Private Property Panic

Justice John Paul Stevens, who voted with the Supreme Court majority in Kelo, later said he did so reluctantly, and suggested that state legislatures change their laws. Justice Sandra Day O’Connor, in a furious dissent, wrote that the majority opinion demolished the Takings Clause of the Fifth Amendment (which states “ . . . nor shall private property be taken for public use, without just compensation”) and threatened the very concept of private property by effectively removing the words “for public use” from the clause. The court’s decision meant that “the specter of condemnation hangs over all property,” she wrote. “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 punditry hit the fan. “In practice, a ‘public purpose’ is anything that land-grabbing cities and the private developers they’re in bed with want,” grumbled Weekly Standard writer Matt Labash. “The court ruled, five to four, that yuppification is a valid public purpose,” sneered Michael Kinsley, opinion editor for the Los Angeles Times. “Who wouldn’t like a few more Starbuckses in town?”

The day after Kelo was decided, columnist George Will weighed in with this: “The question answered yesterday was: Can government profit by seizing the property of people of modest means and giving it to wealthy people who can pay more taxes than can be extracted from the original owners? The court answered yes.”

Abuse heaped on the Kelo decision did not come only from the media. Protesters launched an effort to get a New Hampshire town to condemn the family farmhouse of Supreme Court Justice David Souter, who voted with the majority, to make way for construction on Souter’s land of a proposed hostelry to be called the Lost Liberty Hotel.

When the Minnesota legislature opened its 2006 session on the first of March, Representative Jeff Johnson (R-Plymouth) had an eminent-domain bill ready to go and a Senate cosponsor lined up in Senator Tom Bakk (DFL-Cook). Backed by such groups as the Minnesota Auto Dealers Association and the Virginia-based Institute for Justice, a libertarian public-interest law firm, the bill began its passage through the committee process. The reform measure was meant to limit the government’s power to use eminent domain in the interest of private developments. It passed by large margins in both houses and was signed into law by Governor Pawlenty in May.