Supreme Court eminent domain ruling riles private property champions

[JURIST] The US Supreme Court's Thursday ruling in Kelo v. New London [text] allowing local governments to expropriate private property for development [JURIST report] has sparked intense negative reaction from defenders of private property rights, with a number hailing this as a "dark day for American homeowners". David Keene, chairman of the American Conservative Union (ACU) [official website], called the ruling a "slap in the face" [press release] saying, "It is outrageous to think that the government can take away your home any time it wants to build a shopping mall." In an online chat [transcript] on the Washington Post website Carol DeGrasse, president of Property Rights of America, compared the ramifications of the high court's decision on middle class neighborhoods with the condemnations that ruined black communities during the 1950s and 60s.

The Institute for Justice [official website], a conservative public interest law firm, expects a strong battle over the issue [statements by the Institute for Justice and its clients] in the state supreme courts. The National Taxpayers Union (NTU) [official website], a non-partisan group that filed an amicus brief [PDF] in the case, stressed that that the implications go beyond affecting property owners to also burden taxpayers [press release].

Meanwhile, the National League of Cities (NLC) [official website] praised the decision, calling it a "victory for cities" [press release] and said eminent domain is "one of the most powerful tools city officials have to rejuvenate their neighborhoods."

University of Florida law professor Michael Allen Woolf, holder of the law school's local government chair, said late Thursday, however, that the wash of negative reaction may be unwarranted:

The only thing that was surprising about the decision was that Justice Sandra Day O?Connor wrote the dissent, supporting the homeowners. One of the reasons why the majority sided with the city of New London was that the Supreme Court, in a 1984 opinion written by Justice O?Connor herself, upheld a very broad-based use of the takings clause by the state of Hawaii, allowing property to be taken from one private party and transferred, upon payment of just compensation, to another private party.

Contrary to the horror stories spread by the supporters of the homeowners in New London, not all Americans? homes are at risk. In fact, in many states the state and local governments are restricted in their use of eminent domain power. For example, in several states, like Florida, only blighted property may be taken in cases such as this by the government. Also, it must be remembered that the United States Constitution guarantees all property owners just compensation when their property is taken. This is not a token payment, but fair market value.

Finally, the political alignments in this case are somewhat surprising. On the one hand, the five justices who refused to strike down the taking (Stevens, Breyer, Kennedy, Ginsburg, and Souter), that is, the justices who restrained themselves and allowed state and local officials to proceed, are not the most conservative members of the court. These moderate and left-left leaning judges respected states? rights, refusing to elevate federal law over local law. In the process, they ignored the pleas of homeowners and elevated the interests of the powerful Pfizer Corporation and its allies in government. That sounds like pro-business conservatism to me. On the other hand, the dissenters (O?Connor, Rehnquist, Scalia, and Thomas) attempted to play the role of judicial activists in this case and tried to use federal constitutional law to reverse the decisions of duly elected lawmakers, railing against "those citizens with disproportionate influence and power in the political process, including large corporations and development firms." That sounds like good old-fashioned liberalism to me.

The bottom line is that, after this decision, the future of eminent domain law is in the hands of state and local elected and appointed officials. While the Michigan Supreme Court did recently reverse its previous position and rendered an opinion more in line with the Kelo dissent than the majority, we can expect that most of the moves for change will now be in state legislatures, not courtrooms. And, conservatives, moderates, and liberals alike can probably agree that that is the best place to make these socially and politically charged decisions.
US Newswire also offers a statement on the Supreme Court decision by Ralph Nader [official website].

 

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