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36.5gostin Property rights

36.5gostin Property rights - Property Rights and the Common...

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Sheet1 Page 1 Property Rights and the Common Good Gostin, Larry O. (Larry Ogalthorpe) Hastings Center Report, Volume 36, Number 5, September-October 2006, pp. 10-11 (Article) Published by The Hastings Center DOI: 10.1353/hcr.2006.0076 For additional information about this article http://muse.jhu.edu/journals/hcr/summary/v036/36.5gostin.html Access Provided by Scarsdale High School at 10/29/10 5:38AM GMT A at law Property Rights and the Common Good by Lawrence O. Gostin T T he federal and state power of eminent domain is constrained by the Fifth Amendment° s ± Takings Clause° : ± nor shall private property be taken for public use, without just compensation.T Thus government may take property only (1) for a T public use‚ and (2) with T just compensation.t This constitutional provision seems innocuous, but it has created deep fault lines between those who view the state as a vehicle for the common good and those who see protection of private property as the natural right of citizens. Much controversy has swirled around the defining question: what is a “ public use° ? This question has important public health dimensions because it helps determine when and how the state can interfere
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Sheet1 Page 2 with economic rights to promote the common good. The powers of eminent domain can be exercised for many public health purposes° to renovate unsanitary or unsafe buildings, to convert private animal shelters to serve public needs of controlling dangerous animals, and to confiscate hospitals for care or even quarantine during a public health emergency. Under the . public useT requirement, the state cannot take property solely to confer a private benefit, even if the owner were fully compensated. Classically, the state may not take the property of one person for the sole purpose of transferring it to another person. But what if the statefl s purpose were to advance the public interest in health, welfare, prosperity, or another public good, but the transfer also conferred an economic advantage on private parties? That was the case in Kelo v. New London, where the Supreme Court held that the government could confiscate private homes to renovate a decaying city.1 The case, decided late last year, elicited a howl of protest from every ideological corner. The term ² public use“ is susceptible to a narrow or broad interpretation. In its narrow sense, public use literally is t use by the public. where the government takes ownership (such as a public utility) or grants access to the public (a park, road, or railway). In its broader sense, public use is when the ° taking° benefits the public. The Supreme Court historically has preferred an expansive understanding of public use, defining it more as a . public purpose.. Court decisions have conceived of public use as virtually coterminous with the police powers.
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