Few events in the last 25 years have prompted a national uproar over a specifically libertarian issue. Fewer still have produced as much outrage as the U.S. Supreme Court's June ruling in Kelo v. City of New London. By a vote of 5 to 4, the Court declared that the Connecticut city and its quasi-governmental development corporation could take the well-maintained homes and businesses of people in the city's Fort Trumbull neighborhood (including a grandmother who has lived in the same house since her birth in 1918) to make room for an expansion by pharmaceutical giant Pfizer. Since the decision, the city has given the owners a raspberry by charging them back rent on their own property. (Reason has been covering the New London case for several years now and the larger issue of eminent domain for even longer. For our past articles, see our online archives at reason.com.)
Gone is the need for cities to prove a property is "blighted" before it can be seized. Gone too is the Fifth Amendment's requirement that private property be taken only for "public use"; New London plans merely to hand the land over for a new development that it expects to generate more jobs and property taxes than the current owners. While the justification for using eminent domain was often flimsy before Kelo, the decision opens a new era in eminent domain abuse. (See "Like Undermining Motherhood and Apple Pie," page 28.)
The news media, state governments, legal scholars, attorneys, real estate agents, and homeowners across the country have reacted with shock and indignation. Bills curbing eminent domain powers have been introduced in both houses of Congress and more than half of all state legislatures. According to The Wall Street Journal, the public and political reaction has begun to worry city planning officials, who "are growing increasingly concerned that the backlash will block more projects, potentially causing big losses for developers and canceling long-planned projects."
Scott Bullock, a senior attorney at the D.C.-based Institute for Justice, represented the property owners in Kelo. Founded in 1991, the institute has successfully represented homeowners targeted for eminent domain condemnations in Arizona, Ohio, New Jersey, and other states, and is currently fighting property seizures around the country. Speaking with Web Editor Tim Cavanaugh about the Kelo decision and its explosive aftermath, Bullock remained defiant, and optimistic about the prospects for homeowners in New London and throughout the United States.
Reason: What do you think is sparking the public outrage over Kelo?
Scott Bullock: It was an outrageous decision. It was rather shocking that a majority of the Supreme Court would permit this type of abuse. We're in an America where, as former Justice Sandra Day O'Connor pointed out in her dissent, 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 that the Supreme Court gave sanction to that with their decision.
Reason: Since the decision, Justice O'Connor has retired; Chief Justice William Renquist is pretty ill. Those are two of the dissenters right there. Do you have any predictions about how a change in the Supreme Court composition will affect property rights?
Bullock: Well, I don't know. These things are always hard to predict. Look at how Justice Anthony Kennedy voted against his own track record of supporting property rights. But this is also a case where you could have a member of the Court who might be from the left but come to a very different decision from what some of the more liberal members of this Court decided.
Reason: At the moment the confirmation hearings for Judge John G. Roberts haven't begun. Assuming he gets approved, which way do you think Supreme Court Justice Roberts will lean?
Bullock: I don't know. I have not read anything he's written on public use. I know he's written some articles on just compensation. I know when he was in private practice he represented a planning agency. But I don't have any idea, based on his prior writings or decisions, how he would rule on the Public Use Clause of the Constitution. Justice O'Connor, in one of her shining moments on the Supreme Court, left a great legacy for future justices to aspire to in interpreting the Public Use Clause. Hopefully in the not too distant future we'll get another case before the Court; and when one of the justices who ruled in favor of the government in Kelo retires, there will be another justice on the Court who we hope will adopt the position of Justice O'Connor and the other dissenters.
Reason: What forms has the post-Kelo backlash taken?
Bullock: One of the forms it's taken, in addition to overwhelming public support for the property owners and outrage at what the Court has done, is the legislative proposals that have been either introduced or promised in 30 states. That's still counting, because a number of state legislatures are out of session and something will happen when they get back. After years of neglect, there's finally significant interest from legislatures either to prohibit this type of taking or at the very least to provide greater protections for property owners.
Reason: What types of proposals are we talking about?
Bullock: We have them all posted on our website, ij.org. Some are very substantive--for instance, simply prohibiting takings just for economic development, and also reforming the states' blight laws so they're not used as a backdoor way to accomplish the goal of transferring property between private owners. Other proposals are frankly cosmetic changes that would not really do much about the problem. The challenge for activists in the coming months is to make sure there are substantive changes, rather than just politicians claiming credit. Alabama was a great first step. That's a state that has prohibited the type of takings that was permitted in the Kelo decision. But there's still a loophole in Alabama law that allows takings for blight, and they have a rather broad definition of blight.
Reason: How much of an education process do you think there's been in the public about eminent domain issues? For example, the idea that the Kelo plaintiffs are going to have to accept a "fair market value" based on circa 2000 property values is surprising news to many people, yet that's standard procedure in eminent domain takings.