The Magazine

The Kelo Backlash

What the Supreme Court touched off with its eminent domain decision.

Aug 21, 2006, Vol. 11, No. 46 • By JONATHAN V. LAST
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But New York gets the prize for cravenness. The village of North Hills tried to use eminent domain to seize a ritzy private golf club, Deepdale, and turn it into a public--but expensive--golf course for North Hills residents. Deepdale member Edward D. Herlihy wrote an op-ed about the scheme that was published in the Wall Street Journal, and the state legislature quickly passed legislation designed to protect the club. In other words, New York passed eminent domain "reform"--but only for members of an elite golf club.

As states have grappled with eminent domain, a strange politics has emerged. There is no real split between Democrats and Republicans. In some states, it is Democrats who oppose reform. In Connecticut, for example, Democrats in the legislature obstructed attempts to change the law. But in Oklahoma it was Republicans who prevented reform from passing.

As Scott Bullock, an attorney at the Institute for Justice (and the lawyer who argued Kelo before the Supreme Court), notes: "Republicans who are limited government types are typically good on eminent domain, but those who are tied too deeply to big business are bad. With Democrats, those who are keyed into the rights of the oppressed and the effects of power structures are typically good, but Democrats who are into good government and civil planning are bad on the issue."

Another interesting aspect of the debate has been the lopsidedness of the votes in the legislatures. Where eminent domain reform has passed, it has passed overwhelmingly. This is probably because, as poll after poll demonstrates, there is no grassroots support for the expansive view of eminent domain. There are no citizen or corporate groups lined up to defend public seizures of private property. The only people arguing for them are developers and local politicians. Their strategy is to prevent reform from coming to a vote or, failing that, to dilute legislation in committee.

(A political aside: It may be worth noting that two Democratic presidential hopefuls--Vilsack and New Mexico governor Bill Richardson--vetoed eminent domain reform. Those vetoes may come back to haunt them.)

A lot has changed since the Kelo decision came down last year. But some things, sadly, have not changed. The town of New London still insists on taking Susette Kelo's land from her--though on June 30 the town agreed to allow Kelo to keep her little pink cottage and move it to another location in town. Ironically, it's a solution Kelo herself proposed years ago, when the government first came calling.

The irony is that, had the town taken her up on it then, there would have been no legal battle or Supreme Court ruling, and developers across America would still be quietly pushing homeowners around with the help of local governments and eminent domain. Those days are coming to an end. But not soon enough.

Jonathan V. Last is online editor of THE WEEKLY STANDARD.