Reason Magazine - Topics > Eminent Domain

Ohio Eminent Domain Case Ends

gillespie@reason.com (Nick Gillespie) — Thu, 04 Sep 2008 09:40:00 EDT

Here's the close to a precedent-setting eminent domain case from Ohio:

The owner of the lone house standing in the middle of the 11-acre site that was the focus of a landmark eminent-domain case has sold his property to Rookwood Partners for $1.25 million.
Joe Horney's sale of his vacant rental house ends a long legal battle that drew national attention, and clears the way for development of the site, located on prime real estate at Edwards and Edmondson roads.
Horney, who bought the house for $63,900 in 1991, was the last of the 71 property owners on the site to sell to Rookwood Partners. The developer spent more than $20 million for the other properties and tore down all the buildings, leaving only Horney's boarded-up home and detached garage....
The [Ohio] high court ruled that it was illegal for Norwood to use eminent domain for private economic development.
As a result, Ohio approved a law last year that places more restrictions on the use of eminent domain.
The court decision also influenced other court rulings and legislation throughout the nation....
The $1.25 million is almost twice what Rookwood Partners paid for the property of Sanae Ichikawa-Burton and Matthew Burton, the second-to-last holdouts to sell.

More here.

reason on the Norwood case. On eminent domain abuse more broadly.

Won't You Be My Neighbor?

info@reason.com (Damon W. Root) — Wed, 03 Sep 2008 16:56:00 EDT

For the past several years, Nicholas Sprayregen has stood his ground against the combined forces of Columbia University and the powerful quasi-public entity known as the Empire State Development Corporation. At issue is Spraygregen's refusal to sell four buildings (all part of his Tuck-It-Away Self-Storage business) to Columbia so the University can proceed with a 17-acre west Harlem expansion that president Lee Bolinger describes as necessary for Columbia to "continue to be one of the great Universities of the world." From the outset, Columbia has dangled the threat of eminent domain over the heads of Sprayregen and his fellow property holders, scaring all but two into cutting their losses and selling their land. But as Sprayregen told The New York Times:

This is about the powerful growing more powerful at the expense of those who have less. Columbia is not a public university; what they're doing by threatening to use eminent domain is as unethical from a business perspective as anything I've ever come across. Property rights abuse is running rampant, but what's unique in this instance is that eminent domain always seems to be used against the down-and-out, people who can't afford to fight back in a meaningful way. I can. But I think it's anti-American that I'm probably on the losing side.

Sadly, he's probably all too right about that last part. Back in July, the Empire State Development Corporation declared the entire 17-acre site to be "blighted," which is the invariable prelude to eminent domain proceedings. Today's New York Sun reports that Columbia is pushing hard for the property, declaring that this "vital" project requires city and state support. Sprayregen, whose lawyer is the famed civil libertarian Norman Siegel, promises to take the fight to the Supreme Court. Here's hoping this one turns out better than Kelo.

Communists for Corporate Welfare

jwalker@reason.com (Jesse Walker) — Tue, 02 Sep 2008 14:52:00 EDT

In India, militant farmers protest eminent domain:

Work at the Indian factory where the Nano, billed as the world's cheapest car, is to be made has been suspended indefinitely amid local opposition.

Tata Motors has decided to look for alternative manufacturing sites after violent protests by farmers in West Bengal where the plant is located.

Farmers want the return of 400 acres of land and their protests have prevented any work at the plant since Friday.

While the masses engaged in direct action, the party that purports to speak for the masses despaired:

The Communist-led coalition in the state described Tata's decision as a "major loss" and described the current protests as "irresponsible".

Elsewhere in Reason: Shikha Dalmia discussed another Indian state's "rampant abuse of its eminent domain powers" in June 2006.

China's Free Speech Sting

jsullum@reason.com (Jacob Sullum) — Fri, 22 Aug 2008 12:06:00 EDT

Remember those protest zones that Chinese officials promised to set up for people who wanted to criticize the government during the Olympics? It turns out they weren't really needed:

Officials say that they received 77 protest applications but that nearly all of them were dropped after the complaints were "properly addressed by relevant authorities or departments through consultations."...
At a news conference on Wednesday, Wang Wei, the vice president of Beijing's Olympic organizing committee, was asked about the lack of protests. He said it showed the system was working. "I'm glad to hear that over 70 protest issues have been solved through consultation, dialogue," he said. "This is a part of Chinese culture."

One way of solving protest issues is re-education through forced labor. Two frail old women were arrested for "disturbing public order" and peremptorily sentenced to a year in a labor camp after they applied for permission to protest the way they were screwed over when the government seized their homes for redevelopment. (They were never compensated and never given the new apartments they were promised.) Police told them they could avoid serving their sentences if they shut up and stayed out of sight. This, evidently, is a part of Chinese culture.

