Kelo Containment Continues

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A somewhat heartening roundup article from the L.A. Times on how state governments have risen to the challenge presented by the Supreme Court in their dreadful Kelo v. New London decision, by passing laws that limit government's ability to use eminent domain merely for economic redevelopment. An excerpt:

The final paragraph of the majority opinion in Kelo essentially invited legislatures to make their own rules on eminent domain if they didn't like the decision. Almost every state commenced to do just that.

Delaware moved first, permitting eminent domain to be used only for a recognized public purpose. Alabama, Ohio and Texas passed bills barring the use of eminent domain to increase tax revenue or promote private development. In November, Michigan voters will cast ballots on an amendment that would prohibit the taking of property for economic development.

In recent weeks, Utah, Kansas and New Hampshire limited eminent domain, as did Indiana, Idaho, West Virginia, South Dakota and Wisconsin. Maryland has more than 40 Kelo-inspired eminent domain bills pending. California has at least a dozen.

Most of these proposals–including several in California–preclude the use of eminent domain for economic development or increased tax revenue.

And anti-Kelo feeling crosses party lines, with Democrats and Republicans seeming equally likely to propose or support new restrictions on eminent domain. Article long, detailed, and worth reading in full.

A compilation of earlier takes from Reason and the Reason Foundation on eminent domain issues here.

NEXT: U.S.A.! Number One! Still and Always!

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  1. The problem with state legislatures “fixing” this problem, is that they can “unfix” it as soon they find that it crimps their style in the future.

  2. I wouldn’t rely too heavily on that round-up for accuracy. Here in Ohio, there is a moratorium (until the end of the year) on ED except where “blight” is determined, while a panel studies the issue. The panel released their first report, that reached no real conclusion (not a surprise given the panel’s composition).

    The panel might recommend limiting ED proceedings to real property determined to be blighted, but it looks likely that they will keep the definition for blight as loose as ever.

  3. Carrick, the situation is problematic for the reason you state. However, there are two reasons for hope:
    1) The government officials using emminent domain aren’t working at the state levels. They are local workers, and their fondness for emminent domain is not shared by higher up politicians who have no great use for that power.
    2) The overwhelming action taken by the states bears out this conclusion that high-level politicians have more to gain by restricting ED than by allowing it, and additionally demonstrates a broad dislike for ED across the country and across party lines. With popular and political sentiment so aligned, we’re probably not in trouble just yet, despite the boneheadedness of our Supreme Court.

    As a side note, a few months ago an acquaintance of mine who works as a city planner (in CA) insisted that the Kelo ruling only affirmed existing powers and marked no real change. Not only that but of course he said ED really was only used when “necessary,” and he’d know ’cause that was his line of work after all. Well sure, that is his line of work, which is why he would never consider ED use unecessary — his job is to bring business in, and he only weighs his success by the taxes the city collects. But, again, government officials at the city level like ED but those at the higher levels have much less allegiance to it. The other big worry would be that some of the 47 states in the article might take half-ass measures that sound good but have no real effect.

  4. Blasphemy!

  5. I wonder if the Kelo fallout weakens the case of Roe v. Wade supporters. They’ve long held up the doomsday scenario of illegal on-demand abortion if that case was ever overturned, but Kelo shows that legislatures are quick to react to unpopular decisions.

    I think abortion should remain legal, but I also think Roe v. Wade was pretty bad jurisprudence.

  6. Ventifact, I agree that the immediate and loud response at the state level to limit the impact of Kelo is reassuring. However, I never feel really comfortable about my liberty and security being held in the hands of a set of politicians who currently find it to their advantage to protect said liberty and security.

    A bright line from the SCOTUS would have been much better.

  7. A bright line from the SCOTUS would have been much better.

    Howabout “private property may be taken only for public use, and upon payment of just compensation. And by ‘public use’, we mean used by the public. How hard is that, you frickin’ morons?”

  8. How hard is that, you frickin’ morons?

    That’s kinda what I’ve been wondering too.

  9. I never feel really comfortable about my liberty and security being held in the hands of a set of politicians who currently find it to their advantage to protect said liberty and security.

    Your liberty and security have been in the hands of others ever since there was more than one person in the world. Face it, anyone could kill, assault, or rob you any time, no matter what you or any politician thinks about it. Some people even have weapons.

    You want to feel comfortable, don’t make enemies. You’re still vulnerable to nuts, of course.

    How about “private property may be taken only for public use, and upon payment of just compensation. And by ‘public use’, we mean used by the public. How hard is that, you frickin’ morons?”

