Post-Kelo Reforms Aren’t Strong Enough

Can our system protect property rights if community "needs" reign supreme?

A year ago, the U.S. Supreme Court’s Kelo decision on eminent domain created two diametrically opposite reactions. On one hand, many local government officials rejoiced at the affirmation of what they feel is a necessary tool to reshape their communities. On the other hand, people everywhere grew so outraged by the decision that it could be “one of the best things that ever happened to the national property rights movement,” as Reason’s Len Gilroy wrote.

This divide has reinforced the fact that the Kelo decision threw the issue of eminent domain back to the states. The fight over where, when and how eminent domain can be used is now mostly a local fight, spilling from state houses down to inner city and suburban neighborhoods and even to rural areas.

Most state legislatures responded to Kelo by considering some form of eminent domain reform legislation. But what looked like a firestorm at first, soon fizzled out. As Harvard Professor David Barron described in the Boston Globe, most states did not actually pass legislation. And what did pass often had loopholes big enough to shove a Home Depot through.

It turns out that city and county governments and redevelopment authorities are pretty effective lobbyists. They managed to retain significant authority to use eminent domain and define limits in very subjective terms. As Barron wrote:

Americans have long been of two minds when it comes to property rights. On the one hand, there is the old notion that ownership is inviolable, a home is a castle, and the government has no business messing with private property. On the other hand, there is the equally old notion that no one is an island and that the value in any individual’s property is deeply interconnected with the health of the community as a whole.

In a world where legislators and much of the public have gone squishy on what constitutes a right, passing a law that just plain says, “look, you can’t take someone’s land except on rare occasion for public infrastructure projects like roads and dams” appears just too extreme.

There is a conflict of visions. As one city manager told me, “What about the community’s right to improve itself and create new jobs?” There is a reason the Constitution doesn’t mention “community rights”-they don’t exist. Only individuals have rights. Communities have desires.

Local officials’ grand redevelopment schemes emanate from a vision in which community needs trump individual ones – on everything from public safety to how a privately-owned building should be used.

That is why the loopholes Barron described are so pernicious. It may seem reasonable to allow eminent domain to deal with “blight,” because we all picture scenes of the worst of inner city Detroit-burnt out shells of buildings and empty lots piled high with trash-when we think of blight. But in fact, blight is in the eye of the beholder. Everything from an empty desert to a row of successful businesses to a neighborhood of modest but clean homes has been declared “blight” by people who have an alternative vision of how their community should look.

This is all the more reason to acknowledge those legislatures and local governments that did pass rules limiting eminent domain abuse in the aftermath of Kelo.

But with a resurgent property rights movement out there, the issue isn’t going away. I expect there will be more high profile suits like Kelo and more local interest in cases of outrageous eminent domain abuse. Kelo brought the issue out into the light of day. Local officials can no longer exercise eminent domain on the q-t without anyone noticing.

And Kelo has brought us back to a fundamental question: Is a property right in fact a right that the system will protect-even when it’s most inconvenient to do so?

Adrian Moore is vice president of research at Reason Foundation. An archive of his work is here and Reason’s eminent domain research and commentary is here.