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Posts Tagged ‘kelo’

Kelo Day

Posted by Richard on June 23, 2008

Kelo Day - June 23, 2008

Three years ago today, the Supreme Court ruled 5-4 that the city of New London, Connecticut, could seize the home of Susette Kelo and turn it over to a private developer. A public purpose — more tax revenue — is the same thing as a public use, according to the liberal majority. It was one of the most egregious decisions of my lifetime. But there was a silver lining, according to the Institute for Justice, which represented Ms. Kelo:

The Kelo case sparked a nationwide backlash against eminent domain abuse.  Since that ruling:

  • 42 states have passed either constitutional amendments or legislation that provide greater protections for property owners facing eminent domain abuse.
  • Two state supreme courts have rejected the ruling while four others have said they are likely do so in a future case.
  • Property owners and community activists have stopped 23 projects throughout the country that abused eminent domain for private development.

 Ironically — fittingly, I'd argue — the land seized by New London still sits vacant three years later:

“New London’s Fort Trumbull project has been an unmitigated disaster,” said IJ Senior Attorney Dana Berliner, who litigated the Kelo case with Bullock.  “Despite the infusion of close to $80 million in taxpayer funds and three years elapsing since the Kelo decision, there has been no new construction in the area and nothing to show but brown, empty fields.  The developer was so desperate for funding that it applied to the federal Housing and Urban Development agency to obtain taxpayer-subsidized loans to build luxury apartments on the land where Susette’s neighborhood once stood.”

Today, Kelo Day, please make a donation to the Institute for Justice to commemorate this shameful event (the secure donation page is here ). Even a small donation — $5, $10, $25 — makes you a member of the Susette Kelo Liberty Club. If you can afford more, of course, please be generous. IJ and its Castle Coalition project are fighting eminent domain abuse all over the country every day. 

Here's a short (1:34) message from Susette Kelo herself:

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Good election news

Posted by Richard on November 8, 2006

As regular reades no doubt could guess, I’m not exactly cheerful about spending the next two years hearing about Speaker Nancy Pelosi, Ways and Means Chair Charles Rangel, and Judiciary Chair John Conyers. And I’m disappointed by the departure of Rumsfeld. Nevertheless, I’m basically a "glass half-full" sort of guy, and I think there’s some good news related to yesterday’s elections.

One big bright spot: the property rights protection movement racked up an impressive string of victories. Ten of twelve ballot measures passed, and eight of them are constitutional amendments (one victory, Louisiana, was in September). Only California and Idaho defeated citizen initiatives dealing with eminent domain. They were thrilled yesterday at the Institute for Justice:

“Election Day usually reveals how polarized public opinion can be as campaigns focus on highly divisive issues.  Today, however, the vast majority of voters across the country all agreed that the fundamental right to property must be protected,” said Chip Mellor, president and general counsel of the Institute for Justice, which represented the homeowners in Kelo before the Supreme Court.  “Citizens around the nation agree that the U.S. Supreme Court’s decision in Kelo was wrong.  As we’re seeing tonight’s results, this issue cuts across party lines, state borders and socioeconomic levels.”

“The American people are furious their property rights are up for grabs to the highest bidder,” said senior attorney Scott Bullock, who argued the Kelo case for the Institute.  “They understand that the U.S. Supreme Court declared open season on everyone’s property and the resulting momentum for eminent domain reform shows no sign of slowing.  The significant margins in the votes today show just how wrong a narrow majority of the Supreme Court was.”

The margins were truly significant, typically three or four to one.

Here’s another bit of good news: Dennis Hastert won’t run for minority leader. I’ve made clear my low opinion of Hastert. I think he bears much of the blame for the Republican losses. Hastert helped create the "culture of corruption" by dismantling the 1994 ethics and accountability reforms. His lack of principles, inarticulateness, and focus on wielding the levers of power helped create the widespread distrust of the Republican Party.

