Strengthening Constitutional Self-Government

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why Kelo wasn’t such a surprise

I know more than a little about public use law, because John Eastman & I co-authored an amicus curiae brief in Kelo for the Claremont Institute’s Center for Constitutional Jurisprudence. I have a few reactions to the outrage against the Supreme Court’s decision in Kelo, which people can consider for what they’re worth.

First, anyone who’s outraged by the result needs to understand that the law went south more than 50 years ago. In a 1954 case called Berman v. Parker, the Supreme Court gave local governments broad power to use "blight" as a rationale to redistribute private property, and suggested in the process that the Public Use Clause was a dead letter. My sense is that, by the 1970s and 1980s, local governments had gotten so accustomed to deference that they stopped using blight and started citing economic development by itself. Kelo just ratified that development.

To be sure, it’s a little more egregious when the city kicks an owner out purely to generate more revenue than when it does so on the pretext that the owner’s land is blighted because it doesn’t have a 2-car garage. But anyone who’s mad about Kelo should have been mad about Berman. I guess Kelo’s different because it’s a new decision, because condemnation is more prevalent now than it was in 1954, because pro-property groups are better organized now than then, and -- most of all -- because in Kelo the Supreme Court issued a holding that everyone can understand without complicating issues like "blight."

Discussions - 7 Comments

Remember when that family in Chavez Ravine was hauled bodily out of their house, and the bulldozers sent in, to prepare the land for Dodger Stadium.

Thank you, Professor Claeys, I wasn’t aware of that earlier ruling. Brings a new urgency to "slippery slope" arguments, doesn’t it? As for why people are so glum (and shocked), I think people can understand condemning property because of neglect...they see that as a legitimate governmental function promoting the common good. This latest ruling, however, goes well beyond the Pale in most peoples’ minds because it deprives us of equal protection under the law (just as affirmative action angers a significant number of people). Essentially, this ruling means that your property is at the behest of the State, and unless you can outbid competitors you really have no property rights. In the minds of most Americans (I hope), this is tantamount to turning us all into serfs of the State.

I, too, fail to see why Kelo is such a big deal. My grandfather was urban-renewed out of his Dayton inner-city store in 1958. They bulldozed everything and put up a single privately owned highrise that lost money and went bankrupt several times over the last 47 years.

This was an inner-city neighborhood with very poor, mostly white, residents. I worked there many Saturdays for my grandpa. I’m not sure how "blight" is different from simple poverty. This was a real neighborhood with stores, churches and employment opportunities for people. I consider the public housing projects many of these people ended up in to be true blight. So is the ugly high rise they put up.

Yes, thank you for the history lesson, Professor Claeys. Here’s some backround the sad story of Chavez Ravine. I was schocked to read, "Some residents resisted the orders to move and were soon labeled “squatters,” while others felt they had no choice and relocated. Most received insubstantial or no compensation for their homes and property."

blight=insufficent resources to bribe city councilmen

As a local government staff member with a planning background, I thoroughly understand Berman v. Parker. I even referenced "blight" as a taking justification in an earlier post.

You are right that Berman essentially broke the ground for Kelo. What Kelo does is make the abuse "real" for the average homeowner. "Everyman" now understands how big corporations can ravage a non-blighted suburb with the help of the local government elected officials. I think Kelo will prove to provide amble fodder for those pro-property rights groups you spoke of.

I would like to propose not to wait until you get enough money to buy different goods! You should get the business loans or consolidation loans and feel yourself free

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