    Not hard, but do you realize that still allows the taking of the golf club for use by the village’s residents? It also allows all sorts of development by private businesses which will be open to the public, i.e. public accommodations.

  10. You are right, Robert, to point out that there is a difference between seized property going into public use vs. public ownership. Bridges and parks remain fully public, both in accessibility and ownership, but some seized land does go into private ownership but public use. These instances used to be accountable to a relatively strict standard of public good, for example utilities and common carriers provide undeniable good to the “public” in this sense. However, the Kelo decision was actually very explicit in saying that the court was giving permission for a seizure that, after being handed over to the private developers, would not be open to public use in addition to falling out of public ownership.

  11. Ventifact, RC,

    Takings that transfer land from one private owner to another go back to beginning of the Republic and before, for the purpose of economic development. Google “Mill Acts.”

    If it’s not too hard. Ya freakin’ morons. 😉

  12. OK, Google it is then. I’m feeling lucky.

    “Project 2001: Significant Works in Twentieth-Century Economic History: The Transformation of American Law, 1780-1860”
    (http://www.eh.net/bookreviews/library/rothenberg.shtml)

    MILL ACTS

    The reinterpretation of eighteenth-century Mill Acts provided another opportunity for nineteenth-century courts to shed the neutrality with which the common law had clothed them and overtly to take sides in the “sacrifice of ‘old’ property for the benefit of the ‘new'” (p. 63). “Under the Mill Acts, an owner of a mill situated on any non-navigable stream was permitted to raise a dam and permanently flood the land of all his neighbors, without seeking prior permission” (p. 48). Mill Acts had been enacted by provincial legislatures as early as 1713 to privilege colonial gristmills on the ground that they were private enterprises exercising a public function. This gave the floodings something of the character of a taking in eminent domain. A jury set the height of the dam, the time of the flooding, and the compensation. In return for the remedies provided in the Acts, the plaintiffs relinquished their common law right to sue for trespass, for punitive damages, for nuisance, or to seek an injunction. [So, up until this time, mills were held to strict public good requirements akin to those of common carriers today.] But in 1827, the Massachusetts court extended to textile, paper, and saw mills, unaffected with any public interest, the same privileges and immunities, allowing them “virtually unlimited discretion to destroy the value of lands far in excess of any benefit they might possibly receive,” while at the same time to “escape damages entirely by showing that the irrigation benefits the plaintiff received from having his lands over-flowed more than outweighed any injury he had incurred” (pp. 50-51). A sterner lesson could be drawn from this but for the fact that the Mill Acts, in response to public outrage, were repealed in 1830. [So there was a tiny, 3-year period in which these conditions persisted? I think we would be safe ignoring this as a kink in the historical development of American law … to make poor use of metaphor.]

  13. OK, Google it is then. I’m feeling lucky.

    “Project 2001: Significant Works in Twentieth-Century Economic History: The Transformation of American Law, 1780-1860”
    (http://www.eh.net/bookreviews/library/rothenberg.shtml)

    MILL ACTS

    The reinterpretation of eighteenth-century Mill Acts provided another opportunity for nineteenth-century courts to shed the neutrality with which the common law had clothed them and overtly to take sides in the “sacrifice of ‘old’ property for the benefit of the ‘new'” (p. 63). “Under the Mill Acts, an owner of a mill situated on any non-navigable stream was permitted to raise a dam and permanently flood the land of all his neighbors, without seeking prior permission” (p. 48). Mill Acts had been enacted by provincial legislatures as early as 1713 to privilege colonial gristmills on the ground that they were private enterprises exercising a public function. This gave the floodings something of the character of a taking in eminent domain. A jury set the height of the dam, the time of the flooding, and the compensation. In return for the remedies provided in the Acts, the plaintiffs relinquished their common law right to sue for trespass, for punitive damages, for nuisance, or to seek an injunction. [So, up until this time, mills were held to strict public good requirements akin to those of common carriers today.] But in 1827, the Massachusetts court extended to textile, paper, and saw mills, unaffected with any public interest, the same privileges and immunities, allowing them “virtually unlimited discretion to destroy the value of lands far in excess of any benefit they might possibly receive,” while at the same time to “escape damages entirely by showing that the irrigation benefits the plaintiff received from having his lands over-flowed more than outweighed any injury he had incurred” (pp. 50-51). A sterner lesson could be drawn from this but for the fact that the Mill Acts, in response to public outrage, were repealed in 1830. [So there was a tiny, 3-year period in which these conditions persisted? I think we would be safe ignoring this as a kink in the historical development of American law … to make poor use of metaphor.]

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