FEW EVENTS IN the last 25 years have prompted a national uproar over a specifically libertarian issue. Fewer still have produced as much outrage as the U.S. Supreme Court's June ruling in Kelo v. City of New London. By a vote of 5 to 4, the Court declared that the Connecticut city and its quasi-governmental development corporation could take the well-maintained homes and businesses of people in the city's Fort Trumbull neighborhood (including a grandmother who has lived in the same house since her birth in 1918) to make room for an expansion by pharmaceutical giant Pfizer. Since the decision, the city has given the owners a raspberry by charging them back rent on their own property. (reason has been covering the New London case for several years now and the larger issue of eminent domain for even longer. For our past articles, see our online archives at reason.com.)
Gone is the need for cities to prove a property is "blighted" before it can be seized. Gone too is the Fifth Amendment's requirement that private property be taken only for "public use"; New London plans merely to hand the land over for a new development that it expects to generate more jobs and property taxes than the current owners. While the justification for using eminent domain was often flimsy before Kelo, the decision opens a new era in eminent domain abuse. (See "Like Undermining Motherhood and Apple Pie," page 28.)
The news media, state governments, legal scholars, attorneys, real estate agents, and homeowners across the country have reacted with shock and indignation. Bills curbing eminent domain powers have been introduced in both houses of Congress and more than half of all state legislatures. According to The Wall Street Journal, the public and political reaction has begun to worry city planning officials, who "are growing increasingly concerned that the backlash will block more projects, potentially causing big losses for developers and canceling long-planned projects."
Scott Bullock, a senior attorney at the D.C.-based Institute for Justice, represented the property owners in Kelo. Founded in 1991, the institute has successfully represented homeowners targeted for eminent domain condemnations in Arizona, Ohio, New Jersey, and other states, and is currently fighting property seizures around the country. Speaking with Web Editor Tim Cavanaugh about the Kelo decision and its explosive aftermath, Bullock remained defiant, and optimistic about the prospects for homeowners in New London and throughout the United States.
reason: What do you think is sparking the public outrage over Kelo?
Scott Bullock: It was an outrageous decision. It was rather shocking that a majority of the Supreme Court would permit this type of abuse. We're in an America where, as former Justice Sandra Day O'Connor pointed out in her dissent, church property can be taken for a Costco, a farm can be turned into a factory, and a neighborhood can be leveled for a shopping mall. Most people cannot believe that this can happen in this country and that the Supreme Court gave sanction to that with their decision.
reason: Since the decision, Justice O'Connor has retired; Chief Justice William Renquist is pretty ill. Those are two of the dissenters right there. Do you have any predictions about how a change in the Supreme Court composition will affect property rights?
Bullock: Well, I don't know. These things are always hard to predict. Look at how Justice Anthony Kennedy voted against his own track record of supporting property rights. But this is also a case where you could have a member of the Court who might be from the left but come to a very different decision from what some of the more liberal members of this Court decided.
reason: At the moment the confirmation hearings for Judge John G. Roberts haven't begun. Assuming he gets approved, which way do you think Supreme Court Justice Roberts will lean? …