The Kelo Calamity

The Supreme Court`s

Kelo 5-4 decision
leaves compensation as the only
remaining protection of private property. No property
owner is

any longer secure
in his possession of his property
if a private developer can convince an eminent domain
authority that he can put the property to higher use as
measured by projected tax revenues. Kelo`s impact is not
generally recognized. Even private property`s most
ardent defenders deny the impact of Kelo, which permits
the use of eminent domain for

private development projects.

Noted libertarian Lew Rockwell, for

that the distinction between public and
private use makes no difference to the owner whose
property is taken. He also argues that the Kelo decision
has already produced its own blowback in the form of
twenty-five states and hundreds of localities working to
enact laws against

the use of eminent domain
for private takings of

Libertarians are correct that the
basic problem is eminent domain, but they are incorrect
that the distinction between public and private use is
"ridiculous," and they are wrong in their supposition
that state and local laws can offset the impact of the
Kelo decision.

The state and local laws to
restrict the private use of eminent domain are merely
policy statements that the eminent domain authority of
the state or local government will not be used to take
private property for private developers. A city or
county`s policy statement cannot prevent a state or the
federal government from exercising eminent domain
authority in the local government`s jurisdiction, nor
could a state`s policy stop the exercise of eminent
domain by the federal government. Moreover, not all of
these efforts to restrict the use of eminent domain are
succeeding, and those that do can be changed by a
majority vote. They do not constitute a constitutional
protection of private property.

It is clear that the Kelo decision
has greatly diminished the protection of private
property. Prior to the decision, there were fewer
demands for takings and fewer opportunities for
government to use eminent domain powers. The distinction
between public and private use of eminent domain
restricted its use against private property. The Kelo
decision removed this restriction.

The Kelo decision created
fundamentally new inroads into private property. Prior
to Kelo, zoning authorities could restrict what could be
built in specific locations, but they had no power to
assemble or disassemble land parcels. Thus has Kelo
greatly enhanced the reach of government planning.

The Kelo decision also further
corrupts government by creating another avenue of
payoffs to public officials in exchange for their power
to alter property ownership in behalf of private

Libertarians are correct that the
source of the mischief comes from the government`s power
to take private property for public use. "Public use"
is an elastic concept. Originally, public use meant
roads and bridges. With time and technology the concept
expanded to electric power companies serving public

The takings of property were
limited to the amount needed to provide a community with
transportation or electric power. However, in the 1980s
a major new development was initiated by the
Metropolitan Atlanta Rapid Transit Authority (MARTA).
MARTA was one of the first to condemn more property than
it needed to serve "public purpose." The transit
authority reasoned that property surrounding a new
transportation station would rise in value because of
the increased ease of commuting from the site. The
authority decided that since its station was the reason
for the rise in property values, it should benefit by
condemning property for re-sale after the rise in value.
People with condemned property blocks from the new
stations sued and lost.

Kelo expands the definition of
public use. Condemnation for "public use" is now
justified by higher projected tax revenues made possible
by condemning low density neighborhoods, for example,
and transferring the land to developers who make
multi-millions of dollars by constructing high density
high rise on the assembled site.

The Kelo decision threatens all
private property, especially low density residential
neighborhoods that occupy desirable sites. All coastal
and waterfront communities, for example, are endangered
by the Kelo ruling.

Money is a powerful force. The Kelo
decision has made it more powerful.   

Roberts, [
him] a former Associate Editor of the

Wall Street Journal and a
former Contributing Editor of
National Review
was Assistant Secretary of the Treasury during the
Reagan administration. He  is
the author of

The Supply-Side Revolution

and, with Lawrence M. Stratton, of

The Tyranny of Good Intentions : How Prosecutors and
Bureaucrats Are Trampling the Constitution in the Name
of Justice

for Peter
Magazine interview with Roberts about the recent
epidemic of prosecutorial misconduct.