Kelo And Accountability
In the midst of economic contraction unseen since the Great Depression, it is unsurprising that the economic developments plans of the City of New London now lay in ruins. Opponents of a government that is accountable to voters are rejoicing in this opportunity to again criticize the Supreme Court's decision in Kelo. Here is the WSJ Editorial Page:
The Supreme Court's 2005 decision in Kelo v. City of New London stands as one of the worst in recent years, handing local governments carte blanche to seize private property in the name of economic development. Now, four years after that decision gave Susette Kelo's land to private developers for a project including a hotel and offices intended to enhance Pfizer Inc.'s nearby corporate facility, the pharmaceutical giant has announced it will close its research and development headquarters in New London, Connecticut.
The aftermath of Kelo is the latest example of the futility of using eminent domain as corporate welfare. [. . .] That's especially galling because the five Supreme Court Justices cited the development plan as a major factor in rationalizing their Kelo decision. Justice Anthony Kennedy called the plan "comprehensive," while Justice John Paul Stevens insisted that "The city has carefully formulated a development plan that it believes will provide appreciable benefits to the community, including, but not limited to, new jobs and increased tax revenue." So much for that.
(Emphasis supplied.) The demand for judicial activism by "unelected judges" to overturn the governing decisions of local ELECTED officials is, of course, ironic and hypocritical. But more importantly, it is bad Constitutional law. Let's revisit what the Kelo decision held:
[W]hen this Court began applying the Fifth Amendment to the States at the close of the 19th century, it embraced the broader and more natural interpretation of public use as “public purpose.” See, e.g., Fallbrook Irrigation Dist. v. Bradley, 164 U.S. 112, 158—164 (1896). Thus, in a case upholding a mining company’s use of an aerial bucket line to transport ore over property it did not own, Justice Holmes’ opinion for the Court stressed “the inadequacy of use by the general public as a universal test.” Strickley v. Highland Boy Gold Mining Co., 200 U.S. 527, 531 (1906).9 We have repeatedly and consistently rejected that narrow test ever since.10
The disposition of this case therefore turns on the question whether the City’s development plan serves a “public purpose.” Without exception, our cases have defined that concept broadly, reflecting our longstanding policy of deference to legislative judgments in this field.
(Emphasis supplied.) Quoting the 1954 Berman case, the Kelo Court repeated:
“We do not sit to determine whether a particular housing project is or is not desirable. The concept of the public welfare is broad and inclusive… . The values it represents are spiritual as well as physical, aesthetic as well as monetary..” Id., at 33.
(Emphasis supplied.) Deference to the elected local governing body is decried now by "conservatives." And yet, as the Kelo Court stated, it is settled Constitutional law:
Viewed as a whole, our jurisprudence has recognized that the needs of society have varied between different parts of the Nation, just as they have evolved over time in response to changed circumstances. Our earliest cases in particular embodied a strong theme of federalism, emphasizing the “great respect” that we owe to state legislatures and state courts in discerning local public needs. [Cite ommitted.] For more than a century, our public use jurisprudence has wisely eschewed rigid formulas and intrusive scrutiny in favor of affording legislatures broad latitude in determining what public needs justify the use of the takings power.
(Emphasis supplied.) This is as it should be. Indeed, even the Wall Street Journal is compelled to recognize that the Kelo decision has led to accountability for elected officials:
Kelo's silver lining has been that it transformed eminent domain from an arcane government power into a major concern of voters who suddenly wonder if their own homes are at risk. According to the Institute for Justice, which represented Susette Kelo, 43 states have since passed laws that place limits and safeguards on eminent domain, giving property owners greater security in their homes. State courts have also held local development projects to a higher standard than what prevailed against the condemned neighborhood in New London.
(Emphasis supplied.) This is how a representative democracy is designed to function. Instead of now recognizing that of course the Kelo Court got it right, "conservatives" will continue to potshot the decision. Cuz that's what they do.
Speaking for me only
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