Justice with the longest tenure of the present roster, and the author of the Kelo opinion, later said it was one of the most difficult decisions he’s ever had to make, and also indicated that he felt it was consistent with settled law. However, it has generated a blizzard of criticism, and for good reason. Even the likes of Tom DeLay, with whom I virtually never agree on anything, has called it a dreadful decision, and it is certainly that.

Many states have already taken Justice Stevens’ invitation to enact legislation to limit this power, and the House of Representatives has passed a bill to limit funding to states that permit this sort of atrocity to occur. Interestingly, the City of New London, responding to the firestorm of criticism, has apparently even shelved the project that spawned this litigation in the first place.

Having set the stage, we now turn to the issue of battlefield preservation and the implications of the Kelo decision. Unfortunately, as pointed out last night, there is a developer in Georgia who intends to develop the Lovejoy Station battlefield using Kelo as his weapon. If this occurs, then the U. S. Supreme Court’s decision, which most people believe is one of the worst it’s ever made, will serve as a tool for taking even more battlefield land instead of protecting it–it would take private land and use it for commercial development.

Traditionally, it worked the other way around. Congress used its power of eminent domain to acquire the Stuart’s Hill parcel at Second Manassas, albeit at great cost. However, it was a way to take threatened land, and turn it into national park land, something that is clearly a “public use”. The problem here is that Kelo gives developers a tool to do just the opposite. And that scares the daylights out of me. What about land owned by, say, the Save Historic Antietam Foundation? What if a developer wanted to build a big Wal-Mart right next to the Antietam battlefield? Under Kelo, if the local government went along with it, it could happen. Irreplaceable battlefield land would be lost forever.

Therefore, please write your Senators and ask them to support legislation to roll back Kelo. Do the same with your state legislators. We, as people interested in battlefield preservation, have only one chance to do this, and we have to do this right. Help stop anyone else from having their property seized by eminent domain for commercial development.

Scridb filter


  1. Wed 30th Nov 2005 at 4:29 am

    Though I can understand that in the US the ruling caused some concern, for me- living in one of the most overpopulated areas in the world with the resulting ‘overpopulation of legislation’ concerning public space, – this doesn’t strike me as odd.

    It’s not quite my field, but the best way of preservation here is the status of national park. Alas, when economics get in the way that doesn’t help either as the example of the ‘Waddenzee’, one of the last intact wetlands in the world, -where a permit has been given to drill for oil and gas-shows.

  2. Wed 30th Nov 2005 at 9:15 am


    The problem with this case is that it runs counter to some of the most important underpinnings of U. S. society–that private property and private property rights are paramount. And therein lies the problem.


  3. Wed 30th Nov 2005 at 11:00 am

    I did some digging and I found this: http://www.scotusblog.com/movabletype/archives/2005/06/court_upholds_p.html

    Splitting 5-4, the Supreme Court ruled on Thursday that a local government may seize private property for purposes of profit-making private re-development, declaring that this constitutes a “public use” under the Constitution. (Kelo v. New London, 04-108).

    While the opinion by Justice John Paul Stevens said that a local government could not take homeowners’ property “simply to confer a private benefit on a particular private party,” the New London. Conn., project involved in this case was “a carefully considered development plan.” While the resulting project would not be open for use by the general public, the Court said, there is no literal requirement of that outcome.

    Reading the constitutional phrase “public use” in an expansive way, the Court majority declared: “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 takigs power.”e

    The Court commented: “Those who govern the city [of New London] were not confronted with the need to remove blight…, but their determination that the area was sufficiently distressed to justify a program of economic rejuvenation is entitled to our deference….Clearly, there is no basis for exempting economic development from our traditionally broad understanding of public purpose.”

    Eric, I fully understand your concerns regarding the preservation of ACW battle sites. I frear though it will be a costly operation to stop the tide of economic development.

  4. Wed 30th Nov 2005 at 5:55 pm


  5. Wed 30th Nov 2005 at 6:57 pm


    While I don’t necessarily agree with your political sentiments as expressed in your blog, many of your points are well-taken, and I’m glad to see that you took the time to write to your Senators.

    Thanks for reading, and thanks for your contribution.


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