In “Positioning Politics: Kelo, Eminent Domain, and the Press,” an article in “Land and Power: The Impact of Eminent Domain in Urban Communities,” published by the Policy Research Institute for the Region (Princeton), the author asserts that the reporting on the Supreme Court’s decision in Kelo v. City of New London, 545 U.S. 469 (2005), “was more interpretation than fact andrelied heavily on inflammatory hyperbole and provocation.” Further,
Overwhelmingly and unsurprisingly, the editorials voiced dissent withthe Court’s ruling, which mirrored public opinion data, but as with thereporting, they relied heavily upon a series of myths about Kelo andeminent domain. These myths became powerful framing devices, which havemade eminent domain a touchstone social-policy battle with a life ofits own.
The abstract of the article is on SSRN here (the full article is also available for download at SSRN), and the entire “Positioning Politics” monograph can be downloaded here. [Disclosure 1: I published an op-ed about Kelo, available here, so maybe I am part of the hype.]
The article suggests that the “Kelo backlash” was more the result of savvy media manipulation by libertarian and property rights organizations than genuine outrage over a radical shift in constitutional law, because Kelo represented little more than an application of long-standing precedents and established principles of eminent domain law:
A few headlines aimed to report the straight facts of the ruling without interpretation. They noted that the court had upheld the city’s use of eminent domain in a split decision and put the issue back in states’ hands. More common were headlines designed to capture the reader’s attention by relying on varying degrees of hyperbole and provocation, using words like “seize,” “wrest,” and “land grab” that denied the legitimacy of well-established statutory procedures and administrative processes associated with the use of eminent domain.
. . .
Using the word “seize” is inflammatory. Although government’s exercise of eminent domain powers constitutes an involuntary sale (the British term for eminent domain is most apt: “compulsory purchase”), the word seize implies that the property was confiscated, taken forcibly or suddenly without due process or compensation.
See p. 57-58. “Seize,” however, seems a pretty apt description of what happens when the government takes property, even when it does offer compensation. See this post, which addresses some of the myths about how eminent domain works in practice.
Kelo touched a nerve and was viewed as entering new territory because until then, most homeowners probably did not realize their property was subject to “compulsory purchase” if someone else more politically powerful could convince city fathers and mothers that they might make “better” use of the property than the current owners were. While the Kelo majority did not rule out finding in some future case that a particular taking supported only by claims of economic development would fail because of private influences and benefits, neither did it establish a prophylactic rule exhibiting any distrust of government actions that might encroach on fundamental rights as the Court applies when dealing with other Fifth Amendment rights (most notably the right against self-incrimination), and other constitutional rights. Instead, the majority booted responsibility for protecting a federal constitutional right to state courts and legislatures. The right to own and make reasonable use of property is not supposed to be a second-class constitutional right, see Lynch v. Household Finance Corp., 405 U.S. 538, 552 (1972) (“[T]he dichotomy between personal liberties and property rights is a false one.”), but it sure seemed be one to a lot of people after Kelo.
Are homes at risk by economic development takings? Surely. Was the Kelo backlash unwarranted because homes have always been at risk? Perhaps. If so, however, it cannot be dismissed as mere hype because Kelo removed the blinders about how eminent domain really is practiced, and how the power can be wielded. (For more on whether using “compulsory purchase” would soften the blow, see our review of the Australian film The Castle, a comedy about a Melbourne family’s fight to keep their home.)
Despite the above critiques, Positioning Politics is well worth reading since it catalogues the media treatment of the case, as are the other articles in the monograph.
Professor Gideon Kanner adds his thoughts on another article about whether Kelo was something new, or just more of the same, “Was the Kelo Case Novel?” —
Right after Kelo v. City of New London came down, holding that the power of eminent domain could be constitutionally used for “economic redevelopment” (i.e. the taking and transfer of unoffending private property from its rightful owners to would-be redevelopers for the construction of private, profit-making enterprises), the immediate reaction of redevelopment groupies was to assert that this judicial thunderbolt was just a plain old, nothing-to-it, routine holding – a mere application of preexisting precedent. For a brief review of that propaganda campaign and its deficiencies, see Gideon Kanner, The Public Use Clause: Constitutional Mandate or “Hortatory Fluff”? 33 Pepperdine L. Rev. 335, 343-349 (2006).
[Disclosure 2: we filed an amicus brief supporting Susette Keloin the Supreme Court on behalf of a Hawaii family who weresubject to their own homegrown version of eminent domain abuse — in2007, a Hawaii trial court struck down as improper an attempted takingof their property for lack of public purpose, and in December 2008, the Hawaii Supreme Court vacated a second condemnation attemptbecause the trial court should have considered evidence of whether thegovernment’s asserted public purpose for that taking was pretextual.]