Condemn the Power of Eminent Domain

Last years’ United States Supreme Court decision in Kelo v. New London, which refused to prohibit local governments from using eminent domain to promote private economic development, has spawned a massive popular and legislative response at the state level. A comprehensive list of legislation pending, passed, or dead is available from the Institute for Justice’s Castle Coalition website, as well as a report with a discussion of common “weasel words” in bills that may appear to reform the law but will in fact have little legal effect in constraining the power of eminent domain. Because the merit of much of this legislation is suspect, it is worth carefully reviewing legislation proposed in those states where multiple bills or popular referendums are pending, prior to next month’s elections. The passage of nearly any such laws is of some value in registering popular support for property rights, but enactment of better variants of the proposed legislation is likely to lead to a steady stream of lawsuits which will keep the subject of property rights in the headlines for many years to come, which is to my mind a worthwhile result in itself. The more coverage the subject gets, the more time and opportunity are presented to intellectuals to speak to the issue of property rights in popular venues.

In my own state, California, at least nine separate bills were introduced in the state legislature and two popular initiatives were proposed. Unfortunately, only one initiative has made it to the ballot for next month’s election: Proposition 90. Although it is among the weakest of the bills introduced, it nonetheless has the virtue of causing city planners to run scared that they may see some restraints put on their power to take private property for economic development. For those in the area of Orange County, California, the Federalist Society and Pacific Legal Foundation are sponsoring a legal conference this Friday at Chapman University featuring a debate over the Proposition and a symposium on the history of eminent domain.


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