Kelo, Eminent Domain and Economic Revitalization

(Blade Runner, 1982) The high-tech future of a polluted planet being abandoned for off-world colonies and the remaining society run as a police state
Photo Credit: © Warner Bros Pictures
So I go to blogger Eternity Road to see if there is anything new written about our tolerant Muslim brothers, when I come across: Your Curmudgeon has seldom read an Executive Order with great pleasure, but this one rings all his bells:
Executive Order: Protecting the Property Rights of the American People
By the authority vested in me as President by the Constitution and the laws of the United States of America, and to strengthen the rights of the American people against the taking of their private property, it is hereby ordered as follows:
Section 1. Policy. It is the policy of the United States to protect the rights of Americans to their private property, including by limiting the taking of private property by the Federal Government to situations in which the taking is for public use, with just compensation, and for the purpose of benefiting the general public and not merely for the purpose of advancing the economic interest of private parties to be given ownership or use of the property taken.
Well, this was not entirely unexpected, indeed 5 states last year have already moved to soften the commercial angle to "public use" of Kelo, and almost every state legislature is considering restricting the use of eminent domain strictly for economic development, enhancing tax revenue or transferring private property to another private entity (or primarily for those purposes).
Those who like details can read each of the state bills summarized here with a link to the legislation or to the legislature's bill tracking system.
As for 2006:
The Colorado Legislature passed three of eight eminent domain bills presented in the 2006 session.
House Bill 1411 preserves the ability of urban renewal authorities to take property to eradicate blight, but requires that the need to eradicate blight be proven by clear and convincing evidence. That could reduce the ability of municipalities to designate areas as blighted and therefore subject to condemnation.
Florida:
Public outrage about eminent domain abuses combined with the action of groups like the Coalition for Property Rights in Orlando moved legislators to pass an eminent domain reform bill to limit the powers of local government entities.
Gov. Jeb Bush signed that bill, H.B. 1567, into law last week, making it more difficult for municipalities to take private property through eminent domain and turn it over to other private entities.
Pennsylvania:
Local governments will have a much harder time using eminent domain for private development under a new Pennsylvania law signed by Gov. Ed Rendell earlier this month.
But in Pittsburgh, much of the impact won't be felt for seven years.
The new law requires that property meet several criteria to be considered "blighted," a designation that allows a local government to condemn property and turn it over to a private developer.
Those designations of "blight" also now will automatically expire within 20 years.
Minnesota:
Gov. Tim Pawlenty on Friday signed into law a bill that restricts local governments' abilities to seize private homes and business for economic redevelopment.
The bill limits the power of cities, counties and townships to use eminent domain, which is the power of government to condemn private property, for tax-generating shopping malls and office parks.
Governments could still use eminent domain for public uses, such as parks, bridges, roads and schools, or to restore severely blighted or contaminated property. But they will have to pay businesses owners the financial value of their company on top of costs for the land and building.
"They will have to pay businesses owners the financial value of their company on top of costs for the land and building." But this should always be included in any condemnation.

Expo67, 1967, Montréal - An era where
everything was possible and the future
would see high-tech cities rebuilt over
established city footprints/patterns
Photo Credit: ecosensual.net
Kieran Shanahan, a Raleigh attorney and former member of the Raleigh City Council, has launched a new statewide organization that will advocate for limits on the use of eminent domain to seize property in North Carolina.The organization, called the North Carolina Property Rights Coalition, is a nonprofit coalition of individuals including Raleigh City Council member Philip Isley and Durham City Council member Thomas Stith, among others.
Although Senator Jon Cornyn (R-Texas) has introduced a bill to limit federal eminent domain use and abuse, our libertarian friend A Stitch in Haste wonders if that would actually be detrimental from a libertarian perspective? Read also House Passes "No Federal Funding" Eminent Domain Bill,
The House of Representatives has passed, by a 376-38 margin, a bill preventing the use of federal funds to subsidize private-for-private eminent domain takings by state and local governments.
From Reason Foundation Commentary:
Eminent domain legislation introduced in the 2006 legislative session was still active in 25 other states, including California, Colorado, Connecticut, Florida, and New York. Legislation introduced in Mississippi, Virginia, Washington, and Wyoming failed to pass in the 2006 session. In addition, New Mexico's Gov. Bill Richardson vetoed an eminent domain reform bill passed by the state legislature.
[...]
Though the Kelo decision cast a dark cloud over the landscape by exposing how frail the protection of private property rights has become, the silver lining is that popular support for private property rights protection has surged since the Kelo ruling, with efforts at all levels of government to restrict the power of eminent domain to a more limited set of uses. Prior to Kelo, there was little recognition among average citizens of the power of government to take land from one owner and give it to another. Perhaps the biggest irony of Kelo is that, despite the Court's ruling, it has led to a greater awareness of eminent domain abuse and a strengthening of private property protections across the country.
Craig Westover,
Third thoughts on KeloThe problem with the Court’s position is that it turns a substantive right, private property, into a procedural right, due process. In that regard, Kelo is no different than campaign finance reform, which also makes a substantive right, free speech, into a procedural right, a rigid process for making campaign contributions that applies equally to everyone. Substantive rights should not be replaced by process. That's the fundamental and very clear problem with the Kelo decision.
Kelo was both a bad and ultimately good decision. The Libertarian in me does not want the government to be able to take my private property and hand it over to another private entity for non-public uses. However, if Kelo had failed, then according to John Hinderaker:
Thus, if the minority had prevailed, no municipality in America could condemn any property in order to carry out an "economic development" project. This would have the practical effect of making such projects virtually impossible.
It is noteworthy, however, that the Supreme Court held long ago that a governmental unit can use its eminent domain power to relieve "urban blight" (see Berman v. Parker, 348 U.S. 26, 1954). That principle was not challenged by any party in the Kelo case or by the Kelo dissenters (with the possible exception of Justice Thomas). So, had the dissenters been in the majority, a city would be powerless to carry out a redevelopment project in a neighborhood that is only depressed--like Fort Trumbull--but if it waited until the neighborhood is actually blighted, a redevelopment project would be permissible. Permissible, but probably too late. It is not obvious how this result would represent an advance for either individual rights or public policy.
Here's an interesting take on The Mythology of Holdout as a Justification for Eminent Domain and Public Provision of Roads - a well documented discussion on eminent domain.
Related:
Before Kelo there was the Atlantic City Case:
While individual redevelopment projects have been controversial, the eminent domain issue itself attracted little national attention—until the Institute for Justice rallied to the defense of an Atlantic City, New Jersey, widow whose home was threatened by Donald Trump's plans to build limousine parking for his casino. (The institute prevailed in 1998.) In a hefty report published in April 2003, the institute identified 3,700 properties across the United States that were condemned for private use over a five-year period. Though there's no reliable historical data, some experts believe these takings have become considerably more commonplace. Jeffrey Finkle estimates they doubled during the 1990s.
The futuristic cities so mad with light and unimaginable density you see in this post will be impossible without Kelo. Cities by themselves are not railways or utility lines but in the far future, when all of us now alive have become food for maggots and crows, just living in CITIES by themselves will be a public use.
And when our Sun begins to spark and smoke like a dying candle, whereto will we as a species move? Will we take an American Constitution with us along with two of every animal? Who gets dibs on that great waterfront property on Coruscant, the most important planet in the Corellian Trade Spine? Things that keep me awake at night.


