Friday, January 26, 2007
The U.S. Supreme Court denied last week a petition to hear another eminent-domain-for-redevelopment case, this one arising from a taking in Port Chester, N.Y. One response to property-rights frustration is that, as the Court said in Kelo in 2005, eminent domain is largely a state law issue, and states are free to limit localities from exercising their power for redevelopment, or to impose any restriction they like under state law. In fact, most states did respond to Kelo with some sort of statutory limitation on eminent domain for economic reasons. In a sense, then, we can be satisfied that strong public opinion has led to democratically enacted changes in the law.
On the other hand, simply passing the constitutional buck to state governments may not be a satisfactory solution in the long run. Once the public furor has died down, "government" - meaning both local and state authorities - has the incentive to give itself broad authority. The "public use" requirement for eminent domain is in effect an individual human right against the power of government, and only the courts can fully vindicate such a right.