The Eminent Domain Revolt: Changing Perceptions in a New Constitutional Epoch

By John Ryskamp | Go to book overview

CHAPTER 2. KELO AND ITS DISCONTENTS

THE CONSENSUS EVAPORATES AND THE DOCTRINES UNRAVEL

Was our society, which had always been so assured of its humil-
ity and rectitude, so confident of its unexamined premises, assembled
round any thing more permanent than a congeries of banks, insurance
companies and industries, and had it any beliefs more essential than a
belief in compound interest and the maintenance of dividends?

—T. S. Eliot, The Idea of a Christian Society

The lessons of Kelo are straightforward: first, only housing is housing; no generalities—not “private use,” not “property rights,” not “economic development” —nothing substitutes for it. Second, if you don’t understand how the law (in this case, the Constitution) got to be the law, you probably don’t understand the law and will have a tough time vindicating your rights. Those who cannot describe a writ of assistance, or arbitrary power, or ship money, or decide whether James Madison means housing when he says “every,” don’t stand a good chance of persuading the Court of anything.

The Institute for Justice, representing the Kelo homeowners, never did make the argument that there was a right to housing, and the Court never asked about it.137 Instead, the IJ advanced its losing argument—and lost. As the Court noted

137 Neither did commentators pay any attention to the housing involved in the facts: avoidance of the facts is endemic to—and mandated by—the “minimum scrutiny” regime. What concerned the commentators was the goal or process of eminent domain, not the Constitutional ramifications of what is taken; for example, 119 Harvard Law Review 287

-65-

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The Eminent Domain Revolt: Changing Perceptions in a New Constitutional Epoch
Table of contents

Table of contents

  • Title Page v
  • Glossary ix
  • Table of Contents xi
  • Foreword 1
  • The Eminent Domain Revolt 9
  • Chapter 1- Individual Rights before Kelo V. New London 11
  • Chapter 2- Kelo and Its Discontents 65
  • Chapter 3- The New Bill of Rights as Law 123
  • Chapter 4- The New Bill of Rights as Fact 167
  • Chapter 5- The Early Days of the New Bill of Rights 201
  • Conclusion 251
  • Bibliography 261
  • Index 265
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