Never Mind the Kelo, Here's Scott Bullock

The attorney who argued the landmark eminent domain case surveys the blight

Scott Bullock, senior attorney at the Institute for Justice, represented the plaintiffs before the U.S. Supreme Court in the landmark eminent domain case Kelo vs. City of New London. He spoke with Reason in the wake of yesterday's decision in favor of the city.

Reason: Are you surprised by the decision?

Scott Bullock: Well I was surprised. It was rather shocking that a majority of the Supreme Court would permit this type of abuse. We're in an America where, as Justice Sandra Day O'Connor points out, church property can be taken for a Costco, a farm can be turned into a factory, and a neighborhood can be leveled for a shopping mall. Most people cannot believe that this can happen in this country and the Supreme Court gave sanction to that with their decision.

Reason: What did you make of Justice Anthony Kennedy's vote against the plaintiffs?

SB: Yeah, it was surprising. I mean here's a guy who once wrote "individual freedom finds tangible expression in property rights." For him to be in a decision that fundamentally violates the right to own and enjoy your property, I think, is disgraceful.

Reason: Is there any recourse to the plaintiffs now?

SB: There is. There are going to be battles on two fronts. One, we're going to do everything in our power to keep these people in their homes. And we're going to explore all options to do so. But one thing that's coming out of this opinion that's very clear is that people are furious about this. And the anger comes from the left, right, libertarians, and everybody in between. People cannot believe that the court sanctioned something like this. So, I think that the growing grassroots rebellion against this is going to gain momentum. And I think that you'll see litigation about this in state courts, where the battle will largely be, at least for the time being. And you'll see a number of legislative changes though both legislatures and then also through the initiative process, as well. And we'll be there every step of the way to make sure that these abuses stop.

Reason: Given how many frivolous Constitutional amendments get proposed there days, why isn't there a serious movement for an amendment that would more narrowly define eminent domain powers?

SB: There's already discussion of doing so. And, as I said, this is a time to really think big about these issues because it's clear that a narrow majority of the Supreme Court has given the potential for businesses and local governments to work together to take people's land. And I think it was a real wake-up call to people that something has to be done about this. And hopefully we'll see some major changes.

Reason: How is this going to affect lower court decisions in other eminent domain cases, such as the Michigan Supreme Court's reversal of the Poletown decision last year?

SB: What's important to point out is that even the majority admitted that state courts are free to interpret their own provisions in a manner that's more protective of property rights. Thankfully, every state Constitution has prohibitions against private takings and a requirement that takings be for public use. And, only six states have held that economic development condemnations are Constitutional. Nine have held that they are not. And most states have not addressed it.

Reason: States that have ruled in favor include Connecticut, presumably?

SB: Connecticut, Kansas, Maryland, Minnesota, New York and North Dakota: Those are the states that have said that this is acceptable to their state constitutions. Nine states have said that it's not. And then, most states have not addressed it. So, state courts, when this issue comes before them, are free to give greater protections to property owners and hopefully stop this practice in their states.

Reason: Speaking of private economic development, the import of the decision has largely been seen as clearing the way for seizures for private economic development, but that's not really unprecedented. Even railroads were private endeavors. So are we seeing something new here or does this decision just affirm the status quo?

SB: It's very different from something like a railroad. A railroad typically follows a very narrow strip of land. Railroads and utilities are what are known in the law as something called common carriers. So even though they might be privately owned, they're really the equivalent of public bodies because everybody, the public, has an equal right to them. Everybody has a right to the utility line. And they're very tightly controlled by public officials, so they're really the equivalent of public bodies; that's why the court upheld them. Here, we're talking about ordinary private uses of land—taking somebody's home for a Costco, taking Church property to give to another private owner. That's why this opinion is so sweeping and it's so far removed from even what the courts did in the railroad cases, or even in the situations involving blight. Because even in those cases, the government had to show that there was some type of harmful condition to that land before it was justified for condemnation. Here, the court said, whatever land the developers happen to desire is up for grabs.

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