Balkinization: The Myths of <span style="font-style:italic;">Kelo</span>

The Myths of Kelo

Marty Lederman

I encourage anyone outraged by, or otherwise interested in, the Court's recent Kelo decision to take a careful look at today's testimony in the Senate Judiciary Committee by Columbia Law Professor Thomas Merrill. Merrill -- by no stretch of the imagination an unadulterated opponent of takings claims or a knee-jerk defender of local planning -- wrote an absolutely superlative amicus brief in Kelo that plainly had an impact on at least three of the Court's opinions in that case (the majority, Kennedy's concurrence, and even Thomas's dissent, which attempts to deal with Merrill's historical account).

In his testimony today, Merrill proposes some very thoughtful, and provocative, ideas about how to better protect homeowners through procedural and compensation-based statutory reform -- and he explains why it's a mistake to try to carve out particular categories of eminent domain for prohibition. Just as importantly, Merrill brings some much-needed perspective to bear on five unfortunate "myths" about Kelo that have taken hold in the public imagination, including:

Myth One: Kelo breaks new ground by authorizing the use of eminent domain solely for economic development.

Myth Two: Kelo authorizes condemnations where the only justification is a change in use of the property that will create new jobs or generate higher tax revenues.

Myth Three: Kelo dilutes the standard of review for determining whether a particular taking is for a public use.

Myth Four: The original understanding of the Takings Clause limits the use of eminent domain to cases of government ownership or public access.

Myth Five: Takings for economic development pose a particular threat to 'discrete and insular minorities.'

* * * *

Many readers no doubt will disagree with some of what Prof. Merrill has to say. But I think most will agree that this is the most formidable, and most important, defense of Kelo yet available.

Posted 5:15 PM by Marty Lederman [link]

Comments:

I am SO relieved to know that takings clause jurisprudence went bad a long time ago, not last month.

Granted, the Supreme court didn't arrive at that abomination of ruling out of the blue. Rather, what they did was bring to the everyday layman's attention just how rotten things had gotten without their noticing... That the legal system's notion of how (little) property rights should be protected had little resemblance to the public's.

The outrage was perfectly appropriate, it was merely belated.

# posted by

Brett : 5:53 PM

1) He cites "takings that facilitated agriculture and mining" and something with trademarks. This is not quite comparable to taking someone's home for the reasons supplied in Kelo.

2) "Admittedly, the holding of Kelo is not limited to multiple use projects that provide both economic benefits and traditional public 'uses.'" Yeah, that's the bottom line -- the specific facts aren't the pt, the law set forth is. The open-ended nature is half the reason why even some pretty moderate sorts are concerned.

3) This is not really a major issue in the oppostion, is it? And yes, it would have been much better if Kennedy wrote the opinion.

4) Again, original understanding is not quite the concern here for many (for some, sure). It was how far the opinion went one way. So, sorry, this is a bit of a strawman.

5) Half a pt. A laissez faire technique would hurt harm those with less juice to fight the special interests sure to be favored. The argument was taken too far, perhaps; OTOH, again it really wasn't a major pt.

The major pt was that local gov't, often in the pockets of special interests, was given a freer hand with particularly sweeping language (Kennedy's concurrence of uncertain effect) and that in the process someone's home, a home in the family before some of the justices were born, was seized.

Or something like that. Honestly, the five "myths" are somewhat not what the reg. Joe public (sorry) person seemed to be concerned with. As to his bottom line, I actually agree a federal law is probably a bad idea. His other comments as to solutions were also interesting.

The "myth" part was honestly not very satisfactory.

# posted by

Joe : 1:14 AM