If the Republicans really have been chastened and want to mend their ways, in January they’ll follow Human Events’ advice and elect Mike Pence minority leader. Furthermore, they should correct a mistake they made when DeLay departed and pick John Shadegg over Roy Blunt for the number two post, minority whip.

More good news came via Josh Poulson, who argued that the GOP lost because it "abandoned its libertarian wing," and cited a couple of interesting related items. One is this post at about the growing clout of Libertarians:

GLUM Republicans might turn their attention to the Libertarian Party to vent their anger. Libertarians are a generally Republican-leaning constituency, but over the last few years, their discontent has grown plain. It isn’t just the war, which some libertarians supported, but the corruption and insider dealing, and particularly the massive expansion of spending. Mr Bush’s much-vaunted prescription drug benefit for seniors, they fume, has opened up another gaping hole in America’s fiscal situation, while the only issue that really seemed to energise congress was passing special laws to keep a brain-damaged woman on life support.

In two of the seats where control looks likely to switch, Missouri and Montana, the Libertarian party pulled more votes than the Democratic margin of victory. Considerably more, in Montana. If the Libertarian party hadn’t been on the ballot, and the three percent of voters who pulled the "Libertarian" lever had broken only moderately Republican, Mr Burns would now be in office.

The other item is Sen. Tom Coburn’s statement on the elections:

“The overriding theme of this election, however, is that voters are more interested in changing the culture in Washington than changing course in Washington, D.C. This election was not a rejection of conservative principles per se, but a rejection of corrupt, complacent and incompetent government.

“A recent CNN poll found that 54 percent of Americans believe government is doing too much while only 37 percent want government to do more. The results of this election reflect that … the Democrats who won or who ran competitive races sounded more like Ronald Reagan than Lyndon Johnson.

“This election does not show that voters have abandoned their belief in limited government; it shows that the Republican Party has abandoned them. In fact, these results represent the total failure of big government Republicanism.

“The Republican Party now has an opportunity to rediscover its identity as a party for limited government, free enterprise and individual responsibility. Most Americans still believe in these ideals, which reflect not merely the spirit of 1994 or the Reagan Revolution, but the vision of our founders. If Republicans present real ideas and solutions based on these principles we will do well in the future.

Read the whole thing. If you’re a discouraged limited-government type, libertarian or conservative, you’ll feel better — and you’ll be glad there are people like Tom Coburn in politics.

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Two views of the Kelo backlash

Posted by Richard on July 7, 2006

The Kelo ruling created a backlash against eminent domain abuse, but how strong and successful has that backlash been? Two TCS Daily columns offer very different perspectives on that question. One lamented the half-empty glass, and the other insisted that it’s half-full and filling rapidly.

Pejman Yousefzadeh played the pessimist in his June 29 piece, Unhappy Birthday, Kelo:

Just over one year ago, the Supreme Court validated eminent domain abuse in its decision in Kelo v. City of New London. At the time of the decision, it was predicted by some as way of consolation that the Court’s decision would prompt a spate of anti-Kelo legislation designed to curb eminent domain abuse. In every cloud, they say, there is a silver lining.

It has not turned out that way. And things will not improve until the issue of eminent domain abuse occupies a larger place in the public consciousness than it currently does.

Citing an Ilya Somin post at Volokh, Yousefzadeh lamented "toothless" reform legislation that fools the public, but caters to developers (and he put Bush’s executive order into this category), and quoted Somin to the effect that only two states’ new laws represent significant progress. Yousefzadeh blamed property rights advocates for not working hard enough:

The year after Kelo has largely seen anti-abuse forces fail in the political arena to organize any kind meaningful pushback against the dangers posed by the Kelo ruling. Despite grand promises of a backlash, one has just not come about. And it is not too late to foment a backlash. Thus far, however, the anti-abuse forces have not engaged on the issue of eminent domain abuse as strongly and as emphatically as they might have. And if their intensity does not change, their luck won’t change either.

