Kelo case stirs passions on eminent domain: Columbia (MO) Daily Tribine, 8/8/05

Sometimes nothing promotes a cause like losing.

That’s what appears to have happened to the property rights movement, thanks to the backlash over the Supreme Court’s June 23 ruling on eminent domain, the government’s power to take property for public use.

"I can’t think of a reaction from both the left and the right in recent decades that’s like this case," said University of Wisconsin political scientist and law Professor Donald Downs.

The high court ruled 5-4 that when it comes to eminent domain, public use can include economic development, even private development, so long as it serves a public purpose.

The outcry over Kelo v. City of New London, Conn., has been fast and unflagging, with politicians of all stripes assailing the decision and drafting bills to curb the use of eminent domain.

The ruling managed to strike nerves across the populist spectrum, stoking conservative suspicion of government, liberal suspicion of corporate interests and unfettered development and fear among the urban poor of displacement.

On the right, House Majority Leader Tom DeLay, R-Texas, called the decision "horrible." On the left, Ralph Nader called it "unconscionable." Rep. James Sensenbrenner Jr., R-Wis., introduced a bill to withhold federal funds in cases where eminent domain is used for economic development.

The bill’s 126 sponsors are mostly Republican but include such Democrats as Dave Obey of Wisconsin, John Conyers of Michigan and Maxine Waters of California.

The libertarian group that lost the court case, the Institute for Justice, decried the decision as a sweeping setback for property rights.

But the group has been declaring political victory ever since its legal defeat.

"I think it’s going to mobilize people at the state and local level to enact significant changes to eminent domain," said Steven Anderson of the firm.

"This is very simple," he said. "Does the government have the right to take your property because someone else claims they’re going to do something better with it? That resonates with everybody."

The public’s one-sided reaction to the ruling has led to a fairly one-sided political debate about the case.

"I think a lot of public officials like the ruling," said Downs, an expert on the Supreme Court, but "it’s sort of hard for a public official to come out and say, ‘I support the power of the state against these homeowners.’ It’s a hard position to take."

One politician willing to make that case is Washington, D.C., Mayor Anthony Williams, who has been trying to use eminent domain to revitalize a shopping area in the District of Columbia.

During a meeting with reporters in the capital last week, Williams called the court decision "limited" in scope and said it effectively preserved rather than expanded the current use of eminent domain.

Williams also accused critics of feeding off a "nightmare" scenario in which "all of a sudden the evil mayor is going to come in and he’s going to kick them off their property and he’s going to turn it into a Ritz-Carlton because it’s higher-income generating."

The mayor went on:

"No elected official ... on the spur of the moment because they had a headache one morning would go out and just start taking people’s property. You’ve got state restrictions, local restrictions, all kinds of regulatory restrictions. You’ve got 18 neighborhood groups for every issue. ... Any government power can be abused. That doesn’t mean it shouldn’t be in the toolkit."

Yale law Professor Robert Ellickson, an expert on property rights, said one irony of the fallout over the Kelo decision is that eminent domain has not been abused in recent years on the scale it was in the urban renewal days of the 1960s and 1970s, when there was less political outcry over the uprooting of far more people.

Ellickson said the fallout over the Kelo case suggests "less confidence in government now than there used to be."

The scholar also argued that Kelo, because of the unexpected narrowness of the decision and the cautionary language of the majority opinion, does more to actually limit the exercise of eminent domain than expand it.

"It moves the law much more in favor of landowners than it was before, even though in this case the landowners lost," said Ellickson.

The decision’s critics disagree with that. Anderson of the Institute for Justice said the ruling opens a "Pandora’s box" when it comes to the takings clause of the Fifth Amendment. In her dissent, Justice Sandra Day O’Connor protested that "under the banner of economic development, all private property is now vulnerable to being taken and transferred to another private owner, so long as it might be upgraded."

But it’s the political reaction to the case that might have the biggest impact on how eminent domain is used in the future.

"A lot of government officials are probably going to be pretty careful about using this power because of political fall-out, and that’s a good thing," said Downs, of the University of Wisconsin.

In the weeks since the court ruled, the states of Alabama and Delaware have passed laws on eminent domain, and bills have been drafted or introduced in more than a dozen other states.

"Come January, there will be 40-plus states in session. You will see bills in most if not all of those states to address the issue," said Larry Morandi, who follows land use issues for the National Conference of State Legislatures.

As Morandi notes, that list includes "red" states and "blue" states as well as states whose legislatures are controlled by both Republicans and Democrats.

"It’s not a partisan issue," said Morandi.

Columbia Daily Tribune: www.columbiatribune.com