Kelo Revisited

It's interesting to see how a Supreme Court decision could allign totally disparate political groups behind a concept. It shows not only that traditional labels aren't always applicable in politics, but that some issues transcend politics altogether.

Kelo is just that issue. Now, while many folks don't quite get the issues involved, they do understand at some level that if you own real estate, you could find your real estate coveted by someone with deeper pockets than yourself and who has an economic development plan that would generate more tax revenue than if things remain as they currently exist. So, the local municipality would begin eminent domain proceedings in order to execute an A to B transfer that would not truly be a just taking for the public good because it would simply be shifting property from one private owner to another, though under the guise of economic development.

Now, this isn't to say that municipalities haven't been doing this kind of thing for a long time.

They have. In fact, NYC has been doing this for years - though they have not relied on the economic argument nearly as much as the 'blight' argument. The economic development argument was a throw-in on justifying the need to seize property. Kelo gives municipalities an additional tool in order to seize property.

In her outraged dissent, Justice O'Connor failed to note that the Supreme Court's erosion of property rights began a long time ago. Before the 1954 Berman decision, with some exceptions, private property could be taken through eminent domain only for public uses. In Berman, however, the court declared the words "public use" to mean "public purpose," as defined by local officials. Soon the definition of "blight" became highly elastic, as governments began condemning working- and middle-class neighborhoods simply because they were desired by private interests. As Justice Clarence Thomas noted in his dissent in Kelo: "Of all the families displaced by urban renewal from 1949 through 1963, 63 percent of those whose race was known were nonwhite, and of these families, 56 percent of nonwhites and 38 percent of whites had incomes low enough to qualify for public housing, which, however, was seldom available to them."

Wouldn't it be interesting to see how many Liberals and Democrats (not mutually exclusive btw), would actually take the O'Connor or Thomas position here despite the fact that Thomas gave the most persuasive argument against Kelo.

The definition of a "blighted" area eventually became so expansive that it 1981 the Michigan Supreme Court allowed the city of Detroit to raze a stable neighborhood called Poletown to make way for a General Motors plant. The Michigan Supreme Court finally repudiated that decision last year, in a ruling that noted that property rights would no longer exist in America if cities could simply take property when they found a use that yielded higher taxes or other benefits.

By contrast, the U.S. Supreme Court has now decided not to overturn its Berman precedent and indeed has expanded the deference it gives to local governments to determine what "public use" means. But states and localities are free to take their own steps to preserve private property rights. Nine states--Arkansas, Florida, Illinois, Kentucky, Maine, Michigan, Montana, South Carolina and Washington--already forbid the use of eminent domain for economic development except in narrow circumstances. The Institute for Justice has launched a $3 million "Hands Off My Home" campaign to convince other states to join them. In Georgia, Gov. Sonny Perdue is demanding a full review of eminent domain. The Texas Legislature has already debated a constitutional amendment that would ban the use of eminent domain solely for economic purposes.

No one argues that struggling cities or states don't have a right to improve themselves through redevelopment. But the new civil-rights coalition forming in reaction to the Kelo decision says that need can't justify land seizures from which politically connected players stand to gain at the expense of individual civil rights. If the half-century since Brown v. Board of Education has taught us anything, it is that some rights are and must remain nonnegotiable.

It is good to see states pursuing this issue, but not all states have these protections, and the level of protection to real estate owners will continue to vary from state to state.