How The Post Kelo Eminent Domain Revolution Established The Right To Housing

Homeowners and politicians have simply ignored the Supreme Court's ruling in Kelo v. New London. Informal eminent domain moratoria - established when the Supreme Court agreed to hear the case - have simply continued post-Kelo. It has become evident that government is not willing to send in the police in order to remove people from their housing, even though they have the legal right to do so. This means enforcement of the housing provision of the New Bill of Rights (see article on SSRN discussing this proposal): No individual shall be involuntarily deprived of housing. This language is strict scrutiny for housing. The informal moratoria are strict scrutiny for housing in the eminent domain context. At the same time, it is not clear what other circumstances would permit removal of the people benefiting from these moratoria. For example, as time goes on, the moratoria tend to enforce other provisions of the New Bill of Rights. For example, the Bill also says: No individual shall be involuntarily deprived of liberty. Since, once the condemnation orders were in effect, the persons housed were no longer owners of their property and were subject to rent which none have paid, they are clearly trespassing. This extraordinary state of affairs implies elevated scrutiny for liberty, in the context of trespass where the facts show housing.

Eminent domain entered the awareness of many Americans with the recent U.S. Supreme Court case Kelo v. New London. Across the political spectrum, people were outraged when the Court majority said that a local government may transfer property from one private party to another under the ''public use'' clause of the Constitution, for the sake of ''economic development. Carla T. Main - who in the past, as a lawyer, has represented the condemning authorities in eminent domain cases - examines how property rights in America have come to be so weak, tracing the history of eminent domain from the Revolutionary War to the Kelo case. But the heart of Bulldozed is a story of how eminent domain has affected an American family and the small-town community where they have lived and worked for decades. In the 1940s, Pappy and Isabel Gore established a shrimp processing plant in Freeport, Texas. Three generations of Gores built Western Seafood into a thriving business that stood up to fierce competition and market flux. But Freeport was struggling, and city officials decided that a private yacht marina on the Old Brazos River might save it. They would use eminent domain to take the Gores' waterfront property and hand it over to the developer, an heir of a legendary Texas oil family, in a risky sweetheart deal. For three years, the Gores resisted the taking with every ounce of strength they had. Around them, the fabric of the community unraveled as friends and neighbors took sides. Bulldozed vividly recounts the Gores' fight with city hall, and at the same time ponders larger questions of what property rights mean today and who among us is entitled to hold on to the American Dream.

In 2005, the Supreme Court ruled that the city of New London, Connecticut, could condemn fifteen residential properties in order to transfer them to a new private owner. Although the Fifth Amendment only permits the taking of private property for “public use,” the Court ruled that the transfer of condemned land to private parties for “economic development” is permitted by the Constitution—even if the government cannot prove that the expected development will ever actually happen. The Court’s decision in Kelo v. City of New London empowered the grasping hand of the state at the expense of the invisible hand of the market. In this detailed study of one of the most controversial Supreme Court cases in modern times, Ilya Somin argues that Kelo was a grave error. Economic development and “blight” condemnations are unconstitutional under both originalist and most “living constitution” theories of legal interpretation. They also victimize the poor and the politically weak for the benefit of powerful interest groups and often destroy more economic value than they create. Kelo itself exemplifies these patterns. The residents targeted for condemnation lacked the influence needed to combat the formidable government and corporate interests arrayed against them. Moreover, the city’s poorly conceived development plan ultimately failed: the condemned land lies empty to this day, occupied only by feral cats. The Supreme Court’s unpopular ruling triggered an unprecedented political reaction, with forty-five states passing new laws intended to limit the use of eminent domain. But many of the new laws impose few or no genuine constraints on takings. The Kelo backlash led to significant progress, but not nearly as much as it may have seemed. Despite its outcome, the closely divided 5-4 ruling shattered what many believed to be a consensus that virtually any condemnation qualifies as a public use under the Fifth Amendment. It also showed that there is widespread public opposition to eminent domain abuse. With controversy over takings sure to continue, The Grasping Hand offers the first book-length analysis of Kelo by a legal scholar, alongside a broader history of the dispute over public use and eminent domain and an evaluation of options for reform.

Twist the Constitution and you can un-do decades of work sustaining the right to housing. What is the "public interest"? A legal expert analyzes recent legislative proposals and presents a new argument for housing rights.

Wesley Horton and Brendon Levesque are right that public outrage over Kelo has overshadowed the real facts of the New London plan, and that the decision only affirmed well-established precedent. But while the facts were on New London's side, those facts were harder to translate to the public sympathy than the story of the white, female plaintiffs effectively publicized by the Institute for Justice in the case. Kelo is also not Dred Scott in even more ways than Horton and Levesque state. Unlike Scott v. Sandford, Kelo preserved the rights of individuals to challenge taking of their homes and receive compensation for the same. For lead plaintiff Susette Kelo, this right to compensation resulted in a pay-out of about four times the value of her little pink house. And while Scott v. Sandford helped trigger a constitutional revolution, Kelo remains good law, and the state legal response to it is more show than substance. Although I agree with the authors on the big picture, I suggest caution on their proposal for curbing eminent domain abuse. The scrutiny for pretext they propose was established well before Kelo, but some of the factors they suggest would discourage public-private partnerships that may more effectively achieve public goals. While judges must police governments for bias and favoritism, having inexpert judges make decisions that are better left to planning experts and the public process will not achieve this end.

