Reality Check

December 2005

Reality Check

Educating Legislators and the Public About Eminent Domain Abuse

By Bert Gall

In the aftermath of the U.S. Supreme Court’s now-infamous decision in Kelo v. City of New London, the floodgates to the abuse of eminent domain for private gain are now wide open. As Justice O’Connor wrote in her dissenting opinion, “The specter of condemnation hangs over all property. Nothing is to prevent the state from replacing any Motel 6 with a Ritz-Carlton, any home with a shopping mall, and any farm with a factory.”

A silver lining in the Court’s opinion was its statement that states are free to enact legislation that provides home and business owners greater protection than the Court chose to provide. As every opinion poll taken after the Kelo decision demonstrates, the vast majority of Americans are appalled by the Court’s sanctioning of the abuse of eminent domain for privately driven land-grabs, and they want their legislators to put an end to that abuse. Currently, legislators in more than 35 states have introduced bills that address the problem. And the Castle Coalition, as part of IJ’s Hands Off My Home campaign, is helping state legislators craft laws that afford real protection to home and business owners who want nothing more than to keep what is rightfully theirs.

Of course, the beneficiaries of eminent domain abuse—tax-hungry municipalities and land-hungry developers—want to maintain business as usual and thus oppose real reform. They advance such myths as “Kelo didn’t really change the law” and “Eminent domain abuse isn’t a real threat.” Worse yet, they advance so-called “reforms” that are purely cosmetic and do nothing to stop the use of eminent domain for private commercial development.

For that reason, IJ Senior Attorney Dana Berliner authored a white paper (located at http://www.castlecoalition.org/kelo-whitepaper) for legislators and the public about Kelo that sets the record straight about the case and explodes the myths advanced by apologists for eminent domain abuse. The paper explains not only how the Supreme Court changed the law by equating “public use” with “private use,” but also how the decision has paved the way for further abuse of eminent domain. The paper also debunks myths such as, “Economic development can’t happen without eminent domain” and “Eminent domain is always a ‘last resort.’” (Of course, economic development happens all the time all over the country without eminent domain, and the threat of eminent domain is always on the table when a city wants to take land from A and give it to B.)

Just as importantly, the white paper gives legislators specific guidance about how to rein in the abuse of eminent domain for private gain. Along with IJ’s and the Castle Coalition’s model eminent domain legislation, it gives legislators the tools they need to create meaningful reforms that will protect all Americans from eminent domain abuse. The legislative battle against eminent domain abuse will not be easy; the beneficiaries of that abuse will fight frantically to keep their power. That’s why IJ and the Castle Coalition will continue to counter the myths of the apologists for eminent domain abuse with something much more powerful: the truth.

Bert Gall is an IJ staff attorney.