In Kelo,
the Supreme Court ruled that it was constitutionally permissible
for the city government to take a group of working-class homes
from their owners and turn the parcel of land over to private
parties for the purpose of economic development. Kelo
thereby tapped into deep-rooted questions of money and class,
its result threatening to violate that most sacred of American
domains: the home.
The Kelo
decision is testament to the expanding use of police power by
the state for the advancement of private interests that are often
in cozy relationships with local municipal governments. To follow
the path of the takings locomotive that has chugged across this
country is to see how the meaning of private property has changed
in the United States from its original promise as a place of sanctuary
from outside interference to a contingent relationship in which
property is private and unmolested only at the sufferance of local
government.
Around the
nation, there are thousands of ordinary citizens whose lives have
been touched — and sometimes destroyed — by takings.
For decades, the takings locomotive was fueled by urban renewal
policies, now known by the more delicate term “urban revitalization”
(and no longer practiced in 1960s-style blunderbuss fashion).
But the Kelo case was fueled by a different type of fervor,
and one with far greater potential for mischief in the twenty-first
century: economic development. The homes of the petitioners in
Kelo were marked for eminent domain not because they
were blighted, but because they stood in the way of the city’s
plan to increase its tax base and jazz up what officials saw as
a depressed waterfront in their town.
Citizens
who had been the targets of economic development takings projects
long in the works before the Kelo decision suddenly found
the vocabulary they had lacked to express their anger. The Kelo
case, covered in depth by the media, crystallized the often Byzantine
nature of condemnation proceedings for the homeowners caught up
in them. Armed with a clearer understanding of what had befallen
them and an outlet for their outrage, they have been hitting the
streets in protest. Even Justice John Paul Stevens, who authored
the majority opinion in Kelo, said in a speech before
a bar association meeting in August that he personally regretted
the Kelo decision but had felt compelled to rule against
the homeowners, based on precedent.
What has
emerged from the ashes of the Kelo ruling is the rarest
of political birds, a Supreme Court Phoenix — a case that
lives on in political consciousness. If the Phoenix rises high
enough, it may result in state laws and a federal statute that
could render the Supreme Court ruling moot.
High
Court Blessing
In the Kelo
case, the high court ruled against 15 homeowners from a working-class
neighborhood in Connecticut, giving federal constitutional blessing
to what has become standard practice in a number of states for
many years (though expressly rejected in others). What it has
come down to is this: You may rest easy by your hearth (or behind
the cash register of your business establishment) so long as the
municipality in which it sits has not gotten a notion in its collective
head that your property would raise more tax revenue by being
taken in condemnation and given to a private developer, who would
then raze it to build what the local government deems necessary
in the name of economic development.
And lest
you imagine that the project for which your home or business could
be torn down would be something of great public purpose, such
as a hospital, a school, or a missile silo, think again. It is
far more likely, given the current pattern of economic development
takings in this country, that your home or business would be replaced
by a spate of condominiums, with an office park, a marina, and
a big-box retail store thrown in — all of them built, operated
for profit, and owned by private parties.
When your
business is taken, you will be compensated primarily for the value
of the real estate on which it sits and the “fixtures”
inside; you may kiss goodbye the value of assets such as licenses,
goodwill, location, customers, and most other intangibles. If
you are a homeowner, you will get the value of your home at the
time the condemnation made it virtually impossible to sell (and,
if you’re lucky, moving expenses). You will not be given
a dime to compensate you for the subjective value of your home
— that is, your emotional attachment to it. Nor will you
reap the windfall that will come with the revitalization of the
neighborhood; you’ll be long gone by then. That bounty will
be enjoyed by the folks who buy the condominiums to be built on
the land you once, so to speak, owned.
Since most
eminent domain proceedings are brought in state courts, there
are no official tallies of how many such cases there have been
or how many properties have been involved. Perhaps because it
is a round number — and a rather dramatic one — the
figure of 10,000 has been cited many times in the press to describe
the total number of homes actually taken in economic development
takings. As far as we can know, this appears to be wrong; nevertheless,
the figure has taken on a life of its own. According to numbers
published by Washington’s Institute for Justice, the libertarian
advocacy organization that represented the Kelo petitioners,
eminent domain was threatened in connection with 10,000 properties
and actually used in connection with 3,717 properties between
1998 and 2002; we don’t know how many of those were economic
development takings. Pennsylvania tops the list at 2,517 proceedings
filed. (That’s for all types of eminent domain cases —
including cases based on “blight,” another popular
way to take private property and engineer the development of cities.
But definitions of blight are notoriously loose.)
