Despite fearful rhetoric in the press, the Supreme Courts decision in Kelo v. City of New London...

“Despite fearful rhetoric in the press, the Supreme Court’s decision in Kelo v. City of New London did not expand the use or powers of eminent domain.” –Donald J. Borut, Executive Director, National League of Cities[1] Kelo did change the law—and the Supreme Court’s decision threw open the floodgates for eminent domain abuse throughout the country. Commentators are right that as a matter of practice, local governments have been using eminent domain to assist private developers on a regular basis for years. Defenders of eminent domain for private development often claim that because local governments have historically used condemnation powers for private use, the nation’s highest court simply reaffirmed the constitutionality of their actions. Nothing could be further from the truth.

As Justice Sandra Day O’Connor emphasized in her dissenting opinion, the courts had previously recognized just three discrete categories of eminent domain condemnations prior to Kelo: (1) condemning land and transferring it to public ownership (such as a road or park), (2) condemning land and transferring it to a privately-owned common carrier (such as a cable or utility company), and (3) condemning land to eliminate an identifiable public harm (such as an abandoned, rat-infested home that poses a public health risk).[2] Kelo created a fourth and much broader category of condemnations—namely that transferring any land from one person and giving it to another is justified by the Fifth Amendment, as long as the new owner plans to make more money with the property. This is unprecedented.

In its report, Public Power, Private Gain, the Institute for Justice documented more than 10,000 instances of eminent domain for private development nationwide between 1998 and 2002[3], and tax-hungry local governments have been teaming up with land-hungry developers for years to transfer prime real estate from one private owner to another. But governments still recognized that the courts had never actually upheld eminent domain for development. That provided some restraint or caution. In the aftermath of Kelo, however, there is no reason to show any restraint. 

Evidence that the Supreme Court opened up the floodgates to abuse is everywhere. Hours after the court released its decision, redevelopment officials in Texas threatened to seize lucrative waterfront restaurants through eminent domain to make way for an $8 million private boat marina. Five property owners in Lake Zurich, Illinois, had asked city officials to hold off on using eminent domain until the Kelo decision. Within a few weeks, City officials moved forward with their condemnation efforts. Now, more than six months after Kelo, governments and developers are engaging in eminent domain abuse in unparalleled numbers.

Fortunately, most Americans see the truth—despite the rhetoric of city officials and developers who want no limits on the use of eminent domain. Practically every poll taken since Kelo shows that voters think eminent domain for private development is flat-out wrong and unjust. Americans understand that it’s wrong to take someone’s home or business just so that someone else can make more money. Legislatures throughout the nation are currently considering legislation that aims to significantly curb the harms that the Supreme Court set into motion. The U.S. House of Representatives passed the “Private Property Rights Protection Act” by a landslide vote, local governments have passed a number of policies restricting eminent domain—and this is just the beginning.

As it stands, Kelo left no federal constitutional limitation on the ability of City officials to take property from one person and give it to another for the latter’s private use. Thus, it’s not surprising that municipalities have reacted to the decision by exponentially abusing their eminent domain powers, and it’s now more important than ever that people demand sensible legislation from their elected officials and decisions from their courts that respect the Constitution. The Supreme Court left citizens without meaningful property rights protection—and the Castle Coalition will not back down until Americans get just that.

[1] Donald J. Borut, Public Letter to the U.S. House Judiciary Committee, Nov. 3, 2005.

[2] Kelo v. City of New London, 545 U.S. 2005 (Justice O’Connor’s dissent).

[3] Dana Berliner, Public Power, Private Gain: A Five Year, State-By-State Report Examining the Abuse of Eminent Domain (2003) (available at http://www.castlecoalition.org/report/).

 


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