Today, Bert Gall of the Institute for Justice (which argued the Kelo case) countered with Kelo’s Backlash: Imminent Success?, dismissing Yousefzadeh’s pessimism as totally off-base:

This pessimistic assertion is baffling because it simply can’t be reconciled with reality. In fact, the Kelo backlash isn’t just alive — it’s thriving and producing results that can only be described as historic.

Yousefzadeh cites the abstract of a paper by Timothy Sandefur of the Pacific Legal Foundation, which says that 15 states have passed reforms. However, as of July 3rd, the number of states that have passed reforms has grown to 25 — out of 45 states that had legislative sessions this year. And, it is possible that, in the next month, that number could grow to as high as 29. That’s a pretty impressive batting average for a backlash in its rookie year.

For those who continue to lament that the Kelo backlash hasn’t accomplished enough — either because the laws passed aren’t "good enough," or because total success hasn’t been achieved in the span of one year — a sense of perspective is the proper tonic. 

Gall argued that, far from being "toothless," many of the reforms have dramatically improved the legal situation in their states, generally by making bogus "blight" designations difficult or impossible and/or by putting the burden of proof on the government to demonstrate that a taking is for public use (instead of making the property owner prove that it isn’t).

Gall acknowledged that much more needs to be done and that the number of abusive takings increased after Kelo, but he insisted that the reform movement is a powerful, broadbased coalition fueled by strong momentum for further changes, including federal reform legislation. Pessimism isn’t warranted, he argued:

Those who discount the Kelo backlash because it has not yet changed every states’ laws should keep in mind that large-scale reform movements almost always take several years — if not decades — before they completely succeed. Judged by that standard, the backlash has enjoyed unprecedented success — especially when one considers that the beneficiaries of eminent domain abuse, cities and developers, have fought tooth and nail to maintain the status quo.

Optimist that I am, I side with Gall. Oh, sure, Yousefzadeh is correct that the reforms could be better and the reformers could work harder — but really, that’s just complaining that the world isn’t perfect.

I’m reminded of the concealed carry reform issue. The movement to require issuance of a concealed carry permit to anyone meeting certain requirements began in Florida in the early 1980s. From Day 1, the libertarian gun rights absolutists denounced it because "if you have to ask permission, it isn’t a right." True enough. In an ideal world, "Vermont carry" would prevail everywhere (in Vermont, and now also in Alaska, you don’t need a permit to carry concealed — you have the right to be armed for any lawful purpose). But to dismiss the carry reform movement is to overlook an important gain for proponents of liberty.

Before Florida enacted "shall issue" concealed carry in 1987, permits were routinely issued in only six states, and the issuing agencies generally had broad discretion (ensuring that only the well-connected got a permit). Opponents predicted Florida would become the "Gunshine State," with murder and mayhem and blood in the streets. They were, of course, proved wrong (permit holders are hundreds of times less likely to commit a violent crime than the general population).

The carry reform movement has swept the country — today, in 40 states, almost anyone who wants to carry a gun legally can do so. Crime rates are lower in liberalized-carry states, you seldom hear the hysterical arguments about "wild west shootouts" anymore, and carry reform opponents are on the defensive almost everywhere. A number of states have revisited their original carry reforms and further liberalized them (removing location restrictions, easing qualifications, extending reciprocity to residents of other states, etc.).

Yes, only two states are "perfect," and the rest still "oppress" us gun nuts in some sense. Yes, it’s taken 20 years, and there’s still much more to be done. But you’d have to be pretty churlish — and divorced from reality — to deny that a profound change for the better has taken place.

I suspect that eminent domain reform may follow the path of concealed carry reform — the pessimists/absolutists will bemoan the slow pace and imperfect nature of the changes, but over time, we’ll make significant progress.

Mind you, I’m glad the pessimists/absolutists are out there — they goad us all to work harder and they encourage those who are too willing to compromise to show a little more resolve. Just don’t let their negativity discourage you — there are plenty of reasons for optimism.

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