Tuesday, February 21, 2006

One year ago today, the U.S. Supreme Court heard oral argument in a case that had the potential to protect home and small business owners throughout the country from eminent domain abuse. But just four months later, the court, by a close 5-4 margin, handed down a decision that allowed New London, Conn., to take 15 homes and transfer them to a private developer on the grounds the new owners could pay more taxes or create more jobs than the houses.

In a single stroke, the court put its stamp of approval on wholesale takings across the country.

The decision in Kelo v. New London rightfully sent shock waves across the nation and political spectrum. People were outraged that a majority of the court ruled it was perfectly fine for the government, in the words of dissenting Justice Sandra Day O’Connor, to replace “any Motel 6 with a Ritz-Carlton, any home with a shopping mall, or any farm with a factory.” Indeed, it is safe to say Kelo has become the most universally despised Supreme Court decision in decades.

The Kelo case shined a spotlight on an ugly and un-American practice: taking land from poorer folks to give to wealthier people for private commercial development. Most people cannot believe this happens in a country that emphasizes the sanctity of the home and the value of small businesses.

The good news out of the Kelo decision is that, finally, politicians have begun to take notice. More than 40 state legislatures and the U.S. Congress are considering legislative proposals that address eminent domain abuse.

One would think the overwhelmingly negative reaction prompted by the Kelo case would assure passage of meaningful eminent domain reform legislation by large majorities. Unfortunately, in many states, this has not yet been the case. Though the vast majority of Americans oppose taking property from one person and handing it to another, there are powerful forces on the other side — primarily city officials, planners and private developers. In other words, the very people who stand to gain from eminent domain abuse.

What those groups may lack in numbers they more than make up for in terms of political influence. Unlike typical home or small business owners, these people are very adept at and very used to walking state legislature halls to get what they want.

These opponents of eminent domain reform typically take two approaches. First, they try to slow efforts in many states to change eminent domain laws, no doubt hoping public reaction will cool enough so that the status quo can be maintained.

But many defenders of eminent domain abuse recognize the public outcry is loud enough that some legislation will be passed. So their second strategy is to advocate cosmetic reforms that they claim will protect property owners but in fact do very little if anything to stop eminent domain abuse.

One of the most popular such “reform” efforts is to call for more “process” and “planning” before eminent domain is used for private development. Governments and planners know how to hold hearings and put together more reports, so that type of “reform” is essentially useless. Another sham reform is to issue an empty legislative statement condemning eminent domain abuse but leave intact “blight” or urban renewal laws, which are in many states the statutory vehicle for eminent domain abuse.

As many state legislatures take up these bills, it is very important for all citizens to stay informed and engaged on this issue. To win these battles, people need to be very persistent because of the powerful adversaries on the other side.

Also, citizens must let their elected officials know they demand real changes to the state laws that permit eminent domain abuse and will hold officials accountable if they side with local governments and big businesses against the interests of modest homeowners and small businesses.

But with hard work and perseverance, there is a very real chance a whole lot of good can come out of one of the worst Supreme Court decisions in years.

Scott Bullock and Dana Berliner are senior attorneys at the Institute for Justice, and co-counsels in the Kelo case. For more information, visit www.castlecoalition.org.

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