Austin Bay Blog

Carla T. Main writes on the notorious Kelo decision (via Policy Review, hat tip realclearpolitics). Main is the former opinion page editor at the National Law Journal. This is an excellent, well-documented article. Read the whole thing.

Main’s lede:

For many years, the subject of eminent domain, or “takings,” was the purview chiefly of academics and a narrow subspecialty of lawyers. But after June 23, 2005, when the U.S. Supreme Court handed down its 5–4 decision in Kelo v. City of New London, Conn., the term immediately found its way into heated debates in legislative chambers and the flying mud of electoral campaigns nationwide.
In Kelo, the Supreme Court ruled that it was constitutionally permissible for the city government to take a group of working-class homes from their owners and turn the parcel of land over to private parties for the purpose of economic development. Kelo thereby tapped into deep-rooted questions of money and class, its result threatening to violate that most sacred of American domains: the home.

The Kelo decision is testament to the expanding use of police power by the state for the advancement of private interests that are often in cozy relationships with local municipal governments. To follow the path of the takings locomotive that has chugged across this country is to see how the meaning of private property has changed in the United States from its original promise as a place of sanctuary from outside interference to a contingent relationship in which property is private and unmolested only at the sufferance of local government.

Around the nation, there are thousands of ordinary citizens whose lives have been touched — and sometimes destroyed — by takings. For decades, the takings locomotive was fueled by urban renewal policies, now known by the more delicate term “urban revitalization” (and no longer practiced in 1960s-style blunderbuss fashion). But the Kelo case was fueled by a different type of fervor, and one with far greater potential for mischief in the twenty-first century: economic development.The homes of the petitioners in Kelo were marked for eminent domain not because they were blighted, but because they stood in the way of the city’s plan to increase its tax base and jazz up what officials saw as a depressed waterfront in their town…

Main says the decision has produced a “Supreme Court Phoenix.” Her definition:

What has emerged from the ashes of the Kelo ruling is the rarest of political birds, a Supreme Court Phoenix — a case that lives on in political consciousness. If the Phoenix rises high enough, it may result in state laws and a federal statute that could render the Supreme Court ruling moot.

Conservatives understood that Kelo was an assault on freedom, and an assault on the poor. Many on the left didn’t get it. Some of the civil liberatarians did, and classic Truman-type liberals were outraged.

Main writes:

Of course, if you are wealthy, or even upper middle class, there is little chance this sort of catastrophic taking will befall you. The logic of an economic development taking is that knocking down what exists now and building something fancier will increase the municipality’s tax base. Not surprisingly, economic development takings disproportionately affect the poor and the working class. That has been the observation of Jane Jacobs, the doyenne of urban planning who submitted an amicus brief in support of the Kelo petitioners.

This led to an interesting (and powerful) political coalition:

Indeed, the Kelo case brought together an odd coalition of political bedfellows. The petitioners were represented by the Institute for Justice, which has been waging a vigorous anti-eminent domain and property-rights agenda for some years now. They were supported by two dozen amicus curiae briefs from groups as diverse as the naacp, the Goldwater Institute, aarp, the Cato Institute, and the Becket Fund for Religious Liberty. They argued, each in turn, that the practice of taking private property with the sole aim of turning it over to another private party who will put it to a higher revenue-producing use unfairly affects the poor, the elderly, racial and ethnic minorities, and religious organizations (because their properties don’t produce revenue). The outrage over the decision has been equally surprising in the way it has cut across political lines.

It is fair to ask how we got here. Like many other stories that end in tragedy, this one began with the best of intentions.

Main say eminent domain law is wracked by “cognitive dissonance.” Her analysis:

Wading in the waters of the eminent domain debate is an exercise in cognitive dissonance, with opinions about the necessity for eminent domain (and, by extension, economic development takings) in real estate development at polar extremes. To those who favor its vigorous use — primarily urban planners, municipal government officials, and real estate developers — eminent domain is a matter of land assemblage, plain and simple. Land assemblage without it, they argue, is impossible. Improving outdated or even dangerous buildings and infrastructures is the goal, and private owners are the obstacle. Eminent domain is an efficient and orderly way to clear large, contiguous parcels of land. It is the only way to deal with the problem of holdouts. There is nothing to be ashamed of in using eminent domain to improve communities. The legislatures that vote for economic development takings see the improvement of the tax base as a natural extension of the public use clause. In the end, it all boils down to the price paid for the land. Moreover, the use of eminent domain often means, as a practical matter, that the local municipality underwrites a substantial portion of the acquisition costs, making it an attractive alternative to developers.1

At the other end of the spectrum is the libertarian position. In these circles one hears eminent domain described as the “despotic power,” overused and mired in greed and corruption. The public use clause of the Constitution was never meant to be taken this far, they argue. Public use means actual, perpetual ownership by the government for a clear and unequivocal public purpose. Examples would include a public road, where people have a permanent right of way, or a fort or post office permanently maintained and used exclusively by government actors (with exceptions for private entities that run public utilities).

Such a strict interpretation is a far cry from the definition of public use to be found in the case law, which gave way long ago in American jurisprudence — well before the Kelo decision — to a far mushier idea of public benefit or public purpose…

The article examines the political and legal history of eminent domain, the tie between the concept of land owning and “the American character” (read what she has to say), and suggests the New Deal helped erode political restraints on the use of eminent domain.

Here’s a hint of her land-ownership analysis:

That crucial century and a half of colonial history set the stage for Americans’ deeply personal and abiding relationship to, and their ongoing obsession with, the land. Tossing off the shackles of entailment, primogeniture and other vestiges of traditional European restrictions on land ownership, American colonists during that period saw the beginnings of a far more permanent way of owning real property that is still in predominant use today: fee simple ownership. That is, buy it and keep it — all of it — including whatever mineral riches may lie within it and whatever air rights may lie above it. Oh, and your children get to keep it too.8

Now add to the security of fee simple ownership the intoxication of abundance…

Main later observes:

In the post-Kelo world, it seems, it is de riguer for politicians to at least look as if they despise eminent domain.

This is a long, foot-noted article– and well worth the read.