Evicted! is a practical and critical look at the vulnerability of Americans' property rights to eminent domain abuse since the Supreme Court's 2005 Kelo decision. The 2005 Supreme Court decision Kelo v. City of New London, which upheld the taking of an individual's home by local government for the sake of private development, unleashed a firestorm of controversy. The backlash against eminent domain cuts across partisan, ideological, and racial lines, with 4 out of 5 Americans opposing Kelo. Critics of Kelo claim that it represents a radical departure in the law, putting every homeowner in jeopardy of dispossession by government at the service of corporate interests. But are property rights and eminent domain truly in mortal conflict? Written for general readers, property owners, and local government officials seeking to understand the implications of Kelo for eminent domain and property law, Evicted! cuts through all the hype and hysteria surrounding Kelo and argues that the alleged wave of eminent domain abuse is mostly a myth. Evicted! describes what property rights are, why the law protects them, and how eminent domain really works. Schultz shows that Kelo did not make new law but only broadened Supreme Court precedents, and he refutes claims that Kelo has opened the way to widespread eminent domain abuse. Nevertheless, the author identifies certain legislative changes that are needed at the local, state, and national levels to better protect individual property owners when corporate thugs and corrupt government officials occasionally gang up against them.

The continuing controversy regarding Kelo v. City of New London demonstrates that there are a number of problems and tensions associated with eminent domain that entice scholars. This article addresses one such problem: the singular link between eminent domain and affordable housing. Though rarely discussed, this link reveals a long history of cities' use of their eminent domain power to advance development projects that rarely include affordable housing. Moreover, when cities condemn property through eminent domain to further new development projects, they often do so in a manner that undermines many of the goals of building more affordable housing. As the need for affordable housing increases, cities' taking of private property for quot;public purposesquot; has helped decrease the number of affordable housing units instead of helping keep up with the demand. Moreover, the two competing views in the ongoing debate regarding the proper definition of a constitutional quot;public usequot; both marginalize affordable housing. This interplay between eminent domain and affordable housing raises concerns from a social justice perspective and an economic perspective. This article analyzes the sources and issues that have led to the problems stemming from the link between eminent domain and affordable housing and highlights some potential solutions.

The contributors in this volume address the fundamental relationship between the state and its citizens, and among the people themselves. Discussion centers on a recent decision by the United States Supreme Court in the case of Kelo v. City of New London. This case involved the use of eminent domain power to acquire private property for purposes of transferring it by the State to another private party that would make "better" economic use of the land. This type of state action has been identified as an "economic development taking". In the Kelo case, the Court held that the action was legal within provisions of the US Constitution but the opinion was contentious among some of the Justices and has been met with significant negative outcry from the public. The Kelo case and the public debate arising in its aftermath give cause to assess the legal landscape related to the ability of government to fairly balance the tension between private property and the public interest. The tension and the need to successfully strike a balance are not unique to any one country or any one political system. From the United States to the United Kingdom, to the People's Republic of China, property and its legal regulation are of prime importance to matters of economic development and civic institution building. The Kelo decision, therefore, explores a rich set of legal principles with broad applicability.

Annotation. Twist the Constitution and you can un-do decades of work sustaining the right to housing. What is the "public interest"? A legal expert analyzes recent legislative proposals and presents a new argument for housing rights.

"In 2005, the Supreme Court of the United States made a monumental decision in Kelo v. New London (2005). The Court affirmed that interpreting economic development as being under the Public Use Clause within the Takings Clause of the Fifth Amendment was Constitutional. The Court upheld the notion that private property could be transferred to another private entity by the government. The backlash from this ruling was a tide of state legislature concerning eminent domain. However, this new state legislature seems to have opened up the door to use the Fifth Amendment to address this blight. There is no standard by which a community, neighborhood, or home can be labeled as "blighted"; and, thus, no standard by which to justify government intervention. In fact, the effect of these laws has resulted in the discrimination of the economically poor. Furthermore, with the existence of a relationship between lower income neighborhoods and minority communities, the net effect of these new domain standards is discrimination to the least of these. This article seeks to explore ways by which the Fifth Amendment, as defined by Kelo v. New London can be used as a tool to combat urban blight. Through the exploration of base briefs, legal articles, and literature addressing property and eminent domain, I find that government's present involvement in addressing urban blight has turned unethical. I argue that there is no way up from the rut of vague definitions and loose policies that states have found themselves in. Eminent domain is a powerful tool, but it cannot remain in the box used to combat urban blight without reform. A new definition of blight must be drafted for this to happen. This definition, paired with the Fifth Amendment, will allow urban blight to be addressed in a legal, nondiscriminatory, ethical, and effective way"--Abstract