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Saturday, February 17, 2007

another reason for the public reaction to Kelo

After reading (OK, skimming) the Nadler/Diamond article on public reaction to Kelo, it occurred to me that one factor that might have increased public outrage was misleading press coverage of the decision.

For example, an article in the Economist (available at 2006 WLNR 20520851) wrote:

Since property rights are one of the foundations on which America's immense prosperity is built, it seems odd to undermine them. The framers of the constitution understood this well. True, the fifth amendment allows the government to take private property, but only for public use and so long as just compensation is paid. Public use has long been understood to mean what it says: a road, a public school or the like. Few would dispute that the state needs a tool (known as the power of eminent domain, or outside America as compulsory purchase) to prevent a lone homeowner from blocking an interstate highway.

But in June last year the Supreme Court expanded the definition of public use. In the case of Kelo v New London, it ruled, by five votes to four, that the state may seize private property on behalf of private developers, so long as this serves some broadly defined public purpose, such as increasing the flow of taxes into public coffers. In other words, any local government may evict any citizen to make way for someone richer. The four dissenting justices knew this might be a tad controversial. "The spectre of condemnation hangs over all property," fumed Sandra Day O'Connor. "Nothing is to prevent the state from replacing any Motel 6 with a Ritz-Carlton, any home with a shopping mall, or any farm with a factory."


The article's statements that the 
"Public use has long been understood to mean what it says: a road, a public school or the like" and that the Court "expanded the meaning of public use" are flat-out wrong .  In fact, for decades the Court has understood "public use" to mean "public purpose", no matter how much libertarians may dislike this view.  And the article's invocation of the founders in the first paragraph is meant to inflame the reader's emotions by pitting the Founding Fathers against the Framers against the current Court.

And this festering hunk of dishonesty occurred in the Economist (a fairly high-toned publication) several months after the decision (which means the author and editors actually had time to do research!). 

If this sort of misinformation is what came out in the Economist, I suspect that less elite sources of information were even more careless.

Michael Lewyn

http://lawprofessors.typepad.com/property/2007/02/another_reason_.html

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Comments

Well, I think it is a little rash to use a phrase like "festering hunk of dishonesty." In fact, it is likely not "dishonesty" that you even mean--you probably mean that it is simply imprecise. In other words, there is no evil intent to fool the public.

And I might even disagree that the Economist was imprecise, or at least meaningfully imprecise. Sure, the Kelo decision did not "expand" legislative power as we understand "expand" in the intellectual sense. Instead it did something more like "ratify" or "legitimize" the sort of uses or purposes that local governments were making of eminent domain. But good luck explaining to the masses the meaningful distinction there. That's the kind of too-clever-by-half lawyer-speak that will just wind up making the public even more bitter about the whole thing, which was your point in the first place.

Posted by: Tim Kowal | Feb 18, 2007 1:31:12 AM

A lot of disingenuous assertions about Kelo were published in the press. Many of them had roots in the hyperboly of Justice O'Connor's dissent. She argued that Kelo significantly expanded the power of eminent domain, which anyone who has read Berman or her own opinion in Midkiff knows is patently untrue. Her efforts to distinguish Kelo from Berman were among the weakest arguments I've seen in a Supreme Court opinion in a long time.

Dan

Posted by: Dan Cole | Feb 18, 2007 7:10:28 PM

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