The Kelo Effect
By Alan Stewart Carl | Related entries in Economy, Supreme CourtThree years ago, in the famous Kelo decision, the U.S. Supreme Court expanded the power of the “takings clause†in the Constitution to allow municipalities to condemn private property and give it over to private developers so long as the action provided appreciable benefits to the community. Thanks to Kelo, if a city argues that a shopping mall or luxury condominium would be more economically beneficial than your home, then the government can condemn your home.
Kelo was an incredible unpopular decision but, as Steven Malanga’s excellent article points out, governments have not hesitated to take advantage of the new rules.
But do such government-driven redevelopments actually improve communities? Malanga argues that they generally don’t and I suggest you read his whole piece to understand why this kind of heavy-handed economic action is most often a bad idea.
But I wanted to share this tidbit with you because it’s so representative of what damage the overzealous use of imminent domain can cause:
The ground where Susette Kelo’s home stood is now barren, because the townhouses that the city-sponsored developer was supposed to build there have never gone up. Interest in the area isn’t very great and the developer hasn’t been able to get financing.
Yes, the very house that launched the Kelo case was destroyed by developers and then left as a vacant lot.
Exactly who has this helped?
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June 25th, 2008 at 9:11 am
Malanga is spot on. The craze for new arenas and convention centers is mostly to make politicians look good and feed their buddies in construction and development. Kelo made it easier to push such projects, when they really should be HARDER to pull off.
My favorite nit: These types of projects will ALWAYS be touted with “economic impact” statements that claim huge benefits. Even when those studies are completely on the up and up, they will ALWAYS omit the flip-side NEGATIVE economic impact of the additional taxation required to pay for them, which is about exactly the same save with a “minus” sign in front of it. But promoters and politicians get away with it because the negative impact is spread out thinly over the entire taxing district, while the benefits accrue in focused areas that can be easily seen.
You can see the new business at the few shiny stores and restaurants in/near the projects, but you don’t see the loss of business in all the other venues that are impacted.
June 25th, 2008 at 9:48 am
It’s eminent domain, not imminent (I would think you would recall that “imminent” is the type of attack Saddam was planning to launch on the US with his WMDs)
Kelo’s house was not demolished–it was actually moved. She is living not too far away from the original site.
That said, this was easily among the worst cases in Supreme Court history–but it was actually the correct decision based on the existing law. As appalling as the notion is, eminent domain laws do not properly restrict government taking powers. The majority ruled based on the law before it, rather than act like judicial activists ruling and creating law.
Isn’t that what the right always wants? Or do they just like judicial activism when it suits them (ala Bush v. Gore).
Fortunately, state legislatures in a number of states have more specific laws or have since enacted more specific laws to protect people from this kind of abuse.
Ironically, for me anyway, is that I find myself concurring with the minority right who were engaging in political activism in trying to rewrite the law from the bench when they argued against the taking–which is why judicial activism–when it acts as a counterweight to political abuse by the powerful is a good thing.
June 25th, 2008 at 10:25 am
I’d be a lot more comfortable that John McCain “gets it” if he had called Kelo “one of the worst decisions in the history of this country.” rather than the recent Boumediene Habeas Corpus decision. I assume that he opposes Kelo as most on the right do.
I’m not a lawyer but I understand in both decisions the court is looking to the legislature to clarify. Of course, in California, our representative body is unable to function on truly controversial issues, so it will have to be settled by voter initiative. I think we have an eminent domain restricting initiative coming up in November. The last one failed because it over reached.
June 25th, 2008 at 11:15 am
I agree that Kelo was a crappy decision when contrasted with what I and many others perceive to be the true spirit of “public use” inherent in the notion of eminent domain. I also agree that some rationales for making the decision as it was made do in fact exist.
I do think it’s worth it to put aside one’s anger at the expansion of power that this decision really and truly does seem to represent, and look at the complexities of making major urban projects happen. When you do that, I think you’re strongly compelled to notice that some sort of compromise needs to emerge where a single person can’t unreasonably deny highly desirable progress, but neither can the government arbitrarily substitute its own judgement for that of property owners without genuine owner recourse.
Hopefully, that’s what happens, and hopefully each state finds a way to address this. What’s really needed is some mechanism where the state is required to meet some high burden of proof, and where any property owner under threat of an eminent domain taking has access to some sort of independent due process. By independent, I mean some process that is not a government council with a rubber stamp. I envision some sort of eminent domain court with the power to weigh the facts and make a judgement that the state did or did not err in judging that a given taking was worth it.
I think that governnment entities do deserve SOME latitude in the context of modern complexities. But certainly not BROAD latitude. IMOP, The law does not speak well enough to this issue. So legislators ought to…
July 4th, 2008 at 1:48 am
Actually the Supreme court had upon its structuring of KELO, purposely announced, that it has come to a more convenient occupational understanding, of its own Constitution of laws, then it had announced, it can understand any of our Constitutions, restraints of law.
Were are those Constitutional counterweight’s to this Judicial’s political right, of favoring its own abuse.
Many State political property laws prior to this KELO were based upon this purpose of Constitutional understanding, that general economics were not to be the baseline factor, to a public’s right of use, but now in many States they are based upon this newly announced Constitutional right, that any suggested public can be economially serviced by the making of a law, that is purposely based upon those pleasures that can be found in the taking.