Some observers say the arrests of people seeking permission to protest may indicate intragovernment dissension. Others think "the authorities were using the possibility of legal demonstrations as a ploy to lure restive citizens into declaring their intention to protest, allowing the police to take action against them."

Monument to Aesthetic Imperialism

jsullum@reason.com (Jacob Sullum) — Mon, 11 Aug 2008 12:06:00 EDT

The Third Church of Christ, Scientist, at the intersection of 16th and I streets in Washington, D.C. (a few blocks north of the White House), is a hard building to like, as even its admirers admit. Designed by Araldo A. Cossutta, a former associate of I.M. Pei, the 37-year-old structure exemplifies brutalism, which Christy MacLear of the National Trust for Historic Preservation concedes is a "challenging style to defend largely because its foundation is grounded in philosophy, as opposed to aesthetics; people simply don't think it is good-looking." You can judge that for yourself. But among the people who don't much care for the church are its owners, who want to replace it with something friendlier. "This brutalist, unwelcoming, bunkerlike building is not a proper representation of our practice or our theology," says church spokesman J. Darrow Kirkpatrick.

Too bad, says Washington's Historic Preservation Review Board, which in December declared the building a landmark. Never mind the persistent mildew, the expense of heating the building and changing light bulbs in fixtures that can be reached only by scaffolding, the cavernous atmosphere of the 400-seat sanctuary, or the sheer ugliness of the exterior. The board has deemed the building historically significant, citing its "amazingly high integrity (in all respects: location, design, setting, materials, workmanship, feeling and association), down to the original carpeting and seat upholstery in the church auditorium." This sort of architectural diktat is in some respects worse than using eminent domain to transfer land from its owners to politically favored developers, since in this case there's no compensation, just or otherwise. Why collect donations from fans of brutalism, or even allocate taxpayers' money, to buy and preserve this "rare Modernist church" when you can force the current owners to maintain it as a monument to aesthetic imperialism?

Last week, with help from the Becket Fund for Religious Liberty, the church challenged the historic landmark designation in federal court, arguing that it violates the First Amendment and the Religious Land Use and Institutionalized Persons Act. Since the Supreme Court has said that "neutral laws of general applicability" do not violate the Constitution's guarantee of religious freedom even if they ban a religion's central rite, the First Amendment argument probably won't succeed. The statutory argument looks more promising: The law cited by the Christian Scientists says a land use regulation that imposes "a substantial burden" on religious freedom is permissible only if it's the "least restrictive means" of serving "a compelling governmental interest." Much hinges on whether preserving the church building counts as a compelling interest; the plaintiffs should hope the case is not heard by a brutalism booster.

A better approach would be to recognize the restrictions that accompany historic landmark designations as a kind of "taking" for "public use" that requires "just compensation" under the Fifth Amendment. If taxpayers were compelled to pay for the maintenance of modernist monstrosities, they might start to object, and this safeguard would protect property owners regardless of their religious beliefs. In 1978 the Supreme Court rejected the argument that the designation of New York City's Grand Central Terminal as a historic landmark qualified as a taking, but that was before a string of cases in the 1980s and '90s establishing that land use regulations, if severe enough, can amount to a taking. The Christian Scientists might not fare very well under those precedents, since they still have use of their church. Yet it's clear the government has taken something of considerable value from them, allegedly for the benefit of the general public. Even assuming that historic landmark laws are justified in principle, why should the church alone bear the burden of its building's forced preservation?

Brian Doherty noted the dispute over the church's future back in December.

Show Us the Blight

jsullum@reason.com (Jacob Sullum) — Thu, 07 Aug 2008 17:31:00 EDT

Today a New Jersey appeals court overturned a ruling that allowed the city of Long Branch to proceed with its plan to condemn a seaside neighborhood and replace it with luxury condominiums. The appeals court found that the city had failed to support its claim that the neighborhood was "blighted," as required by state law and the state constitution. Scott Bullock of the Institute for Justice, which represents many of the neighborhood's homeowners, says this looks like the end of the project:

The Court basically told the city that if that's all it has, it can't take these homes. It's too late for the city to manufacture more evidence, so the Court's ruling is a fatal blow to the city. We are confident the owners will prevail on remand.

The appeals court ruling was based on a 2007 decision (PDF) in which the New Jersey Supreme Court said a municipality cannot arbitrarily label property "blighted" simply because it has in mind what it considers a better use for the land. I noted the Long Beach case a couple of years ago, when I.J. first became involved. Click through to see examples of the allegedly blighted homes.

