A thoughtful pro-Kelo comment

Prof. Robert Ellickson opines here:

I happen to strongly oppose, on policy grounds, virtually all economic-development initiatives of the New London stripe.  They tend to be boondoggles that waste taxpayer money, coerce the politically weak, and corrupt the political process.  But unlike the IJ, I do not favor strong national constitutional constraints in policy arenas where state policies would not have significant interstate consequences.  On issues such as the use of eminent domain for economic development (as well as issues such as abortion, same-sex marriage, and euthanasia), isn't it better to let states develop independent policies?  I'd prefer that the main battlegrounds on eminent domain issues be city halls, state capitals, and state supreme courts, not the federal courts.  On that important structural question, I agree in this instance with Justice Stevens, not Justice O'Connor.

Well this guy is definitely a legal expert but I still wonder why the Supreme Court cannot lay out some broad language which at least starts to raise the bar on the definition -- and this is the heart of the lagal issue -- the definition of "public use." Or is public use like pornography?

Btw, one of the policy issues which is not mentioned widely is that there are -- and no doubt someone will correct me -- thousand and thousand of bodies, school boards and port districts and water districts and sewer districts and library districts etc etc -- all sorts of special-purpose little districts here and there -- which  have power of eminent domain.

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Lots more very informed and interesting comment alongside Prof. Ellickson's, btw.

Comments

[Tom Andersen]

Thanks for the links to the many views on the eminent domain decision. Being on Long Island Sound, New London is in my blogging domain but I've avoided posting anything about it mainly because, like Billy Martin in the old Miller Lite commercials, I feel very strongly both ways.

New London is an interesting old port city (it was once second only to New Bedford as a whaling port) that has been hurt by strip development on its outskirts and bad redevelopment in its core. It needs all the help it can get. Whether the city fathers are capable of succeeding, with or without eminent domain, is an open question.

The bloggers at CJR Daily, in the meantime, have posted this reaction to the decision and its coverage: http://www.cjrdaily.org/archives/001630.asp

[JRoth]

Well, let me be the first to correct you. Or at least add data to your speculation. In PA, at least, only certain classes of municipalities and specially-constituted authorities have access to eminent domain (so, for instance, a small country town couldn't, but the County Redevelopment Authority could). I'd be pretty stunned if, anywhere in the country, a school board could, unilaterally, take property.

I might add that your suggestion that such a thing would be the norm is a perfect example of the "hysteria" I've been decrying.

I'll say it again: eminent domain is a powerful, potentially devastating act. For this very reason, it is used extraordinarily rarely (it is used as leverage rather more often). I guess I feel about the anti-Kelo hysteria the same way I feel about no-nukes activism: the thing you oppose restrains itself.

[David Sucher]

I'll check on that, JR. But it's my understanding -- and easy to find out one way or another -- that in Washington State, eminent domain is an almost universal power of most levels of government. As to school boards specifically, I would think that they would be one group about which I will be surprised that they do NOT have eminent domain. For one thing they are elected and have significant budgets and have direct operating responsibility. But as i say, it should be a fairly clear question to answer and I have an email in to try to find out an answer.

[JRoth]

Well I'll certainly be curious to learn; if WA schools do hold unilateral ED power, then I apologize. But: Obviously, school boards are the least likely entity imaginable to abuse Kelo. So why bring them up?

[David Sucher]

Uh..you brought up schoollboards, JR.

[Mary Campbell Gallagher]

Robert Ellickson may be right about all of the other matters he says are questions solely for local government. Eminent domain, however, unlike abortion or same-sex marriage, seemed like enough of a threat to the drafters of the Bill of Rights that they limited the federal government's exercise, in the fifth amendment. They thought that national constitutional constraints were appropriate.