It’s one of the most hated Supreme Court decisions in decades, and it happened just three years ago. I’m talking about Kelo vs. New London, where a bare majority of the justices decided that it was OK for local governments looking to increase tax revenue to take land from their citizens and give it to a developer.
Now, the Fifth Amendment of the Constitution permits the use of eminent domain for “public use.” But over the decades, the courts had expanded the meaning of “public use” from takings for roads, schools and hospitals—things anyone can use or benefit from—to takings for “public benefit.” That meant urban renewal efforts and other plans for economic development, the argument being that eventually the public would benefit from the increased tax revenue.
Kelo took that a step further and said that governments can take land from a private citizen if the government thinks the land would be more beneficial to the public in the hands of another private entity. The decision outraged even Justice Sandra Day O’Connor, who wrote in her stinging dissent:
“To reason, as the Court does, that the incidental public benefits resulting from the subsequent ordinary use of private property render economic development takings ‘for public use’ is to wash out any distinction between private and public use of property—and thereby effectively to erase the words ‘for public use’ from the Takings Clause of the Fifth Amendment.”
Appropriately, the aftermath of Kelo in New London itself shows the importance of the Constitutional limit on eminent domain and the absurdity of trying to determine “public benefit” based on predictions of future revenue. Three years after winning the right to take the property of Susette Kelo and her neighbors, there hasn’t been any public benefit in any form from the land that city officials took. In fact, the city doesn’t even know what to do with the land now that officials’ handpicked developer couldn’t muster the financing necessary to build anything.
Before Kelo citizens across the country came under attack by their own elected local officials who, like those in New London, had visions of more tax revenue to spend. Many times, these situations went unnoticed as citizens quietly submitted to government demands because they couldn’t afford the hassle or legal fees associated with defending their own property. Kelo, however, turned the spotlight on these government takings.
Citizens across the country were, not surprisingly, outraged. That outrage turned into a lightning-quick reform effort because of a single opening left by Justice Stevens’s concurring decision. Stevens wrote, “Nothing in our opinion precludes any State from placing further restrictions on its exercise of the takings power.”
Since Kelo, 42 states have seized the opportunity and reformed their laws to protect property owners. Although some states like California—one of the worst abusers of eminent domain—only passed minimal reforms, others like Florida—formerly one of the worst abusers—have effectively banned the use of eminent domain for private development.
Nevada is one of those states that have taken real steps towards reform, but reform isn’t permanent yet. Because the legislature wasn’t in session in 2006, Nevada citizens campaigned for and passed Ballot Question 2, which made “public use” really mean “public use” in Nevada’s constitution. However, it’s not yet set in the state constitution, since Nevada law requires that citizens vote on the initiative again this year.
Last year, the Nevada legislature passed Assembly Bill 102, which, although weaker than the constitutional amendment, provided immediate protection to Nevada property owners. Later in the year, the legislature passed Joint Resolution 3, another proposed constitutional amendment replicating the weaker language of Assembly Bill 102. Nevadans will have to vote on the legislature’s constitutional amendment in November as well as in 2010.
Government doesn’t usually move quickly, but in the case of the strengthened powers of eminent domain, the tidal wave of citizen outcry to Kelo, unlike almost any other issue, forced politicians to move quickly.
Posted on June 29th, 2008 by Chuck Muth
Filed under: National, Nevada
Isn’t it actually the privately funded ballot initiative, and not the outcry of the citizenry, that caused the Nevada legislature to act quickly? By acting in the manner that they have, rather than just allowing the people to pass the ballot initiative a second time, they are acting like spoiled children. They don’t want their authority questioned by their constituents. Pretty telling.
An interesting side note: We are all being urged to support John McCain this year because the next president will get multiple appointments to the Supreme Court and we need a Republican in there or else.
In Kelo, John Paul Stevens, Anthony Kennedy and David Souter are all Republican appointees, I think. And in the awful Heller decision, Scalia says just about any restrictions on the individual right of gun ownership are okay. Yeah, Scalia is another Republcan appointee.
There seems to be no such thing as a truly originalist supreme court judge. And no matter who is appointing them, it’s a crapshoot and we’re the ones getting the crap.
Brian Kominsky