States Curb Eminent Domain

Last June the Supreme Court, in Kelo v. New London, upheld the authority of municipal governments to condemn private property merely for private development, so long as the municipality could in anyway show that the new development would benefit it in some way. We discussed that decision here at TWM, as well as the law passed not too long after in Texas limiting the power of municipalities to employ eminent domain. According to the other NY Times, lawmakers of all political stripes are getting laws passed in their respective states doing just the same thing:

The reaction from the states [to the Kelo decision] was swift and heated. Within weeks of the court's decision, Texas, Alabama and Delaware passed bills by overwhelming bipartisan margins limiting the right of local governments to seize property and turn it over to private developers. Since then, lawmakers in three dozen other states have proposed similar restrictions and more are on the way, according to experts who track the issue.

This is only a good thing in my opinion. Both liberals and conservatives can get behind respecting the private ownership of property, and few things are outrageous as the thought of an elderly couple having to surrender the old but well-preserved home they've spent most of their lives in so some private company can build a parking lot or mall over it.

I think the Kelo decision is one of those instances where the Supreme Court seemed to get lost in a world of hypoethicals and theory. They were willing to embrace the most expansive interpretation of the takings clause of the 5th Amendment, beyond even what the framers probably intended, while at the same time failing to consider the various ways in which eminent domain is routinely abused by municipal leaders who themselves may have ties to private developers, or who want to take the cheap way out and pay far less to home and land owners whose properties are properly condemned than what their property is worth, thus forcing many owners to take their own municipal governments to court to try and get appropriate compensation. Here's Justice Stevens on the opinion:

Justice John Paul Stevens, writing for the majority, expressed sympathy for the displaced homeowners and said that the "necessity and wisdom" of the use of eminent domain were issues of legitimate debate. And, he added, "We emphasize that nothing in our opinion precludes any state from placing further restrictions on its exercise of the takings power."

Two months after the ruling, addressing a bar association meeting, Justice Stevens called it "unwise" and said he would have opposed it had he been a legislator and not a federal judge bound by precedent.

I think that's a bit disingenuous. Though it's true the Supreme Court had been moving in the direction of granting greater powers of eminent domain to municipalities, there's no precedent that required them to continue doing so and grant such a reading to the 5th, and given that the ruling was made by a 5-4 majority, it's easy to imagine that just such an opposite interpretation was possible.

Either way, State lawmakers are now taking the issue into their own hands and rectifying the error of Kelo. Unfortunately if you live in a state that doesn't do so, and a private developer starts eyeing your property, thanks to the Supreme Court you may be out of luck.