Kelo v. New London Term Paper

Pages: 10 (3670 words)  ·  Bibliography Sources: 8  ·  File: .docx  ·  Level: College Senior  ·  Topic: Business - Law

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The first were statutes initiating a "prohibition for economic development," which deliberately barred any such powers as granted in Kelo. Next were statutes issuing a "limitation to public use" for eminent domain, enshrining a much narrower interpretation of the words in the Fifth Amendment. And finally there were those which restricted it to "blight" and offered a clear definition of the term "to emphasize public health, safety and welfare considerations" (Morandi 2007). Morandi notes that from the first category, laws specifically repudiating Kelo were passed by 23 states. 12 states passed statutes issuing the "limitation to public use," and 12 passed statutes which limited it to cases of clearly-defined "blight." In some cases there was overlap when a state legislature passed two of the above, but in total 43 separate states passed legislation intended to react to, and limit, the scope of the Kelo decision It cannot be reasonably claimed that there was no organized political reaction against the decision, then, as so many different state legislatures moved to block the extension of their own powers of eminent domain. But was this flurry of legislation actually effective? In 2007, Bert Gall of the Institute for Justice, the legal firm which argued Susette Kelo's case, offered an "optimist's view" of "post-Kelo America" in 2007, suggesting that those who took Kelo's side would have reason to feel confident in the legislative response:Buy full Download Microsoft Word File paper
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The passage of 38 eminent domain reform bills -- again, most of which are strong -- has taken place in the span of less than two years, and more reforms may be on the way. Even more remarkably, these reforms have been passed despite the fact that powerful interest groups -- developers, planners, municipal officials -- have fought desperately to preserve their power. Indeed, given their tremendous influence, as well as the fact that ordinary home and business owners don't have lobbyists or special access, the question that critics of these reforms should be asking is: "How on earth did the Kelo backlash meet with such success?" For some broader historical perspective, they might then ask what other national reform movement has achieved so much in such a short period of time. It's also important to remember that the Kelo backlash has manifested itself in powerful ways outside the legislative arena. Eminent domain abuse remains a wildly unpopular policy choice for local governments and developers in the wake of Kelo. Moreover, since the decision, the state supreme courts of Ohio and Oklahoma have rejected Kelo under their respective state constitutions. And the state supreme courts of Maryland, Rhode Island, and South Dakota have cast doubt on its viability. These victories reinforce legislative gains, and can help pave the way for further reforms (as may be the case in Ohio). (Gall 2007).

But the difficulty nonetheless remained that the breadth of interpretation of eminent domain that was licensed by Kelo might still remain accessible nonetheless. In 2009, Jacob Sullum observed that the definition of "blight" still remained sufficiently broad that, with the encouragement of Kelo, New York state had begun to permit the sort of activity that was most feared by critics of the extension of eminent domain in the first place. Sullum notes that the existing legal definition of "blight" in New York dates from 1975 and specifies "that the areas eligible for such renewal are not limited to 'slums' as that term was formerly applied, and that, among other things, economic underdevelopment and stagnation are also threats to the public sufficient to make their removal cognizable as a public purpose" -- he then observes that

Although New York courts could interpret the state constitution as imposing more restrictions on eminent domain than the U.S. Constitution does, this generous blight standard is hard to distinguish from the open-ended development rationale endorsed in Kelo, under which no one's property is secure if politicians can imagine a better use for it. & #8230; Last week a lower appeals court reached the same conclusion in a case involving Columbia University's expansion into the Manhattanville section of Harlem. As in the Atlantic Yards case, the Empire State Development Corporation, the authority empowered to use eminent domain, went looking for "characteristics that demonstrate blight conditions" so it could reach a predetermined conclusion that condemnation was justified. The result, said the court, was "a preposterous summary of building and sidewalk defects" that could be found in "virtually every neighborhood in the five boroughs." It concluded that the blight designation was "mere sophistry." Refreshing as this rebuke is, it is likely to be reversed by the Court of Appeals… "It may be that the bar has now been set too low," the court that set the bar conceded, "that what will now pass as 'blight,' as that expression has come to be understood and used by political appointees to public corporations relying upon studies paid for by developers, should not be permitted to constitute a predicate for the invasion of property rights and the razing of homes and businesses."

It is worth noting that New York State was one of the seven states which passed no legislative response to Kelo at all, so to a certain degree it can only be claimed that the latitudinarian interpretation of Kelo's powers was already present and only encouraged by the decision. But the notion that "mere sophistry" can convert any property into a target for eminent domain is confirmed by the actions in New York, which Sullum thinks are now legally viable under Kelo.

From a legal standpoint, though, Kelo has remained undoubtedly controversial as the years continue. Upon the retirement of Justice John Paul Stevens in 2010, the Economist's pseudonymous columnist "Lexington," who covers the American political scene for the London-based publication, offered a survey of Stevens' legacy which defined it in terms of Kelo, calling it his "worst decision."

Amazingly, Justice Stevens -- and a slim majority of the court…rejecting "any literal requirement that condemned property be put into use for the ...public"…said it was enough that the seizure should serve some vaguely defined "public purpose" -- such as those new taxes…. Most Americans are repelled by the idea that the state might take your house and give it to Donald Trump. (This is not rhetoric: New Jersey once tried, unsuccessfully, to seize someone's home because The Donald needed somewhere to park limousines outside one of his casinos.) Since the Kelo ruling, no fewer than 34 states have passed laws or constitutional amendments aimed at curbing the abuse of eminent domain. At the mid-term elections, voters in ten states approved measures curbing politicians' power to seize private property, all by wide margins. Only two ballot initiatives failed, in California and Idaho, and that because they clearly went too far. Re-worded, they could easily pass. Public revulsion against such seizures is visceral and nearly uniform: polls find between 85% and 95% of Americans are opposed to them. Political affiliation makes no difference. Republicans hate to see property rights violated and individuals bullied by the state. Democrats hate to see the state's coercive power hired out to big corporations, and worry, correctly, that the chief victims of eminent domain abuse will be the working class and ethnic minorities. The backlash may end up strengthening property rights.... Just as the courts keep tabs on Congress and the executive, striking down unconstitutional laws and constantly reminding the president that he is subject to the rest, so too can Congress, the states and ultimately the people curb the excesses of the Supreme Court. Kelo v New London was a terrible decision. But most states have now neutered it, and more will doubtless follow.

Of course this is written from the standpoint of the British legal system, which depends largely upon an unwritten constitution, so it emphasizes the aspect of Kelo least likely to happen in a political system which is not American -- namely, the specific interpretation of a clause within the U.S. Constitution which suddenly triggers broad shifts in policy. From the standpoint of the Economist, then, the most peculiar factor is the broad unpopularity of a matter of Constitutional interpretation, on both sides of the political spectrum. Moreover, the abuse of the powers -- such as the amazing case in New Jersey involving Donald Trump -- is so broadly unpopular that it occasions a fundamental reinterpretation of property rights in order to strengthen them. To a certain degree, this outsider's view on the American Constitutional process raises the issue that "85 to 95% of Americans" who oppose a specific policy will not rewrite the actual text of the Fifth Amendment.

This is, to a certain degree, the basic thrust of the critique issued by Jacobs and Bassett in 2011, for the sixth anniversary of oral arguments in the Kelo case. Jacobs and Bassett set out to do a lengthy research survey of the initial legislative reactions to Kelo, to determine if they were (in their words) "all sound, no fury" (3). Yet their conclusions shift, because in… [END OF PREVIEW] . . . READ MORE

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