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Institute for Justice and the Castle Coalition:

Kelo was litigated by the Institute of Justice, a first-rate libertarian public interest law firm; I think it's much to their credit that they could get even 4 votes -- the last case that squarely considered this issue, Hawaii Housing Authority v. Midkiff (1984), was unanimous, and Justice O'Connor and Chief Justice Rehnquist were on the side of the government there. I don't agree with them entirely as to Kelo, but I still very much respect their work, in this case and in others.

IJ has also been very successful fighting battles in lower courts, either under state constitutions or getting policies struck down under the "rational basis" test, the same test that now applies in the eminent domain "public use" analysis. Constitutional scholars may tell you that rational basis cases are virtually impossible to win (at least unless the courts conclude that the law improperly discriminates against some group, almost never an economically defined group). But IJ somehow manages to win them.

Finally, the IJ people are masters at using their cases to marshal public opinion. That often helps them pressure the government to change its policy even without a final decision in litigation. And it also helps them use cases, whether they win them or lose them, to build pro-economic-liberty sentiment generally; they're especially good at showing how economic liberty helps the little guy.

They're trying to do this with Kelo (and to incidentally raise money to fund their future work). Here's their new campaign:

Stop Eminent Domain Abuse

The Supreme Court put an UP FOR GRABS sign on your home. It said it's OK to take your property and give it to a politically connected private developer because that developer might be able to produce more taxes and jobs off your land.

Fight back! Join the Castle Coalition!

Greedy Clerk (mail):
Query where the Institute for Justice was when George W. Bush did the exact same thing -- condemned private homes -- in order to build a baseball stadium in Austin? Even funnier was Jonah Goldberg's comment yesterday on the Corner that Bush should condemn this decision --- sure, that would be really smart. . . .
6.24.2005 2:14pm
EugeneVolokh (mail) (www):
Well, since IJ was founded in 1991, and the taking Greedy Clerk refers to apparently happened around 1990, IJ was either not in existence, or had just started up. Even if they had been around for 10 years, a small and lightly funded organization can't exactly be expected to be everywhere at once, no? So fault Bush's eminent domain plans all you want, but leave IJ out of it unless there's really some evidence that they're somehow being inconsistent here.
6.24.2005 2:33pm
Riskman1 (www):
IJ was founde in 1991. GW's taking deal was in 1989.

Sad that the so-called liberal majority essentially argued "local government knows best..." This tells poor and middle class property owners "forget you" if you stand in our way of what we think is best for you. How brazen of the majority in Kelo to support New London's definition of "blight" to describe older, smaller, but tidy homes at issue in this case.

Reminds one more of USSR than I thought was the US.
6.24.2005 2:38pm
Baronger (mail) (www):
I've already written my Congressional representatives on this. But an organization is probably a better idea. It has always seemed to me that politicians listen more to action groups then to individuals.

Currently I'm seeing this as more of a libertarian issue that is cutting across party lines. All those libertarians who vote either Democrat or Republican, but don't want to throw away their vote on the Libertarian party are speaking up. Bringing Bush into this, is a non-sequitor. Personaly I wouldn't care who used eminent domain wrongly, it wouldn't change my opinion and has no place in the argument.
6.24.2005 2:48pm
PG (mail) (www):
Bringing Bush into this, is a non-sequitor. Personaly I wouldn't care who used eminent domain wrongly, it wouldn't change my opinion and has no place in the argument.

It matters nothing for the political affiliations of the people who speak up against such takings, but it does matter for having Bush himself do so. Certainly it was one of Bush's successes as owner of the Texas Rangers to have Arlington taxpayers build the Ballpark, but it was a business triumph, hardly a conservative/ libertarian ideological one. Other people might use this particular decision as an example of "judicial activism," but I think Bush's hands might be somewhat tied on doing so himself.
6.24.2005 3:11pm
arbitrary_aardvark (mail) (www):
Anybody know how things are going in new london now? Are the bulldozers coming, or do they go back to court and argue about "just compensation" for a few years? Are there new people on the city council? Are they comfortable with the publicity?
Sometimes IJ has lost in court but accomplished its goals because of the hoopla. I agree with Eugene's description of IJ's tactics and style. I can recommend IJ's CLE seminar, and it's "human action network" of people who have taken the seminar. IJ has been exploring setting up state and local chapters - look into joinng or starting a group in your area.
6.24.2005 3:13pm
Andy Freeman (mail):
> but it does matter for having Bush himself do so.

No, it doesn't. Bush was under no obligation to play under the rules as he'd like them to be.
6.24.2005 3:25pm
Rob Lyman (mail) (www):
Was the ballpark privately or publicly owned? If the latter, it's a different case, legally (although perhaps not morally).
6.24.2005 4:48pm
Daniellee (mail):
The kind of argument IJ is making really ticks me off. Why have a one size fits all judicially imposed remedy tht may or may not be in search of a problem? Why tar all local officials with the corruption brush-- isn't that just an excuse to allow for more "enlightened" judicial supremqcy?

Around here (East Tennessee) condemnations are controversial. Always have been. A nearby school board may very well not get its first choice for a site for a new high school because, if they can't negotiate a deal with the private owner, there probably aren't enough votes on County Commission to start eminent domain proceedings.

And I refuse to believe that all of our local officials are standing around with their hands out waiting for Wal-Mart to come along and grease their palms. This underlying presumption of corruption is one of the things that led to the abomination of campaign finance reform.

As I understand the state of play, several states prohibit these A to B transfers. In places where there has been abuse at the local level, that may be appropriate. In places where local officials respect property rights, they would be an insult.
6.24.2005 5:26pm
Rob Lyman (mail):
Daniellee

Can you think of a circumstance when an A to B transfer would NOT be an abuse? My sense is that they are inherently abusive and that justifies a blanket prohibition. You needn't presume corruption or "insult" toward anyone.

Most governments aren't out there actively trying to violate our rights every day. In that sense, all judicially enforced constitutional rights are "insults" and "solutions searching for a problem." That doesn't make them wrong.
6.24.2005 7:12pm
Daniellee (mail):
From the IJ ad:

"It said it's OK to take your property and give it to a politically connected private developer because that developer might be able to produce more taxes and jobs off your land."

That is the kind of sub rosa sneer at the integrity of elected officials that gave us campaign finance reform.

A to B transfers are not inherently abusive just because Story said so. If FMV was paid, I am not so sure the one in Kelo was. Job creation is to me less of a problem than some of the cases hwere the only objective seems to have been to increase the tax revenue base.

But why should the Lords and Masters of the Supreme Court of the United States lay down a uniform rule for the whole country when it has already been shown that state legislatures and state higher courts (recently, the Supreme Court of Michigan) can deal with the problem? If land ownership is now less secure in New Jersey than Michigan, and that is important to you, move to Michigan.
6.24.2005 10:15pm
arbitraryaardvark (mail):
link ap story
Bashman points to this article suggesting the legislature may intervene, to answer my own question above.
6.25.2005 3:36am