June 24, 2005

Kelo in the Popular Press

by PG

With the plaintiffs in the case having been told by a majority of the Supreme Court to fight their battles at home, looking at how normal people (i.e. not lawyers, professor nor law students) are viewing the decision may be instructive as to the law will play out in reality.

Currently, the two most-discussed news stories according to Technorati are "High court OKs personal property seizures" and "Supreme Court Expands Government's Right to Seize Property." Perhaps the most damning is the headline at msn.com, which reads simply "Homes may be seized," with the first image of a little pink house that is slated for demolition. There's a weirdly Third Amendment violation-ish tone to the stories --

Suppose your house is in the way of proposed school or road construction, the law says the government can force you to sell. It's called eminent domain.
But what if the city takes your land for private development, such as a strip mall or office building?
Now, the Supreme Court says that's OK, too.
-- a sense of a government intrusion that would be appropriate only in extreme circumstances not currently present. This may be the story with the most widespread sense of impact of all the cases this term. The majority of Americans have little concern that they will be executed for crimes committed as minors, nor even that they will need marijuana for medication. But the Kelo case seems to have a more direct connection to the aforementioned normal people's anxieties about the power of government.

If the media's portrayal is reflective of, or highly influential on, the popular perception of the issues involved, I wonder if we will see a grassroots movement to expand the number of states that bar using eminent domain to take property for private development from eight to forty-three, and perhaps to change the law in the seven states that now permit it. Or maybe Justices O'Connor and Thomas are correct, and the fact that the burden will fall on the least-powerful Americans ensures that there will be no democratic political counterweight.

UPDATE: Volokh points to IJ's efforts to take it to the streets.

June 24, 2005 05:30 AM | TrackBack

There is no political counterweight in individual cases but it turns out that a heartening number of people do indeed have a sense of justice, and are willing to step up and adopt legislative reform where the courts abdicate. See, e.g., Oregon's Prop. 37 (creating-- to the shock and dismay of nearly all legal academics-- full compensation for regulatory takings).

Posted by: Will Baude at June 24, 2005 09:10 AM

Keep in mind the right wing takings project that has taken two recent hits in SCOTUS decisions. While Kelo was not the easiest case to uphold eminent domain, if it had been decided 5-4 the other way, then the project would have been inspired to eventually even attacking zoning as a taking. (Regulatory takings.)

Concerns of Justices Thomas and O'Connor for the least powerful could perhaps be addressed by further considering what should be just compensation. The present fair value at the time of taking may be inadequate as taking payments on that basis may not be sufficient for the least powerful to purchase replacement property, especially where private developers benefit from such low payments.

But defining public use too narrowly could undo many of the good things government can and does do well.

Posted by: Shag from Brookline at June 25, 2005 07:36 AM
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