Friday, January 26, 2007

Eminent domain ... up to the states? ...

   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.

Americanflag_1    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.

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Good point. I've always wondered why this Fifth Amendment eminent domain federalism doesn't apply with equal force to the First Amendment. Next time someone files suit in US District Court alleging a local ordinance infringes on their free speech rights, any illusions what would happen if the judge dismissed, telling the plaintiff to go seek protection for her federal rights in state court or the state legislature under her state constitution? But property owners are used to such dualities (see Williamson County/San Remo).

And state and local governments have very little incentive to enact any restrictions on their eminent domain power, unless the people have the ability to initiate change themselves and hold their elected officials' feet to the fire.

Posted by: inversecondemnation | Jan 26, 2007 9:03:33 PM