Friday, June 24, 2005

Masters of their domain

It's been interesting to watch the reactions to the Supreme Court's 5-4 decision in Kelo v. City of New London, in which the majority ruled Thursday that the Fifth Amendment's Takings Clause allows cities to seize property through eminent domain for the "public use" of promoting private economic development.

The decision has left people from all ends of the political spectrum dissatisfied, perhaps because the question raised in the case doesn't lend itself to a wholly satisfying resolution, regardless of one's views. (Local bloggers have some interesting takes here and here. So do law professors Ann Althouse and Eugene Volokh.)

A recurring refrain I've heard about the decision is that activist judges, creating law out of whole cloth, just opened the door for cities to abuse their eminent domain powers by forcing private landowners to make way for rich corporations and developers. What the Court did, however, was to continue its history of deferring to the legislative branch to define what constitutes a valid "public use."

Thursday's decision follows more than 50 years of precedent, including 1954's Berman v. Parker, which found that Congress has the power to determine what qualifies as a public use, and 1984's Hawaii Housing Authority v. Midkiff, which found that state legislatures do, too.

Government officials haven't exactly rushed to use eminent domain to steal from the poor and give to the rich since those decisions. Only seven states explicitly allow takings for private development, and eight states already have banned such condemnations in the absence of blight. Also, as a story in today's Huntsville Times indicates, most local leaders are careful in their use of eminent domain because they know the quickest way to get voted out of office is to force people to hand over their homes and businesses to a corporation or developer.

Kelo essentially was a states' rights decision that limited the federal judiciary's power in favor of elected local authorities. That's why it was odd to see the Court's more conservative justices -- including Clarence Thomas, who warns near the end of a long dissent that the decision will disadvantage the poor and minorities -- opposing it and the more liberal justices supporting it.

Had the Court sided with the dissenters, federal judges would have found themselves in the uneasy, micromanaging position of deciding in case after case whether a given shopping center or subdivision qualifies as a valid or desirable public use. Meanwhile, the majority view leaves government officials with the potential to trample on private property rights for the benefit of a few wealthy supporters, despite the warning in Justice Anthony Kennedy's concurrence that courts "confronted with a plausible accusation of impermissible favoritism to private parties should treat the objection as a serious one."

Both scenarios are far from ideal. As it stands, legislatures and city halls will remain the first battlegrounds in the fight over the scope of eminent domain powers.


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