Kelo and Stevens: Hello, We're Glad He's Going

The Economist takes a look at the retiring Supreme Court Justice Stevens and his role in the controversial Kelo decision on eminent domain-a decision it sees as the justice's "worst." "But his opinion in Kelo v New London (2005) was simply terrible. The case was about a private developer in New London, Connecticut, who wanted to raze some waterfront homes to build an office block and some posh apartments. The owners didn't want to sell. The city decided to force them to, calculating that the new development would create jobs and yield more taxes."

Of course, what makes the decision so shady is the redefinition of the public use clause of the constitution: "Under the 5th amendment, the government may seize private property only in exceptional circumstances. The land seized must be put to “public use”, and “just compensation” must be paid. “Public use” has traditionally been taken to mean something like a public highway. Roads would obviously be much harder to build if a single homeowner could hold out forever or for excessive compensation. The government's powers of “eminent domain” have also been used to clean up blighted slums. In this case, however, the area was not blighted, and the land was not going to be put to a public use, so the seizure was plainly unlawful. Amazingly, Justice Stevens--and a slim majority of the court--said it was fine. Rejecting “any literal requirement that condemned property be put into use for the ...public”, he said it was enough that the seizure should serve some vaguely defined “public purpose”—such as those new taxes."

The consequence of this logic is to create an, "anything goes," scenario-and the constitutional protection is rendered null and void: "This massively expanded the government's power of eminent domain. “The spectre of condemnation hangs over all property,” fumed Justice Sandra Day O'Connor in dissent. “Nothing is to prevent the state from replacing any Motel 6 with a Ritz-Carlton, any home with a shopping mall, or any farm with a factory.”

But the Kelo decision did generate a backlash: "Most Americans are repelled by the idea that the state might take your house and give it to Donald Trump. (This is not rhetoric: New Jersey once tried, unsuccessfully, to seize someone's home because The Donald needed somewhere to park limousines outside one of his casinos.) Since the Kelo ruling, no fewer than 34 states have passed laws or constitutional amendments aimed at curbing the abuse of eminent domain. At the mid-term elections, voters in ten states approved measures curbing politicians' power to seize private property, all by wide margins. Only two ballot initiatives failed, in California and Idaho, and that because they clearly went too far. Re-worded, they could easily pass."

New York, alas, is way behind the trend with Senators Perkins and Flanagan-as well as Assemblyman Brodsky-swimming upstream against the powerful forces looking to protect condemnation rights at all costs. Still, Nick Sprayregen has opened up a small window of hope with his recent court success against Columbia U's efforts to run off with his property, and our crew at Willets Point is also still standing against the same forces who believe that it is the state's unalienable right to seize your property on a whim.

And, as we have found out at civic meeting after civic meeting, public opinion is on our side: "Public revulsion against such seizures is visceral and nearly uniform: polls find between 85% and 95% of Americans are opposed to them. Political affiliation makes no difference. Republicans hate to see property rights violated and individuals bullied by the state. Democrats hate to see the state's coercive power hired out to big corporations, and worry, correctly, that the chief victims of eminent domain abuse will be the working class and ethnic minorities."

And this revulsion is continuing across the country: "The backlash may end up strengthening property rights.... Just as the courts keep tabs on Congress and the executive, striking down unconstitutional laws and constantly reminding the president that he is subject to the rest, so too can Congress, the states and ultimately the people curb the excesses of the Supreme Court. Kelo v New London was a terrible decision. But most states have now neutered it, and more will doubtless follow."

Justice Stevens is being remembered fondly for his, "empathy," for the less fortunate. Unfortunately, this newly discovered judicial principle that the current administration is using as one of its guiding principles doesn't extend to the less than rich and famous-such as Susette Kelo-as Sonya Sotomayor has already demonstrated in her reaction to the Port Chester, New York ED case. Let's hope that whoever the president chooses, she or he will view property rights as a bedrock constitutional principle. It would be an upgrade for sure over John Paul Stevens.