A year after Kelo
By Linda Chavez
Feb 22, 2006
As anniversaries go, this one might not be up there on your list of
memorable dates, but it should be. One year ago this week, the
Supreme Court heard arguments in a case that someday may affect your
life in a devastating way: Kelo v. City of New London.
The case involved eminent domain -- the power of the government to
seize private property, ostensibly for public use. I say ostensibly
because the Court's 5-4 decision significantly expanded the power of
local governments to take whatever homes, businesses, even farms
from private parties and give them to other private parties to build
offices, luxury condos and hotels -- or pretty much whatever else
the new owners (or in some cases leaseholders) choose to do with the
property.
Although the home and business owners whose property is taken
receive compensation, it is often well below true market value
because they have no choice in whether to sell once the government
has exercised eminent domain. While eminent domain makes sense when
it is used to clear the way for such things as railroads or
utilities, it's hard to see how the "public use" requirement
embodied in the Fifth Amendment is satisfied when, as former Justice
Sandra Day O'Connor noted in her dissent, the government is simply
replacing a Motel 6 with a Ritz-Carlton.
The Court's decision in Kelo sparked considerable controversy and
may be the one recent public policy debate that united many
conservatives and liberals. Conservatives generally don't like
government interfering in private transactions anyway, and the
thought that a city or county could decide to condemn otherwise
sound property in order to increase tax revenue by replacing it with
a more valuable property strikes many conservatives as a good
example of the rapacious appetite of Big Government.
Liberals, on the other hand, see this as government choosing the
wealthy over the poor and middle class, Big Business triumphing over
the Common Man, whites displacing blacks and other minorities.
Ironically, though, most of the Supreme Court justices who sided
with New London, Conn., in allowing the city to condemn 15 homes in
a waterfront neighborhood in order to allow a developer to build a
luxury hotel, condos and office buildings were from the liberal wing
of the Court. Former Chief Justice Rehnquist and Justices Scalia and
Thomas joined O'Connor in dissenting from their more liberal peers,
Justices Stevens, Souter, Ginsburg and Breyer, with Justice Kennedy,
often a swing vote, joining the liberals this time. One of my
liberal friends wrote me the day the decision was handed down both
amused and confused that she found herself on the same side of the
argument with Justice Thomas instead of Justice Ginsburg.
This type of strange bedfellows reaction has spurred a new coalition
of groups fighting eminent domain abuse in the wake of Kelo. The
NAACP, the League of United Latin American Citizens and the National
Council of Churches have joined with the Institute for Justice
(which represented plaintiffs in the original Kelo case), the Farm
Bureau and the National Federation of Independent Businesses, among
others, to form the Castle Coalition, a grass-roots organization
that hopes to stop eminent domain abuses in local communities.
Some 43 state legislatures have passed or will soon consider eminent
domain reform, including Alabama and Texas, which specifically
limited the kind of development scheme allowed by Kelo. Even Justice
Stevens, who wrote the majority opinion, said shortly after the
decision that he thinks exercising eminent domain merely for
economic development is bad public policy and hopes legislatures
will find a political solution. "My own view is that the free play
of market forces is more likely to produce acceptable results in the
long run than the best-intentioned plans of public officials," he
said, noting that if he had been a legislator instead of a justice,
he would have opposed what the city did in the Kelo case.
Unlike some Supreme Court decisions, the worst effects of Kelo can
be limited if the citizenry acts. Unless states move quickly to stop
the misuse of eminent domain, no one's home, farm or business will
be safe from greedy government officials and big developers looking
to make a killing at ordinary citizens' expense.
Linda Chavez is Chairman of the Center for Equal Opportunity, a
Townhall.com partner organization, and the author of Betrayal: How
Union Bosses Shake Down Their Members and Corrupt American Politics.
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