Heartland Experts React to Eminent Domain Ruling

Heartland Experts React to Eminent Domain Ruling

Because of the significance of the Supreme Court's ruling in Kelo v. New London, several representatives of The Heartland Institute issued statements presenting their views. Excerpts follow. Their full statements are available at http://www.heartland.org.


Paul Fisher, director of real estate law at McGuire Woods LLC in Chicago, member of the board of directors of The Heartland Institute:

"The U.S. Supreme Court has given a major victory to urban planners, large property owners, and government in the Kelo decision announced June 23. The major losers are those who treasure private property rights and the respect for those rights as set forth in the U.S. Constitution, and those with the least political power to protect themselves. ...

"In Kelo, the Court has stretched the term [public use] to encompass whatever has economic development benefits in the view of local government as long as it is 'carefully considered.'...

"The 'carefully considered' test can probably be passed by creating the right record of hearings and a nice pamphlet or book with color photos. There is no need to say that the affected properties are blighted or dangerous. Virtually all of the economic development tools now being used will work and new tools will certainly be developed. Current state statutes which require a finding of 'blight' as a condition for condemnation may well be amended to do away with that inconvenient requirement."



James M. Taylor, managing editor, Environment & Climate News:

"It is distressing that the Court has given government the go-ahead to take property from one private citizen and give it directly to another private citizen solely for the purpose of improving the tax base. The 'public use' restriction on the government's previously limited eminent domain power has been eradicated in one fell swoop. ...

"Government can claim almost any taking and transfer of property from one private citizen to another is predicted to generate increased tax revenue. ...

"The Court's decision illustrates the vital role state legislatures and local representative government must play in protecting our rights. Utah Gov. Jon Huntsman, for example, signed a law on March 17 preventing redevelopment agencies from transferring private property from one private entity to another. Similarly, the Nevada legislature on May 30 passed a bill restricting ... redevelopment agencies from taking non-blighted private property.

"In light of the eroding federal protections against misuse of the eminent domain power, it is important for state legislatures to follow the lead of Utah and Nevada."



Maureen Martin, Heartland Institute Senior Fellow for Legal Affairs, managing editor of Lawsuit Abuse Fortnightly:

"In 1954, in Berman v. Parker, the Court upheld a District of Columbia plan to condemn blighted property, acquire it, and transfer the land to other private parties for redevelopment, including the construction of low-income housing. ...

"Thirty years later, the Court found constitutional a Hawaii state statute that forced landowners to sell their property to their tenants. The harm to be remedied in Hawaii Housing Authority v. Midkiff was that nearly half of the land in the state was owned by state and local government, and another 47 percent of the land was in the hands of only 72 landowners. The Court held that addressing 'the social and economic evils of a land oligopoly' qualified as a valid public use. Further, the Court held a state taking would be constitutional so long as it was 'rationally related to a conceivable public purpose.'

"The difference in Kelo is that the property to be taken by the city is not blighted, but rather is an area of well-maintained single-family homes near the waterfront of New London, Connecticut. ...

"The danger, as pointed out by Justice O'Connor in her dissenting opinion, is that there is virtually no limit to the takings power established by the majority."