Propaganda — How It’s Done

Evidently based on an Associated Press story (click here) reporting House of Representatives’ passage of legislation limiting the sweep of SCOTUS’ controversial Kelo decision of 2005, the blogosphere is full of news stories about it, that begin like this:

“The House sought Tuesday to undercut a 2005  Supreme Court ruling that gives state and local governments eminent domain  authority to seize private property for economic development projects.’

Undercut” the Supreme Court ruling? A court ruling that “gives” state and local authorities authority to seize private property for economic development? No, folks. That’s a mischaracterization of the Kelo holding that misleads the lay reader.

What SCOTUS held was that it is the legislature, not the courts, that has the primary say-so as to what constitutes “public use” within the meaning of the Fifth Amendment’s Taking Clause, so that (a) what the legislature decides in that regard is “well-nigh conclusive,” and (b) legislatures are perfectly free to limit the scope of a state’s eminent domain power and to change the right-to-take law any way they see fit, as long as they don’t violate the “public use” clause of the Fifth Amendment. So in this case the Congress did not “undercut” the court. On the contrary, it exercised its primary prerogative of defining what is “public use.” That is a decision that the courts are required to follow, not the other way around. For a good example, see Eden Memorial Park Ass’n. v. Superior Court, 189 Cal. App. 2d 421 (1961), where the courts denied the California Department of Public Works the right to take by eminent domain a right of way through a cemetery. Why? Because the state legislature had passed a law denying condemnors the right to take cemetery land for rights of way, and the courts were bound by it.

We have no way of knowing whether the AP story is the result of its author’s unfamiliarity with the law of eminent domain, or whether it is motivated by more sinister thoughts. But either way, it is black letter law that when it comes to deciding what sort of property may (or may not) be taken by eminent domain, doing so is a legislative function. So when the legislature exercides that function it isn’t “undercutting” anything; it is governing.

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