Thursday, June 23, 2005

Kelo v. New London

by Tom Bozzo

I am glad that I mentioned earlier that I can sometimes agree with conservatives (or didn't disclaim my ability to do so), as I find myself agreeing on something with a Supreme Court minority comprising O'Connor, Thomas, Scalia and Rehnquist this lunchtime.

The use of eminent domain to foster private development may be constitutional (and I'll have to bug Oscar, the con law guy, about the legal issues sometime after he's back from Europe), but that doesn't make it advisable. I would urge municipalities to resist the impulse to use their powers for such purposes.


It should be noted that the most conspicuous eminent domain case in Madison in recent memory, involving the demolition of the homes of the old Dotty Dumpling's Dowry among other Fairchild St. businesses to make way for the Overture Center's concert hall, would appear to be an old-fashioned public purpose. I nevertheless think the city and possibly the donor screwed up royal by failing to make the concert hall an anchor of the East Washington Avenue approach to downtown, where currently municipal parking lots and post-industrial blight dominate the cityscape.
No doubt we both see abuse. This ruling gives cities the power to take over private properties to build malls, Wal-Marts, or any private development that can make the city more tax money and/or bring jobs. I'm pretty shocked by it.

In Madison, I'm less concerned about the city taking land to allow Wal-Mart to build (because that will never happen), but I imagine a lot of businesses and homes (especially those that see their area shaded in the master plan) could be in trouble. They could build apartments where a house(s) was and that would apparently meet the new definition of public use.

In other areas of the country, this also gives the power to cities to kick poor or even moderately wealthy people out of their homes to build something else. In places where they like Wal-Mart (and they do in NE where I'm originally from), big corporations could potentially use favor with local politicians to push the little guy out. This gives more power to corporations, and less power to the little guy.

I'd say this is a bad ruling for anyone who doesn't have the favor of local politicians and it will lead to more corruption by local politicians/developers.

Good possibly for cities and corporations, bad for people.
Interesting how this decision puts odd bedfellows together...I was frankly surprised at the depth of conservative reaction against the ruling, given that large corporations/big developers stand the most to gain from this.

This issue serves to highlight a tension conservatives have always had: a pro-business and growth agenda contrasted with a strong small-goverment libertarianism. Mind you, all political parties are subject to similar tensions regardless of their place on the politcal spectrum, and there is nothing a priori wrong with this, but how conservatives resolve this in the coming years (given that they are currently in power) should be interesting. The war in Iraq, the issues concerning the Patriot Act, local/state control, all ultimately to my mind point back to this fundamental tension.
Yes, I too found myself agreeing with Scalia and the other dissenters on this. I haven't read the rulings yet, but my goodness, the potential for abuse!
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