Friday, April 20, 2007

Post Kelo America

Reversing Kelo v. City of New London needs to be a Presidential debate topic. This completely Un-American Supreme Court decision needs to be reversed by a future Supreme Court. The election of 2008 will affect the timing needed for this correction.

Post-Kelo America: The Supreme Court’s 2005 decision in Kelo v. City of New London generated a massive political backlash. Kelo endorsed the condemnation of private property for transfer to other private owners in order to promote “economic development.” The Fifth Amendment's requirement that such seizures must be for a “public use” can be satisfied, the Court ruled, by virtually any claim that there might be some sort of public benefit. Polls show that 80 to 95 percent of Americans oppose the decision, including overwhelming majorities of Democrats, Republicans, women, men, and members of every major racial group.

Nearly every state legislature has either adopted or considered legislation to curb eminent domain, but only 14 have enacted laws that actually provide significantly increased protection for property rights.

The most common tactic—used in some 15 states’ post-Kelo laws—is to allow economic development condemnations to continue under the guise of alleviating “blight.” While it may sometimes be desirable to use eminent domain to transform severely dilapidated areas, many states define “blight” so broadly that almost any neighborhood qualifies. A 2003 Nevada Supreme Court decision, for example, concluded that downtown Las Vegas is blighted. Similarly, a 2001 New York appellate decision held that Times Square is blighted, paving the way for the condemnation of property to build a new headquarters for The New York Times.

Similar shortcomings have bedeviled reform efforts at the federal level. President Bush’s June 23, 2006, executive order on Kelo, for example, banned the use of eminent domain for “private development,” but allowed takings for private owners who promise to use the land for both private and “public” development. This is the exact argument accepted by the Supreme Court in Kelo, and therefore does little to mitigate the decision’s reach. Legislation enacted by Congress in 2005 has been similarly ineffective.

The text of our response to the wrong Kelo decision is 2005 Wisconsin Act 233. It is a good defense against the power of government, but review and possible revision should never be off the table.