How Eminent Domain Ran Amok

By Main, Carla T. | Policy Review, October-November 2005 | Go to article overview

How Eminent Domain Ran Amok


Main, Carla T., Policy Review


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.

Citizens who had been the targets of economic development takings projects long in the works before the Kelo decision suddenly found the vocabulary they had lacked to express their anger. The Kelo case, covered in depth by the media, crystallized the often Byzantine nature of condemnation proceedings for the homeowners caught up in them. Armed with a clearer understanding of what had befallen them and an outlet for their outrage, they have been hitting the streets in protest. Even Justice John Paul Stevens, who authored the majority opinion in Kelo, said in a speech before a bar association meeting in August that he personally regretted the Kelo decision but had felt compelled to rule against the homeowners, based on precedent.

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.

High court blessing

IN THE Kelo case, the high court ruled against 15 homeowners from a working-class neighborhood in Connecticut, giving federal constitutional blessing to what has become standard practice in a number of states for many years (though expressly rejected in others). What it has come down to is this: You may rest easy by your hearth (or behind the cash register of your business establishment) so long as the municipality in which it sits has not gotten a notion in its collective head that your property would raise more tax revenue by being taken in condemnation and given to a private developer, who would then raze it to build what the local government deems necessary in the name of economic development.

And lest you imagine that the project for which your home or business could be torn down would be something of great public purpose, such as a hospital, a school, or a missile silo, think again. …

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