Blogs > Liberty and Power > Kelo and Eminent Domain

Aug 26, 2005 7:40 am

Kelo and Eminent Domain

I am a bit surprised to see that the day came and went without a single Liberty and Power blog post on Kelo vs. New London, which was argued before the Supreme Court today. With Ashcroft vs. Raich, Kelo makes this Supreme Court term arguably the most important in many years for advocates of limited government, freedom of commerce, and private property rights.

Kelo seeks to overturn the established precedent holding that governments may seize private property and, provided a"just" compensation is given--then transfer it directly to other private entities. The rationale? So-called"public interest."

Now this is clearly not what the Fifth Amendment envisioned when it held that governments may seize property for"public interest." The plain meaning of the amendment was to provide for the building of government facilities alone; indeed, this section of the amendment seems written precisely to avoid the conditions under which we now suffer. And suffer we do; since 1982, eminent domain has been used some ten thousand times to transfer private property from one owner to another.

Clearly this is grossly unfair. It represents a major step toward the disintegration of private property rights in any sense whatsoever, for when the government can take your property, directly and wholesale, and transfer it to someone else,"your" property can hardly be called your own.

Here is the New York Times on the case; from what I can tell (and quite surprisingly), the Justices seemed to be leaning toward the homeowners and against the government, although it's still far from clear how they will rule:
If a city wanted to seize property in order to turn a"Motel 6 into a Ritz-Carlton, that would be OK?" Justice Sandra Day O'Connor asked.

"Yes, your honor, it would be," Horton replied.

The justices expressed sympathy for the longtime residents. At the same time, they questioned whether they have the authority to stop the town's plans.
O'Connor is exactly right to be asking this question, because once eminent domain can be used in this manner, there is no remaining principle to which one can appeal. Eminent domain as it now stands is a license for governments to micro-manage the economy; this license must be revoked.

Timothy Sandefur has a substantial collection of links about Kelo; in recent days his blog has been giving the issue thorough and detailed coverage. There are editorials, interviews, news pieces, and primary sources, including Sandefur's amicus brief, which very convincingly argues for the homeowners. Mr. Sandefur's work is always marked by its sound reasoning, well-chosen arguments, and deep erudition. I encourage readers to pay him a visit and educate themselves on the case.

[Crossposted at Liberty & Power.]

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