Hysteria Over Court's Decision is Unwarranted

June 28, 2005

This op-ed appeared June 28 in the Gainesville Sun, Florida Times-Union and Tallahassee Democrat.

By: Michael Allan Wolf
Michael Allan Wolf holds the Richard E. Nelson Chair in Local Government Law at the University of Florida’s Levin College of Law. He has published and taught courses on a variety of issues affecting local government policy, and his areas of expertise include land-use planning, urban revitalization, and eminent domain.

Critics of yesterday’s Supreme Court?s Kelo decision, affirming that government can use the power of eminent domain to further economic development, are exaggerating the decision’s impact.

The 5-4 decision allows the economically distressed City of New London, Conn., to replace a residential neighborhood with office space, a hotel, new residences and recreation areas. Most landowners willingly sold their properties, but a few homeowners refused the city’s offer of compensation. Dissatisfied by the fair market value guaranteed them by law, they instituted a lawsuit that made its way all the way to the Justices and to the attention of national and local media, the pundits, and their often ill-informed "experts."

Contrary to the horror stories spread by the supporters of the homeowners, not all Americans? homes are at risk. In fact, in many states, government officials are restricted in their use of eminent domain power for economic development purposes, for example, by laws mandating that blight must be present in the targeted area.

This was no sea change in established law. In fact, the justices in the majority were the ones refusing to rock the boat. For more than a hundred years, federal and state courts have broadly interpreted the term "public use," which appears in the fifth amendment ("nor shall private property be taken without public use). In each generation, duly elected government officials have allowed the use of eminent domain to enable the engine of progress to benefit—be it mills, railroads, mining, factories, shopping malls, big-box stores, or, as in New London, a pharmaceutical research facility. And, for the most part, judges have not stood in the way of this progress.

Despite all the chatter about property rights and homes in danger, it must be remembered that the U.S. Constitution guarantees all property owners just compensation when their property is taken. This is not a token payment, but fair market value.

History may show that the New London decision was less important for how it affected private property owners than for the ironies it revealed about the current Supreme Court. The only truly surprising aspect of the case was that Justice Sandra Day O?Connor, who wrote the dissent in the Kelo case, wrote the opinion in a 1984 case that upheld a very broad-based use of the takings clause by the state of Hawaii, allowing property to be taken from one private party and transferred, upon payment of just compensation, to another private party.

The five justices who refused to strike down the taking -- John Paul Stevens, joined by Stephen Breyer, Anthony Kennedy, Ruth Bader Ginsburg, and David Souter -- are moderate or left-leaning. Yet, in refusing to elevate federal law over local law, they ignored the pleas of homeowners and elevated the interests of the powerful Pfizer Corporation and its allies in government. Moreover, the refused to elevate federal constitutional law over the law of the states.

That sounds like pro-business, federalist conservatism.

The dissenters -- O?Connor, joined by William Rehnquist, Antonin Scalia, and Clarence Thomas -- attempted to play the role of judicial activists, trying to use federal constitutional law to reverse the decisions of duly elected lawmakers. O?Connor even railed against "those citizens with disproportionate influence and power in the political process, including large corporations and development firms.”

That sounds like good old-fashioned, anti-states? rights liberalism.

The bottom line is that, after this decision, the future of eminent domain law is in the hands of state and local elected and appointed officials. While the Michigan Supreme Court did recently reverse its previous position and rendered an opinion more in line with yesterday’s dissent than the majority, we can expect that most of the moves for change will now be in state legislatures, not courtrooms.

Conservatives, moderates, and liberals alike can probably agree that that is the best place to make these socially and politically charged decisions.