Controversial Supreme Court opinions always inspire a great flurry of Sunday morning editorials, and so it was with Kelo v. New London, et al., last week’s decision in which the court held that any local or state government could seize property through its power of eminent domain for the purpose of economic development.
For conservative commentators, including John Kass of the Chicago Tribune, the case was a clear example of the court steamrolling the little guy. The Washington Times, always ready to wade into constitutional controversies with its chin leading the way, stated that the decision “drastically expands traditional eminent domain powers.” In the Boston Globe, columnist Jeff Jacoby describes Kelo as an “execrable decision” that stood as an “evisceration of the Public Use clause.”
But was it?
Prior to the Supreme Court’s decision on Thursday, both Democrat- and Republican-led municipalities all over the Unites States had been developing complex economic development programs that had already condemned property or reserved the right to do so if need be. Did these cities spend millions of dollars in research and development, and untold time and energy negotiating with homeowners and various civic and nonprofit organizations, on programs that were, prior to last week’s court decision, patently unconstitutional?
Kass suggests that they did. He favors the “old” interpretation of the Fifth Amendment, whereby public use “was understood to mean a park or road, school or library,” and he believes that the court’s decision in favor of eminent domain for economic development has “gutted the old-fashioned notion of private property for little guys,” forever changing the nature of property rights in America.
In fact, the holding in Kelo was based primarily on long-established precedent. In 1954, the court held in Berman v. Parker that Washington, D.C. could condemn a department store in fine condition for a larger economic development program in which some of the land would be leased or sold to private parties. In Hawaii Housing Authority v. Midkiff, decided over twenty years ago, the court supported this precedent by upholding Hawaii’s decision to enact a land distribution program to combat the “social and economic evils of land oligopoly.” This unanimous decision upheld the court’s prior understanding of public use as public benefit, and the court’s “deference to legislative judgments in the field.”
Missing from the Kass piece, and nearly all of the Sunday editorials on Kelo, is a basic understanding of the history of eminent domain abuse under the “old rules.” The traditional uses of eminent domain that Kass favors — for purely public programs — have a far more sordid history than their economic development counterparts. Thousands of tenants and homeowners were displaced by Robert Moses and his Cross Bronx Expressway. And small neighborhoods all over the United States — many of them vibrant ones — were cleared in the 1950’s in order to build badly needed but poorly planned public housing towers that failed to realize their initial promise.
Whether the projects in question are strictly public or for the public benefit is not the question editorialists should be asking. What they should be asking is, “Is this a good use of the land in question?” And, “Are current residents treated fairly and given some form of due process?”
And while seemingly expanding the scope of what constitutes public use, in Kelo the court also left open the opportunity for states to regulate public takings more rigorously. The majority wrote that “nothing in our opinion precludes any State from placing further restrictions on its exercise of the takings power.” That deference to a state legislature’s superior ability to address complex matters can hardly be taken as an unbridled expansion of the definition of eminent domain.
Indeed, the decision could rightfully be viewed with some alarm by conservatives, providing as it does some property rights activists with a long-sought opportunity to challenge zoning and other land-use laws on the state level. Connecticut’s Republican Governor Jodi Rell has already stated that she may seek to amend that state’s eminent domain laws to increase regulation and government oversight in light of the Kelo decision.
It’s hard to tell just how much of this editorializing is sincere, or just a prelude to the upcoming Supreme Court nomination. But any time conservative columnists seem to be arguing in favor of government investment in purely public projects — the “old” definition of eminent domain — over public-private partnerships — the “new” definition — we should all be a little skeptical about who stands for what.
–Stephen Burzio
The author is an attorney who represents low-income tenants in New York City.
Stephen Burzio is a contributor to CJR.