Swift SLAPP

jsullum@reason.com (Jacob Sullum) — Wed, 09 Jul 2008 17:35:00 EDT

Last May property rights activists in Clarksville, Tennessee, ran an ad in a local paper urging their neighbors to oppose a redevelopment project that involves the use of eminent domain. The ad, sponsored by the Clarksville Property Rights Coalition, noted that Mayor Johnny Piper, City Councilman Richard Swift, and Downtown District Partnership member Wayne Wilkinson "are all developers" and declared:

This redevelopment plan is about private development. Our city government is controlled by developers....This redevelopment plan is of the developers, by the developers, and for the developers.

Not only did the plan win the city council's approval, but now Swift and Wilkinson are suing the coalition for defamation, seeking $500,000 in damages. Bert Gall, the Institute for Justice attorney who is defending the activists, says:

Swift and Wilkinson are thin-skinned bullies trying to silence and intimidate their critics with frivolous litigation. All citizens have a First Amendment right to speak out against government abuse-without getting sued for their speech by the very people whose actions they are protesting.

Careful there, Bert. Swift and Wilkinson might sue you too.

Not for Sale

info@reason.com (Scott G. Bullock) — Mon, 23 Jun 2008 15:00:00 EDT

The little pink house that was the centerpiece of the U.S. Supreme Court's infamous Kelo v. New London decision is standing once again. The house, moved from the now destroyed Fort Trumbull neighborhood, will stand as a monument to the bravery of Susette Kelo and her neighbors, and to the thousands of others who have battled and are battling the abuse of eminent domain across the country. In contrast, the project for which the City of New London forced out its citizens is dead in the water.

Today marks the three-year anniversary of the Court's ruling, easily one of the most despised decisions in the Court's history. In Kelo, the Court, by a narrow 5-4 margin, ruled that New London could take homes and small businesses to give to a private developer in the name of "economic development." The case caused a nationwide backlash against eminent domain abuse, resulting in judicial decisions, citizen activism, initiatives, and legislation in favor of property owners.

Since Kelo, two state supreme courts have explicitly rejected the decision, while another three have questioned the validity of the decision under their respective state constitutions. As cases come before them, more state courts are likely to do the same.

Moreover, there has been massive public awareness brought to the issue of eminent domain abuse. Although there was growing concern about the issue and some awareness before Kelo, after the decision, just about every reasonably well-informed person in the country now knows about the issue—and a vast majority of them oppose eminent domain for private development.

This significant public opposition to eminent domain abuse has led to a complete change in the Zeitgeist on the issue. While public officials, planners, and developers in the past could keep the condemnations for private gain under the public's radar and thus usually get away with the seizure of homes and small businesses, that is no longer the case. Property law expert Dwight Merriam notes: "The reaction to Kelo has chilled the will of government to use eminent domain for private economic development."

Also, in a mere three-year period, 42 states have changed their eminent domain laws either through citizen initiative or legislation. About half of these provide strong protection against the abuse of eminent domain and virtually all of them represent an improvement over the truly terrible eminent domain laws that were on the books before Kelo.

Even more remarkably, eminent domain reforms have been passed despite the fact that powerful interest groups—developers, municipal officials, and planners—have fought desperately to preserve their power. Certainly, much work remains to be done. For example, Connecticut, home of the Kelo decision, has passed no substantive reforms even though it has one of the most sweeping laws in the country authorizing eminent domain for private commercial development. Likewise, its neighbor, New York, has rampant eminent domain abuse and a legislature that refuses to act. For anyone who cares about property rights, what has happened post-Kelo, however, is a classic example of losing the battle but winning the war.

Meanwhile, a mile away from the pink house's new location, history is repeating itself in the Fort Trumbull neighborhood. Urban renewal, backed by eminent domain and taxpayer subsidies, has a sad and dispiriting history over the past 50 years, resulting in the destruction of poorer neighborhoods, and their replacement with failed or underperforming newer projects.

New London's Fort Trumbull project has so far been an unmitigated disaster. Despite the infusion of close to $80 million in taxpayer funds and three years elapsing since the Kelo decision, there has been no new construction in the area whatsoever. The preferred developer for part of the site, Corcoran Jennison, just missed its latest deadline for securing financing for building something—anything—on the site of the old neighborhood. The developer was so desperate for funding that it applied to the federal Housing and Urban Development agency to obtain taxpayer-subsidized loans to build luxury apartments in the area. Even the former editor of the local newspaper, who was a strong supporter of the project from its inception, admitted this month, "The city is unlikely to get much new tax revenue anytime soon in Fort Trumbull and a hotel [the supposed centerpiece of the project] is at least five years away, if at all."

