Kelo’s fellows
Since last summer’s Kelo decision affirming that eminent domain may be used to flip urban property directly to a private developer, the public noise has translated into substantial political pressure,
Keep away from elected officials.
and in turn to a bounty of legislation enacted and proposed.
Pick a law, any law.
As summarized in this Los Angeles Times article:
LAWNSIDE,
Since the court expanded the definition –
Wrong; what makes the Kelo outcry so remarkable is that it merely restated what had been settled law under Berman and Midkiff.
– of eminent domain in June in Kelo vs. City of New London, lawmakers in 47 states (excellent compendium here!) have introduced more than 325 measures to protect private property.
All but five states! That’s a groundswell.
Striking too is how bipartisan is the outcry — it transcends traditional coalitions:
As many Democrats as Republicans have written these bills and constitutional amendments, sometimes moved by their own situations, such as fear that their aging parents’ homes might be targeted.
“I have never seen a response to a Supreme Court decision this dramatic,” said Larry Morandi, a land-use specialist for the National Conference of State Legislatures. “It is a gut issue, not a partisan issue at all. Whether you are a Massachusetts Democrat or a Republican in
The legislation responds not just to the decision but to local activity:
Like hundreds of lawmakers across the country, New Jersey state Sen. Diane Allen crafted a bill to protect owners of homes and small businesses.
The Republican lawmaker proposed a two-year moratorium on the use of eminent domain — the practice that allows governments to seize private property for public use.
Her plan followed a flurry of proposals — at least 25 major projects in her state — to raze modest homes in fine condition for grander housing and retail ventures that came on Kelo’s coattails.
For when urban redevelopment is the diagnosis, and excision of under-value property the prescription, the property excised is that of the poor. Precisely this economic discrimination motivated Justice Clarence Thomas to write an eloquent dissent:
The consequences of today’s decision are not difficult to predict, and promise to be harmful. So-called “urban renewal” programs provide some compensation for the properties they take, but no compensation is possible for the subjective value of these lands to the individuals displaced and the indignity inflicted by uprooting them from their homes. Allowing the government to take property solely for public purposes is bad enough, but extending the concept of public purpose to encompass any economically beneficial goal guarantees that these losses will fall disproportionately on poor communities. Those communities are not only systematically less likely to put their lands to the highest and best social use, but are also the least politically powerful.
Urban renewal projects have long been associated with the displacement of blacks; “[i]n cities across the country, urban renewal came to be known as ‘Negro removal.’ ” Pritchett, The “Public Menace” of Blight: Urban Renewal and the Private Uses of Eminent Domain, 21 Yale L. & Pol’y Rev. 1, 47 (2003). Over 97 percent of the individuals forcibly removed from their homes by the “slum-clearance” project upheld by this Court in Berman were black. 348
What Justice Thomas so presciently feared may be happening:
Allen said Kelo opened the door for towns and developers to rob the character of communities such as Lawnside, a middle-class African American enclave that took root as a stop on the Underground Railroad. Four proposals to build expensive homes and shops are under consideration in Lawnside, imperiling as many as 20 well-kept homes.
“I’m not against redevelopment, and I’m not against building lovely town houses,” Allen said. “The question is: Where is it going to happen, and who is going to suffer because of it?”
As the Times observes, the slim 5-4 majority seemed almost embarrassed by its holding:
We emphasize that nothing in our opinion precludes any State from placing further restrictions on its exercise of the takings power. Indeed, many States already impose “public use” requirements that are stricter than the federal baseline. Some of these requirements have been established as a matter of state constitutional law, while others are expressed in state eminent domain statutes that carefully limit the grounds upon which takings may be exercised. As the submissions of the parties and their amici make clear, the necessity and wisdom of using eminent domain to promote economic development are certainly matters of legitimate public debate. This Court’s authority, however, extends only to determining whether the City’s proposed condemnations are for a “public use” within the meaning of the Fifth Amendment to the Federal Constitution. Because over a century of our case law interpreting that provision dictates an affirmative answer to that question, we may not grant petitioners the relief that they seek.
Shortly afterwards, Justice Stevens set off a minor hullabaloo by commenting that though he voted to uphold Kelo, were he a legislator he would seek to change the law.
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.
In recent weeks,
Most of these proposals — including several in
The court got itself into this pickle because it chose to interpret the Fifth Amendment’s famous phrase “nor shall private property be taken for public use” as to be construed as “public purpose.”
Still a great opening phrase, isn’t it?
One of the half-dozen measures under discussion in
In effect,
A bill in
Which is the standard in Berman and others.
Anticipating that the high court ruling would go their way, town officials in Lawnside — where cabins that housed fugitive slaves gave way over the years to neat homes on generous lots — announced plans to build housing and retail space on 120 acres before Kelo became law. Much of the land was open space, but a portion was occupied by homes — some close to 100 years old. No part of the town is seen as distressed.
“He says he’s not dead!’
“Well, he was coughin’ up blood last night.”
<Man> “I feel happy!!!”
<Aside> “You’re not fooling’ anyone, you know.”
Something unseemly, that, drawing circles around homes to be demolished even though they are both historic and well-kept. Nor is Lawnside a community in decline — if anything, quite the reverse.
It’s not
Lawnside, a town of 2,700, has no public housing. Most of its 1,300 homes are owned, not rented. The town is 95% African American, with a handful of Indians, Asians, Hispanics or Latinos and whites. Close to half of Lawnside households make more than $50,000 per year.
If the town is a well-knit community, doing economically well, why the hunger for upscale redevelopment?
Mark Bryant, Lawnside’s mayor for the last 16 years, said development proposals valued at $100 million to $150 million could double Lawnside’s tax base of about $70 million and enhance the town’s character.
Lawnside Mayor Mark Bryant, hard at work.
Evidently ‘character’ means ‘town budget.’ And the homeowners are both displaced and with no share in the upside.
As for the homeowners who might be displaced, Bryant said, “the needs of the many outweigh the needs of the few.”
Fine for you, Mr. Mayor. You’re in the majority.
“Freedom, justice, progress”
