Property Seizures and the New London Tea Party

Homeowners' attorney Scott Bullock talks about the Supreme Court's Kelo v. New London decision and America's brewing revolution against eminent domain abuse.

Tim Cavanaugh from the November 2005 issue

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Reason: There are bills in the U.S. House and the Senate regarding eminent domain. What do you know about them?

Bullock: A lot of the effort on the Hill has been on bills that prohibit federal funding for projects that use eminent domain for private economic development, or for cities that use it. Cities that did this would lose all their federal funding. We think it's clearly within Congress' power to do that. It's clear that Congress cannot rewrite a constitutional interpretation; they tried to do that a couple years ago with regard to religious freedom, and that was overturned by the Supreme Court, which has final say on the Constitution. But Congress is certainly within its rights to use its spending authority to discourage cities from using eminent domain.

Reason: Do you think these bills stand a chance?

Bullock: I do, but it's not going to be easy. Although there's overwhelming public support for this, there's also an effort by both local officials and developers either to defeat the laws or to make the changes insignificant. Those are powerful forces on the other side. Developers and business interests have a lot of influence on politicians; so do local officials, whom politicians rely on to turn out the vote. So it certainly will be a hard-fought battle. There's a lot of effort from people who gain from eminent domain abuse. We'll be pulling out all the stops to make sure there are real changes, not only in the legislatures but in the state courts, to make sure the state precedents remain in effect. Remember that even the Supreme Court's Kelo majority admitted that state courts are free to interpret their own [constitutional] provisions in a manner that's more protective of property rights.

Reason: Kelo 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 was Kelo really something new, or did the decision just affirm the status quo?

Bullock: 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 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.

Reason: Some defenders of the decision argue that the government went through a planning process in this case, that this is part of a well-developed plan.

Bullock: The idea that having a plan and going through a planning process protects property owners in any way is completely disconnected from reality. I mean, every development in this country has to go through a process, has to be announced, has to have hearings. To think that this provides any protection for property owners who face the loss of their homes and small businesses is nonsense. And it shows how some members of this Court and some defenders of this policy don't understand how these things really pan out in the real world.

Reason: Speaking of defenders of this decision, what do you make of august bodies like The New York Times defending Kelo as "a welcome vindication of cities' ability to act in the public interest"?

Bullock: Of course it was disappointing, but not entirely surprising. They have editorialized in favor of eminent domain abuse in the past. To their credit they admitted in that editorial that they have been the beneficiaries of eminent domain--their new headquarters is built on land that was taken from private owners. And as I said before, the only people who support this decision are those who stand to gain from eminent domain abuse: city officials, some business interests, and The New York Times.

Reason: How much reaction have you seen from the political left, given that all the dissent on Kelo came from the conservative wing of the Court?

Bullock: There seems to be a division between the elite left opinion and the grassroots. You've seen a lot of left-leaning Web commentary in reaction to articles that tried to defend the Kelo decision. Many people who consider themselves on the political left are very opposed to eminent domain abuse. This definition really cuts across political lines. The first person in the Senate to denounce the decision was John Cornyn, the conservative Republican from Texas. The first person to do so in the House was Maxine Waters of Los Angeles, one of the most liberal Democrats in Congress. Ralph Nader has always been very critical of eminent domain abuse, and we've always worked with people on the left on this issue.

It has been disappointing to see some in the elite left supporting this. The American Prospect had an article defending the decision, but I don't think that's true of most people on the left, who reflect the consensus that this was a terrible decision and one that's going to impact the poor and those of modest means most directly and profoundly.

Reason: We keep hearing about the backlash as a "new Boston Tea Party" and so on, but that kind of talk is cheap. Has there been any real momentum against eminent domain, in the sense that it will actually keep anybody from losing his or her house?