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- Title
DOES FIVE EQUAL THREE? READING THE TAKINGS CLAUSE IN LIGHT OF THE THIRD AMENDMENT'S PROTECTION OF HOUSES.
- Authors
Sprankling, Thomas G.
- Abstract
The Supreme Court's 5-4 decision in Kelo v. City of New London broke new ground by holding that the seizure of owner-occupied homes as part of a plan to foster economic development was a taking for "public use" under the Takings Clause of the Fifth Amendment. Kelo's many critics have yet to clearly articulate a constitutionally grounded rationale for why homes should receive special protection from condemnation. This Note argues that the Third Amendment's solicitude for the home provides a constitutional basis for distinguishing between homes and the other forms of "private property" covered by the Takings Clause. The Amendment, which provides that "[n]o Soldier shall, in time of peace be quartered in any house, without the consent of the Owner, nor in time of war, but in a manner to be prescribed by law," shares both historical and textual links with the Clause. These connections suggest the judiciary should apply a form of heightened scrutiny similar to the "meaningful" review standard proposed by Justice Kennedy's concurring opinion in Kelo when determining whether the government's seizure of an owner-occupied home is for "public use."
- Subjects
UNITED States; KELO v. City of New London; EMINENT domain; PROPERTY rights; REAL property; PUBLIC use; UNITED States. Supreme Court
- Publication
Columbia Law Review, 2012, Vol 112, Issue 1, p112
- ISSN
0010-1958
- Publication type
Article