Friday, June 24, 2005

Kelo v. New London

OK, so the drugs have worn off and I've had a couple seconds to read the majority opinion for Kelo v. New London. I should have stayed on the drugs.

My take on it: it's not nearly as revolutionary as the pundits and the blogging community (both left and right) would have you believe.

I'm not a lawyer, nor do I play one on TV. I have a passing familiarity with Urban Redevelopment Law, although not the urban redevelopment laws of the State of Connecticut. The opinions expressed here are probably wrong, but they are mine, and this is my blog.

Anyway, there were a couple things I noticed in the majority opinion:

(1) There is clear precedent for eminent domain. Duh.
(2) A sovereign may not take the property of A for the sole purpose of transferring it to another private party B, even though A is paid just compensation.
(3) The State may transfer property from one private party to another if future "use by the public" is the purpose of the taking, e.g., a railroad.
(4) The Sovereign power is not allowed to take property under the mere pretext of a public purpose, when its actual purpose was to bestow a private benefit.
This is an important point. While Stevens later goes on to argue against a higher standard of review for economic development inspired eminent domain cases, he's arguing that public purpose must be evident and the primary cause of the takings.
(5) A narrow use of "Public Use" and "Public Purpose" has been rejected since Strickley v. Highland Boy Gold Mining Co., 200 U.S. 527, 531 (1906)
(6) Stevens cites two cases Berman v. Parker, 348 U.S. 26 (1954) and Hawaii Housing Authority v. Midkiff, 467 U.S. 229 (1984), both of which are used as precedent for the taking of property for economic reasons.
(7) "Public Use" seems to be a, dare I say it, "Federalist" matter in this case. The majority opinion cites a "great respect" that the court has toward the various legislatures in determining what "Public Use" means.

After that, the argument runs down hill: If the legislature has enabled a Body Corporate to use eminent domain for the public purpose of economic development reasons and if the Body Corporate has followed the guidelines set forth in that legislation and if the Body Corporate has not tried to confer a private benefit as their primary motive, then the taking is legal. Q.E.D.

Some further comments:

First, I am a supporter of Eminent Domain in principle. There are some very reasonable and practical justifications for its use, including the elimination of blight, reconfiguration of a poorly planned area, elimination of a negative externality, and providing legitimate Public amenities or services. Just wanted to make that clear. I'm also of the opinion that eminent domain is like fire: in the right hands, it is a useful, practical tool... in the wrong hands it is a destructive force for ill.

Second, there are some obvious ways to avoid the nightmare scenario of Cities and States taking large swathes of property for seemingly private use. To me, the most evident way is to circumscribe the justification for Eminent Domain. Again, I'm no legal scholar for the Commonwealth, but I don't believe that Pennsylvania allows you to take property for "Economic" reasons. The closest I can figure is Housing Authority's power to take property for Public Housing and the general power to take property in areas considered "blighted." Still, these are very limited, carved out areas that do not rise to the sweeping criteria set down by Connecticut.

Third, transparency helps to avoid impropriety. At least in Pittsburgh, authorization for Eminent Domain powers has to go through massive public review, and only after a massive public review of a certified area. Moreover, projects that are quite evidently designed to provide a private benefit will be more easily spotted.

We're looking at you Pittsburgh Wool Co.

In any case, when impropriety is evident, the ballot box provides a reasonable measure of certainty that the right thing will eventually get done.

I'm not of the opinion that we're on the verge of a new dark age here. Legislatures will amend their eminent domain laws to confine egregious violations and questionable takings. Municipalities will have to find new and better ways to drive out unwanted elements and encourage economic development.

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