Although Susette Kelo and her neighbors endured a tragic loss of their neighborhood, they can take comfort in the fact that they have left a legacy of real change and inspiration for millions of other property owners throughout the nation. On June 21, a ribbon-cutting ceremony and party was held at the little pink house, celebrating the fact that it will still be a home, and one that changed the nation for the better.

Scott Bullock is a senior attorney at the Institute for Justice, the non-profit, public interest law center that litigated the Kelo case. Bullock argued the case before the Court.

What Ever Happened to the Kelo House?

info@reason.com (Damon W. Root) — Fri, 20 Jun 2008 10:17:00 EDT

This Monday is the third anniversary of Kelo v. City of New London, the notorious decision where the Supreme Court upheld that city's use of eminent domain on behalf of the Pfizer Corporation. So what's the status of the "comprehensive" and "revitalized" development site today? Here's the Institute for Justice, the libertarian public interest firm that litigated the case:

Like so many other projects that use eminent domain and rely on taxpayer subsidies, New London's Fort Trumbull project has been a failure. After spending $78 million in taxpayer dollars, the city of New London and the private developer have engaged in no new construction since the project was approved in 2000. Indeed, since the property owners disputing the takings owned less than two acres in a 90-acre project area, the city has always had a vast majority of the land available for development. Yet, no new development has occurred. The preferred developer for part of the site, Corcoran Jennison, recently missed its latest deadline for securing financing for building on the site and was terminated as the "designated developer."

The property at the center of the case, the house owned by plaintiff Susette Kelo, has since been relocated in its entirety to another part of town. And tomorrow is the grand re-opening, complete with a ribbon cutting ceremony. If you're in the area, stop by and thank Susette Kelo and the fine folks at the Institute for Justice for fighting the good fight. Details here.

A Man's Home is Another Man's Castle

info@reason.com (Damon W. Root) — Wed, 11 Jun 2008 15:00:00 EDT

Last Tuesday, voters in California faced the choice between two statewide initiatives, each claiming to protect property rights against eminent domain abuse. The loser, Proposition 98, which was sponsored primarily by the Howard Jarvis Taxpayers Association, would have imposed significant limits on the ability of state and local officials to seize private property using eminent domain, and would have phased out rent control everywhere in California. The winner, Proposition 99, which was championed by the League of California Cities, will do neither of those things.

In fact, despite being titled the "Homeowners and Private Property Protection Act," Prop. 99 will dramatically undermine the rights of California property owners, farmers, landlords, and renters. Of particular concern is the fact that Prop. 99 specifically protects only "owner-occupied residence[s]" from eminent domain abuse, leaving apartment buildings and other rental properties, not to mention family farms, churches, and small businesses, wide open for the taking. And even that flimsy safeguard contains loopholes. Under the most notable exception, owner-occupied residences may be condemned on behalf of "private uses incidental to, or necessary for," public works and improvements (emphasis mine). As George Mason University law professor Ilya Somin notes, "This means that homes could still be taken for transfer to private developers if the proposed project allocated some space for a ‘public' facility such as a community center or library."

So what happened? Did Prop. 99 trick voters into thinking they were protecting property rights when they were actually undermining them? Or did a majority of Californians simply reject Prop. 98's controversial attack on rent control?

The short answer is yes to both. As critics charged, Prop. 99 looked like a legitimate reform measure, despite the fact that it actually leaves city and state officials with vast powers to condemn and seize property. Moreover, for those voters opposed to eminent domain abuse but unaware of Prop. 99's fine print, it would have made sense to vote yes on both measures, just to be safe. Yet under Prop. 99, if both measured passed, "the provisions of this measure [99] shall prevail in their entirety." In other words, Prop. 99 benefited—by design—from both intentional and miscast votes.

But Prop. 98's critics had a point, too. Limiting what a landlord charges in rent is a far cry from seizing somebody's house and handing the property over to a developer. Furthermore, while reforming eminent domain is a popular issue in California (and elsewhere), ending rent control is highly controversial. So not only was including the anti-rent control plank a bad strategic move, it gave Prop. 98 the appearance of bad faith as well. To put it another way, why bundle an unpopular proposal with an extremely popular one unless you're trying something fishy?

In hindsight, it seems clear that Prop. 98 should have been a straightforward assault on eminent domain abuse. That approach would have attracted a broad coalition of support. Consider the various liberal and left-of-center voices that spoke out against Kelo v. City of New London (2005), where the Supreme Court allowed the Pfizer Corporation to acquire private property via eminent domain under the city's "economic revitalization" scheme. Rep. Maxine Waters (D-Calif.), for instance, declared, "the taking of private property for private use is in my estimation unconstitutional, un-American, and is not to be tolerated."

