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Kicking the Kelo Habit

The Castle Coalition has updates on state and federal legislation to counteract the effects of Kelo.

On the federal level, I hear the most talk about Sensenbrenner's bill:

No state or subdivision "shall use economic development as a reason for exercising its power of eminent domain if Federal funds would contribute in any way to - (1) the project for which the State's or political subdivision's power of eminent domain is exercised; or (2) the exercise and enforcement of the eminent domain power over the project."

But a friend of mine who works at Institute for Justice, the law firm that defended Susette Kelo, is telling everyone who will listen that state and local legislation is the way to go about fixing this problem. That's where most of the problems happen.

Here is the latest update on state eminent domain legislation. Bills have been introduced in 21 states. If you are as angry about Kelo as I am, this is a great step you can take. Castle Coalition has the pertinent contact information or each bill, so that you can show these legislators you're behind them. They need to know that the American people are serious about this issue.

That page will be updated as legislation moves and new legislation is proposed. If there's nothing proposed in your state, Castle Coalition is also helping with model legislation.

Background:

Mary Katharine blogs at the Townhall C-Log and doesn't cotton to Kelo.


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Comments (8)

Bully for you! These paths ... (Below threshold)
AnonymousDrivel:

Bully for you! These paths will receive a stampede of support.

I still can't believe our p... (Below threshold)
earth:

I still can't believe our property is now only sort-of our property. The good ole boy system appears to triumph. It sure creates a lot of busy-work for the politicians though.

Let's keep that happy slave mentality shining in our hearts, okay?

In Florida, Representative ... (Below threshold)
sabrina:

In Florida, Representative Rice has prepared a bill to amend our State Constitution to bar any property confiscation for private economic development.
I have sent an email to my State Rep expressing my support and encouraging him to do the same.

There is not much to be done at the Federal level any longer - although the bills banning federal funding of any such scheme do sound interesting. I see this mostly as a State issue now, contact your state reps - support them if they are already doing something and nag them if they are not.

If you would like to partic... (Below threshold)

If you would like to participate in the Open Source Amendment Project all feedback is welcome.

The proposed amendment is at revision 10 and will soon be part of petition to be sent to Congress.

The World Trade Center was ... (Below threshold)

The World Trade Center was the result of just such a state/local land grab! See Courtesy Sandwich Shop v. Port of New York Authority, 12 N.Y. 2d 379) (1963). Does that change anyone's opinion?

RE: slickdpdx's post (July ... (Below threshold)
AnonymousDrivel:

RE: slickdpdx's post (July 13, 2005 06:39 PM)

Nope.

If private property is to b... (Below threshold)
NOTR:

If private property is to be saved in this country, it will have to be done at the state level. But, as I write that, I recognize that recently the Supreme Court ruled that under the “Commerce Clause” of the US Constitution the states had no rights to their laws. Lawmakers in Georgia and Alabama have recently introduced legislation that would restrict the use of eminent domain seizures for “economic gain of the collective good, or private enterprise.” Some at least have recognized the danger and have taken actions to rectify it.

There is one way--and one w... (Below threshold)
John Ryskamp:

There is one way--and one way only--to save housing from eminent domain: raise the level of scrutiny for housing. I tried to explain that to the IJ last year, but they don't believe in any Constitutional right to housing, so they persisted in an argument which everyone knew would lose: they asked the Court to raise the level of scrutiny for eminent domain.

Below is the letter I sent to some Connecticut legislators who are considering legislation to restrict eminent domain;

Dear Senator Looney, and Representatives Amann and
Donovan:

I note that in connection with the moratorium on
eminent domain suggested Monday, and in connection
with proposed restrictions on eminent domain in
Connecticut, Senator Williams has said that the State
cannot "undo the Supreme Court case" and
Representative Lawlor said that the "legal case is
over." In a letter to the editor in The Day published
on July 11, and in this article

Ryskamp, John Henry, "Kelo v. New London: Deciding the
First Case Under the New Bill of Rights" .
http://ssrn.com/abstract=562521

I suggested that it is by no means difficult to undo
the case, either by petition for rehearing or
otherwise, and that the legal case is by no means
over.

