Monday, August 01, 2005

Eminent Domain Nationwide

As we have predicted, the Supreme Court’s Kelo decision is setting off a firestorm all over the country. Saturday’s front page story in the New York Times looks at the phenomenon and rightly points out just how ideologically diverse the coalitions against eminent domain are shaping up to be. Underscoring this strange bedfellows’ alliance is the fact that Maxine Waters and Tom Delay have both criticized the Court’s ruling.

What is particularly interesting is how the Court’s ruling, by more or less removing the judicial barrier to public taking, has “set up a summer of scrutiny over a power that has been regularly used but little discussed for decades.”

As one observer remarks, “The intense reaction – this backlash – has caught a lot of people off guard.”

Even though we disagree with the rationale of the majority opinion in the case, we believe strongly that the issue belongs at the state and local level and that public hearings on the issue should be a prerequisite to developing public policy.

What is also fascinating in this regard is the depth of the public reactions. Connecticut’s Governor Rell, likening it to the Boston Tea Party, has called for a moratorium until the legislature can make some changes in stae law. In addition, the Wall Street Journal/NC News poll this month has placed property rights as the legal issue that most concerns Americans.

Pointedly, however, once the initial furor dies down, it’s hard to believe that most state governments, being governments, will eagerly move to take away a strong prerogative that most have exercised, for years, without much scrutiny. That is why it is so important for opponents of liberal taking statutes to organize and educate potential stakeholders in the eminent domain fight. We need to have clear ideas of our own – some bottom line positions that are non-negotiable – in order to ground legislation that symbolically seems to address our concerns but actually leave so many caveats in place that the final law has few tangible obstacles to public taking.

The New Republic and Judge Roberts on Eminent Domain

We have already expressed disappointment at the New Republic’s take on eminent domain and, since they have editorially supported the Supreme Court decision, it might make sense if they gave some thought to how state law could be better crafted in order to address the concerns of small business and property owners.

In discussing Judge John Robert’s student opinion on the Taking Clause, Jeffery Rosen offers some intriguing thoughts that might be a first step in this direction. Rosen writes that Roberts felt that the phrase “just compensation” means that the literal interpretation of public use might give way somewhat to “changing norms of justice.”

In that youthful opinion Roberts, building on the work of Frank Michaelman, endorsed a “constrained utility model.” We definitely invite comments from anyone who has further insight into this concept but our sense is that it might be a useful point of discussion in the effort to balance equities. The devil, as always, is in the details.