Rarely do legal decisions invite the turbulent response – – from both the left and the right, incidentally – – that Kelo has. In her colorful dissent Justice O’Connor said that the decision would permit the condemnation of a Motel 6 to be replaced by a Ritz Carlton. In other words, the Court was authorizing commercial developers to replace not-too-fancy urban areas (not necessarily blighted areas) with newer buildings without regard for the impact that might result to the members of the community who live and work in the condemned area. In the 1950’s and 60’s cities throughout the country invoked the doctrine to rip out vast areas thought to be undesirable under the sobriquet of “urban renewal”; the results in many (most?) cases were dreadful.
A manifestation of the rage against the decision can be seen in the numbers. By late 2006, from the time the decision was rendered, 31 states, including Pennsylvania, had adopted legislation on the topic, all of which imposed limitations to varying degrees upon the taking of land for private redevelopment. Rarely are legislatures able to act as promptly and decisively. In the November 2006 election voters in several states, including Arizona, Oregon, Idaho, South Carolina, Louisiana, Michigan, New Hampshire, and North Dakota modified their constitutions to some extent to limit such takings in direct response to Kelo. A similar proposal in California failed, however.
Finally, Congress has introduced legislation which would impose federal limits on the use of the eminent domain process to promote private development.
We have to wonder whether the Supreme Court would render the same decision today, given the nearly universal opposition which has sprung from the grass roots.
– Ken Butera