As you investigate limiting eminent domain, you should
clearly understand what you are doing in
Constitutional terms. Justice Stevens, in his Kelo
opinion, noted that the problem with the Kelo
homeowners' case was that "economic development" was a
concept which lacked any factual reference, so it had
no legal content. If you say that eminent domain
cannot be used for "economic development," you are
saying absolutely nothing--you will NOT restrict
eminent domain by passing such a law. The Court was
unwilling to raise the level of scrutiny for eminent
domain because "economic development" contained no
facts to which a heightened level of scrutiny could
refer.

You have to restrict eminent domain as it pertains to
particular FACTS. If you are going to do that, what
you are doing is raising the level of scrutiny for
those facts. You need to understand that very well.
As I suggested in my letter and in the article, if it
is housing you are concerned about, then you are
interested in raising the level of scrutiny for
housing and so you are going to need a good
undestanding of

1. which facts already get heightened scrutiny;
2. why they get it; and
3. why housing is like those facts.

This involves understanding what the Founders meant
when they gave heightened scrutiny to facts such as
protected speech and freedom from an establishment of
religion. The Kelo case is based on the Fifth
Amendment. When James Madison presented it to
Congress, he said that it “prevents every assumption
of power in the legislative or executive.” When he
said “every,” he meant a fact of the individual. A
fact of the individual is a fact of human experience,
which does not change even when government seeks to
destroy it. It gets strict scrutiny because there is
a presumption that it is an immutable fact which
government cannot destroy. Understandably, then, when
government proposes to attempt to destroy it, the
Founders subject such a proposal to a severe test.

To begin with, you need to know what tests housing has
to pass in order to get heightened scrutiny. Is it a
fact of the individual? A fact of the individual is
one in which government:

1. seeks to eliminate the fact;
2. at best only succeeds orwould, if allowed, only
succeed, in eliminating incarnations of it;
3. in the process violates other rights;
4. brings to bear a disproportionate effort; and
5. does not consider alternatives which could achieve
the goal.

Historically, protected speech, freedom from an
establishment of religion, involuntary servitude, and
other highly protected facts, share these
characteristics. Does housing also share them?

1. New London seeks to destroy this housing;
2. New London itself has granted that these
homeowners will have to, and will, seek other housing;
3. association, speech and several other protected
facts are sought to be destroyed by this eminent
domain action;
4. the Kelo eminent-domain action is part of a
nationwide, well thought-out plan between developers
and politicians to use eminent domain to turn housing
over to private developers;and
5. the Kelo eminent domain action is not narrowly
tailored to achieve a
compelling government purpose.

It seems clear that housing is a fact of the
individual and that New London's plan would not pass
strict scrutiny for housing. When James Madison said
"every" he meant housing; for Constitutional purposes
it is identical to protected speech and freedom from
an establishment of religion. Under the Connecticut
Constitution, you could easily elevate scrutiny for
housing and thereby "undo the Supreme Court case."

As of now, anyone threatened by an eminent domain
action over housing can go into any Connecticut court
and request equitable relief based on the argument
given above. So it is not correct to say that the
"legal case is over." You should expect that, sooner
or later, someone is going to do just that. Such
relief would also, I think, be available in a Federal
District Court.

If you are going to begin deliberations about
restricting eminent domain over housing, you need to
be absolutely clear about the constitutional
ramifications of what you are doing. I think that
what you will be doing is concluding that housing is a
fact of the individual, and that actions regarding it
are subject to strict scrutiny.

I think that, whatever you decide, it is inevitable
that soon housing will achieve this legal recognition. If you want to write legislation which will protect housing from eminent domain, here is a suggested text:

Eminent domain shall not be exercised over housing unless it is narrowly tailored to achieve a compelling government interest.

Cordially yours,
John Ryskamp




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