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Kelo case

08/20/05 12:00AM By John McClaughry
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(HOST) Commentator John McClaughry thinks that new state laws may be needed after the recent Supreme Court ruling on the con- cept of eminent domain.


(MCCLAUGHRY) Few if any U. S. Supreme Court cases since Bush v. Gore have caused as much public discussion as the Court's ruling in Kelo versus City of New London. In this case, the New London, Connecticut city council thought it would be nice to seize 90 acres of private property belonging to 115 small landown- ers, tear down their homes and turn the land over to a private dev- elopment company to build fancy shopping malls, office suites and upscale retail stores. The city would benefit from the jobs created and also rake in a ton of new property tax dollars.

By a five to four liberal majority, the Court decided that the power of eminent domain can be exercised not only for public use, as the Constitution explicitly says, but for any purpose some govern- mental body believes to be desirable.

Justice O'Connor, dissenting, observed that "Under the banner of economic development, all private property is now vulnerable to being taken and transferred to another private owner, so long as it might be upgraded - that is - given to an owner who will use it in a way that the legislature deems more beneficial to the public. Nothing is to prevent the state from replacing any Motel 6 with a Ritz-Carlton, any home with a shopping mall, or any farm with a factory."

The Kelo holding is a victory for tax-hungry governments, planning departments and ambitious developers. It's a defeat for ordinary citizens who, until now, believed that the Bill of Rights protected their right to property ownership against governments eager to dis- possess them in favor of other private citizens.

The case thus poses a dilemma for liberals. Liberals love gov- ernment action to make sure that all development is done according to The Great Plan. On the other hand, liberals see themselves as principled advocates for justice for the poor, the little guy, disadvantaged minorities, Joe and Florence Sixpack - precisely the people who will be forced out of their property as governments, hand in hand with "the rich and the big corpora- tions", take advantage of the green light newly given them by the Supreme Court.

Now a U. S. Supreme Court majority has legalized takings for revenue enhancing purposes. The Vermont Supreme Court has shown itself willing to uphold almost any regulatory taking of land values. Given these unpleasant facts, property owning Vermonters should start thinking about adopting legislation to protect their rights. Their 18th century constitutions are on their side, but their supreme courts, in thrall to the "diverse and always evolving needs of society", are clearly not.

This is John McClaughry. Thanks for listening.

John McClaughry is president of the Ethan Allan Institute, a Vermont policy, research and education organization. He spoke from our studio in Norwich.
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