The Specter of Condemnation

By SCOTT BULLOCK
June 24, 2006
Wall Street Journal

When I got the call from the Supreme Court clerk's office telling me that the court had decided Kelo v. New London -- and that the city had won -- I and my colleagues who had worked on this case from the trial court up to the Supreme Court sat together in stunned silence.

First I felt shock at the damage done to the Constitution; then I winced at what the decision meant for people who had fought so hard for their rights. Susette Kelo could lose the dream home for which she had worked so hard; 87-year-old Wilhelmina Dery might be evicted from the only home she had ever known. Finally, we all shuddered at what this decision meant for home and small business owners across the country.

What a difference a year makes.
Kelo is the most universally despised Supreme Court decision in decades. And it touched off a nearly unprecedented, grass-roots backlash against eminent domain abuse -- where land is taken, not for a traditional public use like a road or a public building, but from poorer folks and given to wealthier folks, all in the name of "development."

Americans are virtually united in opposition to this practice. Polling on this matter is off the charts. Consistently, 80% or more of the people are opposed to the Kelo decision and want something done about it. The opposition cuts across the usual political divides that separate Americans today. Property owners in blue states oppose eminent domain abuse just as much those in red states. Republicans such as Sen. John Cornyn and Rep. James Sensenbrenner stand shoulder to shoulder with Democrats such as Bill Clinton and Reps. John Conyers and Maxine Waters.

Indeed, about the only people who support the abusive practices are those who stand to benefit from it: local political officials, including big city mayors such as New York's Michael Bloomberg; and planners and developers. What these beneficiaries lack in numbers, however, they more than make up for in political muscle. The result is a massive struggle in state legislatures.

The stakes are high. In the five years between 1998 and 2002, more than 10,000 properties nationwide were threatened or condemned for private development through eminent domain; in just the past year since Kelo, more than 5,700 properties have been similarly threatened or taken. Unless the laws are changed, these unconscionable practices will continue.

So far the results have been encouraging. Legislatures in 25 states have responded to public outcry by restricting eminent domain in a variety of ways. Three other states passed similar legislation, only to have it vetoed by the governor. Six states -- Florida, Georgia, Louisiana, Michigan, New Hampshire and South Carolina -- have constitutional amendments to reform eminent domain that will go before voters this fall.

Importantly, last year the House of Representatives overwhelmingly approved a bill that would prohibit federal economic development funds from going to state and local agencies that use eminent domain for private commercial development. The Private Property Rights Protection Act (HR 4128) could make a big difference -- if the Senate Judiciary Committee would only allow it to be voted on by the full Senate.

The new state laws vary in the level of protection they provide. Still, even modest reforms would have been impossible before Kelo put a national spotlight on the disgrace of cities taking homes, small businesses and churches all in the pursuit of more tax revenue and an improved local economy.

Although the tide is turning, a great deal remains to be done. As Justice Sandra Day O'Connor warned in her prescient Kelo dissent, "the specter of condemnation now hangs over all property." Since Kelo, cities have pushed out motels for commercial development and replaced small businesses with upscale hotels; bulldozed houses to make room for shopping malls. There's an even stronger and uglier trend: Towns and cities are taking modest-sized houses from their owners and handing them over to the builders of trendier, more upscale homes and condominiums (whose new owners will pay higher taxes).

Meanwhile, agricultural land has been taken by eminent domain to make room for retail establishments, and members of congregations have been forced out of their houses of worship to make room for businesses that yield taxes to municipalities.

In addition to political changes, it is still vitally important that courts do not roll over and play dead. Even the majority of the Supreme Court recognized in the Kelo decision that, regardless of the U.S. Constitution, state courts are free to interpret their own state constitutions to afford a greater measure of protection to citizens against the reach of eminent domain. And many state courts, after years of neglect, have strengthened protections for people challenging eminent domain abuse.

Although most of the litigation will be directed toward state constitutional claims in the near future, I am confident that one day, perhaps in the not-too-distant future, the Supreme Court will reconsider and overturn its disastrous Kelo ruling, consigning it to the same fate as other discredited decisions like Plessy v. Ferguson (which upheld "separate but equal" treatment of the races) and Korematsu v. U.S. (which upheld the internment of Japanese-Americans during World War II).

Meanwhile, in New London, where this battle began back in 2000, folks there are still fighting to keep their homes. Wilhelmina Dery passed away in March of this year but she was able to do so in her home, a few feet from where she was born the year World War I ended. Susette Kelo's little pink Victorian house -- now a symbol of the fight against eminent domain abuse nationwide -- still proudly stands.

The political officials and their big business allies who benefit from eminent domain abuse will not give up their power without a fight. This is a fight that must be faced squarely. But if it is, we will, in the end, all be more secure in our homes, small businesses, farms and churches.

Mr. Bullock, a senior attorney at the Institute for Justice, argued the Kelo case before the U.S. Supreme Court.