Thursday, June 23, 2005

Kelo, Eminent Domain, and Our Communities

Well, I have to say, I was pretty appalled by the Supreme Court opinion on Kelo v. New London. The opinion resolved a conflict in lower courts over how to rule on eminent domain--basically the government's right to seize private property for projects of public use. The problem with this case was that the officials of New London, Connecticut where the case came from, wanted to hand over the seized land from residents of New London to private developers, claiming the developers' office project would be in the public interest of the community (generate revenue, safety).

How does one figure this though? New London isn't building a school or public transportation or roads in the spot, which have explicit public use and benefits. "As a result, cities have wide power to bulldoze residences for projects such as shopping malls and hotel complexes to generate tax revenue."

The Supreme Court majority isn't devoid of reason of course: they suggest that local (elected, presumably..hopefully!!) officials, not the federal judiciary, knows best its laws and its community's interest, and that is a strong argument.

However, even more compelling to me seems a person's right to live in the home he/she has purchased rather than having to move somewhere less desirable and convenient, which often happens due to private initiatives which push out people of lower-incomes. (A big example of this here in Chicago is what is going on in the Cabrini Green area, what they are now calling "Old Town Village," "North Town," etc., to remove the Cabrini Green stigma as well as the residents and make room for expensive condos and townhomes).

These private iniatives guarantee a safer, revitalized community, but often they just result in wealthier people from other revitalized communities moving in. The courts can only do so much of course, but this is a necessary policy issue to be addressed, especially before a community decides to call the private office and condo developers in for an easy solution.


Chris said...

I agree. 'Nuff said.

Also, read O'Connor's dissenting opinion (joined by Rhenquist, Scalia, and Thomas}...she's lividly pissed:

"But nearly any lawful use of realprivate property can be said to generate some incidental benefit to the public. Thus, if predicted (or even guaranteed)positive side-effects are enough to render transfer from one private party to another constitutional, then words "for public use" do not realistically exclude ANY takings, and thus do not exert any constraint on the minent domain power. [...] Whatever the details of Justice Kennedy's as-yet-undisclosed test [to "divine illicit purpose"], it is difficult to envision anyone but the 'stupid staff[er]' failing it."

Elaine said...

Woah, you and I agree, Chris! Let this be noted as an historic moment on my blog.

Yeah, O'Connor has a good point especially in terms of where do you draw the line on what constitutes "public use"? "Illicit purpose" sounds like a pretty problematic test as seems like that will legitimatize almost any instance of seizure because there is almost no burden on authorities to justify the seizure (any purpose can be said to be illicit).