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Legislative Responses to Kelo:

Donald Lambro reports on legislative responses to Kelo in Washington and around the country:

Fueled by mounting grass-roots anger over the high court's 5-4 decision last month in the Kelo v. New London eminent-domain case, several state legislatures are expected to act on some kind of statutory ban before year's end and more are expected to take action next year.

Legislation in the House and Senate already has drawn surprisingly strong support across the political spectrum -- from House Majority Leader Tom DeLay of Texas on the right to Michigan Rep. John Conyers Jr., the ranking Democrat on the House Judiciary Committee, on the left.

According to the article, several states have already introduced bills prohibiting transfers of property to private commercial interests.

The American Legislative Exchange Council (ALEC) is also drafting a model bill for the states that would declare that "the power of eminent domain shall be available only for public use," such as the development of roads and other public facilities.

Ron Burgundy (mail):
Part of me wonders whether, despite all of the outrage and criticism directed at the supreme court for its decision in Kelo, this is exactly what they intended. And perhaps its for the better.
7.11.2005 5:44pm
Robert Ayers (mail):
I remember reading, in the Kelo context, that a number of
states currently do not allow eminent domain to transfer property to new private owners. And listed along those states was California. If this is true, then I feel that such bills will be flawed by "the blight loophole".
For San Jose California is the poster-child city for
"redevelopment" via eminent domain and the threat of
eminent domain.
7.11.2005 6:13pm
Steve:
Of course, what the "grass-roots" is really upset over is the fact that their state has had this power all along and they're just now realizing it. States have been free to limit their eminent domain power all along, and many have. I guess now legislators will be able to characterize this as a response to that awful Kelo decision, though, rather than admitting that they could have passed these limits at any time if they were really so concerned about property rights.

And I think Ron Burgundy called it. Kelo was not a change in the law, but it sure was a wake-up call.
7.11.2005 6:24pm
jd:
"Of course, what the "grass-roots" is really upset over is the fact that their state has had this power all along and they're just now realizing it."

To say that is to endorse the majority's opinion in Kelo. Meanwhile, most of us seem to think that the majority granted a power that was not previously permitted.

Thus, your argument is flimsy. Legislatures generally are not in the business of needlessly reiterating that which the constitution already says explicitly. At best you might fault the legislatures for not previously creating criminal or punative civil liability for improper takings, but I think that not doing so merely reflects a deference toward the other organs of government
7.11.2005 6:42pm
frank cross (mail):
jd, the Thomas dissent itself makes pretty clear that he thinks the majority was consistent with the existing precedent.
7.11.2005 6:53pm
Cheburashka (mail):
Wasn't there a famous case in Hawaii, before Kelo, in which the Sup Ct approved a massive eminent domain transfer of property from large landlords to the tenants?

I think its pretty absurd to be complaining about this issue now.
7.11.2005 7:25pm
JohnO (mail):

Wasn't there a famous case in Hawaii, before Kelo, in which the Sup Ct approved a massive eminent domain transfer of property from large landlords to the tenants?

I think its pretty absurd to be complaining about this issue now.


Yes, the proffered justification for the taking in the Hawaii case was to eliminate what was described as a "feudal" landowning system in Hawaii, where most of the land was in the hands of a few owners who then leased it out to people.
7.11.2005 7:29pm
jd:
"jd, the Thomas dissent itself makes pretty clear that he thinks the majority was consistent with the existing precedent."

That isn't particularly conclusive and does not contradict what I said.

I doubt very many people thought about the courts prior opinions at all. After all, public opinion is almost always in the first instance plain meaning and in the second instance as was shaped by active debate.

Where was the debate on this subject among the general public? Nowhere.

Simply because precedent exists does not mean people are generally looking at it or perceiving the implications.

Further, you are repeating the logical error that simply because the court says it is so, it is so. In the minds of the public the court was, is, and will continue to be wrong on this issue. The precedent is simply not relevant when assessing the motives and actions of people in the sweeping way that the original post did.

Consider: the constitution does not explicitly protect what color my shirts are allowed to be, but you can be pretty sure that no one considers such an invasion on my liberty to be possible--thus surprise, surprise I'm equally certain no legislature has yet acted to explicitly protect my shirt color liberty.
7.11.2005 7:43pm
Steve:
Well, gee, a whole lot of states put some pretty harsh restrictions on eminent domain before Kelo came out. I guess they just enjoyed passing superfluous laws.

Eminent domain is a creature of state law. It's silly to contend that states never defined the scope of that power because "oh, the Supreme Court will surely step in if it ever gets misused." The reason many states didn't restrict themselves is because, until Kelo, there wasn't a lot of public pressure on them to do so.
7.11.2005 8:16pm
rollins (mail) (www):
jd, I think what most people thought before is irrelevant. The Court's precedent made the Kelo opinion an easy step. The Berman decision glosses over the fact that perfectly good stores were being taken along with the slum property - read the lower court's opinion in the case. The Supreme Court's response to this:
"If [Congress] decide[s] that the Nation's Capital should be beautiful as well as sanitary, there is nothing in the Fifth Amendment that stands in the way."
Also, while there was a split in the states over the use of eminent domain, many states that use it have done so in very much the same way New London is using it.
7.12.2005 3:34am