Empathy For Kelo

 

With the recent Supreme Court decisions in the news this week, let's take a moment to remember the 8th anniversary of Kelo v City of New London, a 2005 Supreme Court ruling.

A New London paper just ran a story about one of the families on the losing side of the case.  Losing in this context meant being forced to sell your family home and see it leveled.

The Kelo litigation started with the desire of the city of New London, Connecticut to attract a large, global corporation to the city as part of a "redevelopment" project which would pay more taxes to the city than the homeowners in the long-standing residential neighborhood which would be destroyed to make way for the commercial development.

Six of the families refused to sell their long-time homes and sued the City claiming it was misusing its eminent domain power which under the Fifth Amendment of the US Constitution was limiting to takings for "a public purpose" (the lead plaintiff was Susette Kelo).  The plaintiffs claimed that taking their homes in order to give their land to large corporations merely because the City could obtain more taxes was not "a public purpose".

In 2003, the Supreme Court of Connecticut ruled against the plaintiffs on a 4-3 vote.  The case was appealed to the US Supreme Court, where it attracted a number of amicus briefs, including from the NAACP and the Southern Christian Leadership Conference, supporting the plaintiffs, briefs prompted by memories of the liberal use of eminent domain to uproot and destroy long-standing black American neighborhoods in the 1950s and 60s under the guise of "redevelopment".  Despite this, the Court ruled in favor of the City in a 5-4 vote, ruling that taking the land of the homeowners to give to big business was a "public purpose", with Justices Ginsburg, Breyer, Souter and Kennedy joining in the opinion written by Justice Stevens.

In the minority, convinced that the City's actions were unconstitutional, were Justices Thomas, Scalia, Rehnquist joining in the opinion by Justice O'Conner who wrote:

"Any property may now be taken for the benefit of another private party, but the fallout from this decision will not be random. The beneficiaries are likely to be those citizens with disproportionate influence and power in the political process, including large corporations and development firms."

THC is confident that it was these four justices that President Obama had in mind when he spoke about the need for Supreme Court justices to have empathy.

The line up of the justices should not be a surprise.  There is a thread on takings cases, particularly on the liberal side, which gives broad leeway to government.  Informally, there is a clear hierarchy - local planning is good, state planning is better and federal planning best of all.  The justices retain a touching, if naive, faith in the magic of planning.  This approach resonates all the more with them since the Court's sleight of hand in the 1930s when it created an artificial separation of "individual" from "economic" liberties and decided that it would pay attention to rights in the first category and ignore rights in the second.  In this view, the property right of the homeowner has nothing to do with an individual right.  [UPDATE: Of course, self-interest can play a role in one's views - see, for instance, the New York Times' effusive endorsement of the Kelo majority and its own use of eminent domain to seize the property of less-powerful business owners.]

And what happened to the properties in question?  Well, after the homes were destroyed, nothing.  The development never happened and the land remains vacant eight years later.  On the other hand, all that open land served as a great storage area for debris from the recent hurricanes!