Was the Kelo Case Novel?

         Right after Kelo v. City of New London came down, holding that the power of eminent domain could be constitutionally used for “economic redevelopment” (i.e. the taking and transfer of unoffending private property from its rightful owners to would-be redevelopers for the construction of private, profit-making enterprises), the immediate reaction of redevelopment groupies was to assert that this judicial thunderbolt was just a plain old, nothing-to-it, routine holding — a mere application of preexisting precedent. For a brief review of that propaganda campaign and its deficiencies, see Gideon Kanner, The Public Use Clause: Constitutional Mandate or “Hortatory Fluff”? 33 Pepperdine L. Rev. 335, 343-349 (2006). Now, along comes Professor John J. Costonis, a noted police power hawk and a supporter of expanded use of eminent domain, and – surprise! — weights in on the side of Kelo’s novelty: 

          “[I]n Kelo, the majority and concurring opinions like the litigants themselves untethered the [eminent domain] power’s deployment from blight remediation or any other substantive planning concern, asking instead whether or not government’s assessment of its fiscal needs alone warrants denying a private property owner the autonomy over property that, in its current use is otherwise unproblematic.” John J. Costonis, New Orleans, Katrina and Kelo: American Cities in the Post-Kelo Era, 83 Tulane L. Rev. 395, 398 (2008).

         Well said, John – we couldn’t have said it better ourselves. So far, so good. Unfortunately, Professor Costonis also uses his article to criticize state legislation (notably in Florida and Louisiana) that bans the use of eminent domain for “economic redevelopment,” arguing that this bodes ill for post-Katrina redevelopment in New Orleans. 

         Which brings to mind the fact that the expansive power of eminent domain that Professor Costonis so admires is a legislative power, which is to say a democratic power that follows the wishes of the people, not the diktats of elites who, in disregard of the vital interests of the lower middle class that is usually displaced by urban redevelopment, would impose their notions of urban planning on an unwilling populace, and in the process feather the already cushy nests of the redevelopers. So the legislature of Connecticut likes an expansive use of eminent domain for candidly private uses masquerading as “public purpose,” whereas the legislatures of Florida and Louisiana don’t. The U.S. Supreme Court says that as far as the Constitution is concerned, this is just hunky-dory. Mind you, we don’t like that rule because it waters down constitutional protection of citizens and deprives the Public Use Clause of the Fifth Amendment of any independent meaning — in the post-Kelo world that meaning can vary from state to state, and produce precisely the sort of situation that Professor Costonis is so unhappy about.

          So what? As the Romans used to say, Sic friature crustum dulce – that’s how the cookie crumbles. Back in the bad old days when we went to court to complain about the unfairness of eminent domain law, we were met with condemnors’ riposte that the wisdom of legislation is no business of the courts, and that our clients’ travails were merely “the price of progress,“ so that if we didn’t like it, we should take our sad story to the legislature. So it looks like the folks in Florida and Louisiana (and a few other states) did just that. And their legislatures responded. So what’s the problem, John?

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