With that phrase, author Carla T. Main, in Bulldozed: "Kelo," Eminent Domain, and the American Lust for Land, accurately and succinctly sums up the devolution of the Supreme Court's view of the role of judicial review in eminent domain from Berman, to Midkiff, to Kelo.
Bulldozed is accessible to both lawyers and non-lawyers, and is no dull scholarly summation of the current state of Public Use Clause law. Rather, it places the issues in an understandable context by framing the legal details with the story of the Gore family of Freeport, Texas, and their straight-out-of-Forrest Gump shrimp processing business. The taking of the Gore's property and business for Freeport's "economic development" resulted in the case Western Seafood Co. v. United States, No. 04-41196 (5th Cir. Oct. 11, 2006) (a case I blogged about here). Main provides more details and background than the court's dry recitation of the facts ever could, and in between recounting the Gore family's story, provides the reader with an understanding of how we ended up with a case like Kelo, a decision that seemed to baffle a majority of the public.
Main begins at the birth of the Fifth Amendment and James Madison's concern that private property rights would not be respected by the newly formed United States, and tells the stories behind many of the seminal cases on eminent domain:
- West River Bridge Co. v. Dix, 47 U.S. 507 (1848), Daniel Webster's case in which the Court held that the Contracts Clause was no impediment to a state condemning an exclusive bridge franchise.
- Berman v. Parker, 348 U.S. 26 (1954), the case in which the U.S. Supreme Court first equated the condemnation power with the police power, and held, in sweeping language by Justice Douglas, that "public use" under the Fifth Amendment includes takings for
- Poletown Neighborhood Council v. City of Detroit, 304 N.W.2d 455 (Mich. 1981), overruled, County of Wayne v. Hathcock, 684 N.W.2d 765 (Mich. 2004), the case which opened the door to economic development takings, where an entire neighborhood was cleared to make way for a General Motors plant, based only on Detroit's hope that what was good for GM was good for Detroit.
The only case really missing from the lineup is Hawaii Housing Auth. v. Midkiff, 467 U.S. 229 (1984), the opinion authored by Justice O'Connor that set up her dramatic turnabout in her dissenting opinion in Kelo. Midkiff is a fascinating story and could be the subject of another book, so on the whole, it's a minor omission from Bulldozed.
Main also details how beginning in 2001, the courts began to take public use objections seriously, especially in the context of economic development takings, where one person's private property is transferred to another because the new owner promises to make more intense use of it. This awakening by the courts culminates in the Supreme Court litigation in Kelo v. City of New London, 545 U.S. 469 (2005).
Of course, given the title of the book, an entire chapter is devoted to the arguments in Kelo, the case which brought eminent domain squarely to the American public's consciousness. The Kelo backlash is the subject of another entire chapter. These sections are among the more enjoyable and accessible in the book. They detail the high drama of legal cases that make their way to the Supreme Court, and highlight the depth of emotion and passion aroused when people's homes, businesses, and neighborhoods are threatened.
Anyone who may wonder why property owners fight the taking of their property and businesses, despite the often overwhelming array of government power leveled at them need to read Bulldozed. Bulldozed is available from Amazon.