There are already those chiding us for getting all hysterical over the Kelo case, urging us to not read too much into the Court's decision. Those unfazed by the Kelo decision argue that the Supreme Court simply found that states sometimes - and in a very specific set of circumstances - have a compelling interest in the business of economic development, and that those interests may sometimes override property rights, which were never absolute anyway and which the law has been whittling away for decades (e.g. ever since blight - as opposed to 'public use' - was legally accepted as a compelling interest which justified the invocation of 'eminent domain').
There is some truth to the idea that the court accepted the use of 'eminent domain' only in a very specific set of circumstances. What's troubling is that those circumstances seem to be ever-broadening. None of that should be surprising. Students of government know that government will always broaden - not restrict - its power if left unchecked. Disagreement over the Kelo case may stem from deep philosophical differences over the concept of property and its place in our legal system, but, less philosophically, it arises from disagreement over whether states should be in the business of economic development at all, apart from creating a business-friendly atmosphere.
I have argued for some time that states should not be in business at all, particularly since they have the fortune of expanding their business by point of gun; and states that baldly assert that they are looking for opportunities of expanding their tax revenue won't find themselves with many voters left to legitimize their power. I further believe that the Kelo decision is the logical outcome of economic development programs that inject states and local governments into the private marketplace, that put states into the business of expanding their tax base and using command and control models to steer their local economies. After all, if a legitimate purpose of state power is to engage in centralized economic development, then, almost by definition, economic development schemes represent a compelling interest. And a compelling interest is all that is needed now to invoke 'eminent domain'. And, of course, the grander the vision, the bolder the plan, the more compelling the interest.
Law student, Elizabeth Kreul-Starr makes the connection. She argues against her local Economic Development Corporation's attempt to invoke 'eminent domain' against a vacant restaurant in order to further their downtown development plans. In economic development schemes run amok, Kreul-Starr finds much of which to be frightened, including a disincentive to entrepreneurship:
It is true that there are valid public policy reasons -- including health and safety concerns -- for supporting the use of eminent domain where property is actually blighted or in a state of decay. Kelo's home, however, is not blighted. It is not in a state of disrepair. It is simply not as profitable to the city of New London as the new development will be. As Justice Sandra Day O'Connor noted in a powerful dissent, "[n]othing is to prevent the state from replacing any Motel 6 with a Ritz-Carlton, any home with a shopping mall, or any farm with a factory." The prospects are terrifying. In a 5-4 decision, the Supreme Court has sanctioned the right of the government to take your home and build something that will bring in greater tax revenue.
Even accepting Justice Stevens' argument that promoting economic development is a traditional function of government, eminent domain is not a prudent or necessary avenue for doing so. Rather, the government should decrease the barriers to conducting business. Decreased regulations, lower taxes, and less stringent licensing requirements are proven means of triggering economic growth -- there is no empirical evidence to suggest that seizing Kelo's home will do the same. Further, in trampling property rights, the government is actually creating disincentives to private investment. People are unlikely to spend money to improve their homes and businesses with the threat of government seizure looming overhead. Economic development is a desirable end, but eminent domain is not an appropriate means to that end.
Chapel Hill is wise to disallow the condemnation and government purchase of the Wicked Burrito. Though the Supreme Court has sanctioned the use of eminent domain powers for economic development, state and local governments retain the right to limit their use of eminent domain powers to projects that are truly for the public use.
She's right. But it's unfortunate that the protection of property now depends on each individual state - and not the U.S. Constitution.
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