In Defense of Kelo

The Supreme Court's decision last week in Kelo v. New London has created quite a stir among conservatives and libertarians. Editorial pages and blogs this week were filled with sky-is-falling rants about the demise of individual property rights. Even the normally unexcitable George Will joined the chorus of hyperbole, writing the following:

"Those on the receiving end of the life-shattering power
that the court has validated will almost always be
individuals of modest means. So this liberal decision --
it augments government power to aggrandize itself by
bulldozing individuals' interests -- favors muscular
economic battalions at the expense of society's little
platoons, such as homeowners and the neighborhoods
they comprise."

There's one major problem with this analysis, though. The law of eminent domain that Will is describing has always existed. It wasn't created, or even significantly altered, this week. The government has always had the power to appropriate private land for public use (so long as it fairly compensates the owner). Moreover, the Supreme Court established way back in 1954, in the case of Berman v. Parker, that economic redevelopment projects constitute a valid "public use" of property. This has been black letter law for over 50 years.

The Kelo case focused on a much narrower question: whether the taking of property for economic redevelopment is limited to "blighted" neighborhoods or whether it applies to any private property. In other words, the petitioners wanted the Court to rule that the government's eminent domain power could only be used on poor neighborhoods, that middle class neighborhoods were exempt. On the ACS Blog yesterday, Doug Kendall, the Executive Director of the Community Rights Council, posted a thoughtful and thoroughly persuasive defense of the Court's decision, which I encourage you to read. Kendall makes the following important point:

"There are important questions about the disproportionate
impact that eminent domain can have on the impoverished
and the politically powerless. For example, compensation
for the displaced at times seems less than fair, particularly
for those who rent, rather than own, property in areas
condemned. We should make sure that all members of
the community are treated fairly as economic
redevelopment projects go forward. But those questions
were not raised by the Kelo case, and the answer proposed
by Justice O’Connor, which would have exempted the
middle class from the use of eminent domain for economic
redevelopment, would have made it less, not more, likely
that the political process will ensure that eminent domain
is employed in a way that adequately protects this country’s
most vulnerable citizens."

If history has taught us anything, it's that the political process does a poor job of addressing problems that only affect the poor and the powerless. Conservatives and libertarians are right to worry about the abuse of the eminent domain power. But the only way to ensure that political pressure prevents abuse of that power is to make sure that we are all in this together, that the same rules apply to the rich, the poor, and the middle class. The dissenters in Kelo would have exempted all but the most powerless and impoverished communities from the government's reach. That would have hurt, not helped those whose interests are the most threatened by powerful interests groups.