June 23, 2006

A Sad Anniversary

Today marks the one-year anniversary of one of the worst Supreme Court decisions of recent decades, Kelo v. New London. In Kelo, the Court continued its long tradition of reading out of the Constitution words it finds inconvenient, such as the "equal" in "equal protection," "privileges or immunities" in the Fourteenth Amendment, and both "commerce" and "among the several states" in the Commerce Clause, to give just a few examples. By a 5-4 margin, the Kelo Court effectively read "for public use" out of the Fifth Amendment's Takings Clause when it ruled that governments can take your property for private commercial development based on nothing more than a prediction of economic benefits.

To mark this unfortunate anniversary, the Institute for Justice, which litigated Kelo, is out with a series of reports which, among other things, document both the increased use of condemnation for private development since Kelo and the legislative response to the decision. For example, in the year since Kelo, there have been nearly six thousand properties nationwide that have been taken with or threatened by eminent domain for private development, a roughly threefold increase over the annual rate for the previous five years. In other words, the dire predictions made by Justices O’Connor and Thomas, in dissent, have come true.

Fortunately, unlike some of the Supreme Court's other infamous decisions, Kelo did not shut off democratic channels for expression of the public will. As a result, 25 states have reacted to Kelo by enacting legislation that provides various degrees of protection against eminent domain abuse. Let's hope the feds follow suit by enacting the Private Property Rights Protection Act, which has already been overwhelmingly approved by the House. The Act cuts off economic development funds to state and local agencies that use eminent domain for private development.

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