Similarly, the National Association for the Advancement of Colored People (NAACP), in the amicus curiae brief it filed on behalf of the victimized Kelo homeowners, charged that not only were Kelo-style takings in violation of the Constitution, their burden "has and will continue to fall disproportionately upon racial and ethnic minorities, the elderly, and the economically disadvantaged." In California, however, groups representing racial and ethnic minorities and the elderly overwhelmingly lined up against Prop. 98, a testament to the measure's narrow appeal.

But the future isn't entirely bleak. Chip Mellor, President of the Institute for Justice, the libertarian public interest firm that litigated Kelo, recently told reason that the outcry against the Court's decision has resulted in forty-two states enacting "laws that change the status quo that was in existence at the time of Kelo." And while not all of these laws are perfect, "all of them are better than what existed before."

Prop. 99, of course, is now the exception to that statement, but Mellor's point remains strong. The Kelo backlash has sparked eminent domain fights from Brooklyn, New York to Raytown, Missouri. Too bad the authors of Prop. 98 squandered their shot at winning a real victory in California.

Damon W. Root is a reason associate editor.

California Voters Endorse Eminent Domain Abuse

info@reason.com (Damon W. Root) — Wed, 04 Jun 2008 10:37:00 EDT

Voters in California yesterday overwhelmingly supported Proposition 99, a ballot measure that will significantly empower state and local officials to seize private property via eminent domain, and rejected Proposition 98, which would have protected property rights and ended rent control. As legal scholar Ilya Somin noted in the Los Angeles Times, Proposition 99, though masquerading as a defense of private property, was actually sponsored by groups representing counties, cities, and other redevelopment interests who drafted it specifically to counter Proposition 98. Among other crimes, Proposition 99 will protect only owner-occupied residences from condemnation, leaving apartment buildings and other rental properties wide open for abuse. Moreover, as Somin observed:

Even the protection for homeowners covered under Proposition 99 is likely to be ineffective, because the measure allows the condemnation of owner-occupied homes if they are "incidental" to a "public" project. This means that homes could still be taken for transfer to private developers if the proposed project allocated some space for a "public" facility such as a community center or library.

Proposition 98, on the other hand, would have placed significant limits on such abuse. But while that might have gone over with the voters, ending rent control was far less popular, even though the law would only affect rent controlled apartments once they became vacant, thus leaving current tenants unaffected. Gov. Arnold Schwarzenegger came out against Prop. 98, however, claiming it "would undermine California's ability to improve our infrastructure."

Finally, as the Pacific Legal Foundation's Timothy Sandefur has warned, Prop. 99 will "make things far worse not only by providing fake protection, but because the courts would interpret it as meaning that Californians did not want more serious protections for property rights."

Big Wheels Keep On Turning

jwalker@reason.com (Jesse Walker) — Thu, 15 May 2008 09:43:00 EDT

The Alabama State Advisory Committee of the U.S. Commission on Civil Rights recently held a public forum on eminent domain abuse. Here are Rev. John E. Smith and his wife Gail explaining what the authorities did to their Birmingham church:

The Old, Weird Niagara

info@reason.com (Damon W. Root) — Tue, 13 May 2008 17:35:00 EDT

From last Thursday's Wall Street Journal, here's the great reactionary radical (and reason contributor) Bill Kauffman on Ginger Strand's intriguing new book Inventing Niagara:

Ms. Strand's populist defense of the glorious disorder of the private Niagara Falls Museum is of a piece with her appreciation of the falls as God and nature intended them to be. But just as the five-story museum was leveled by the New York State parks authority and replaced by a parking lot, so have the falls, in Ms. Strand's words, been "manicured, repaired, landscaped and artificially lit, dangerous overhangs dynamited off and water flow managed to suit the tourist schedule." One can't help noticing that the "improvements" Ms. Strand deplores were almost entirely the work of government. Those overhangs were blown off by the Army Corps of Engineers, which has trimmed, blasted, dammed and fortified this natural wonder and its river. State, not commerce, was unable to leave well enough alone.

As an American patriot, I've long been ashamed of the fact that Niagara's greatest attraction, the uncanny Criminals Hall of Fame Wax Museum, rests on the Canadian side of the falls. And as Kauffman notes, we can thank the bulldozers of the vile Robert Moses, among other government villains, for the destruction of "the carnival-barker spirit that once gave the city brass, if not class."

Whole thing here.

Property Rights are Civil Rights

info@reason.com (Damon W. Root) — Thu, 01 May 2008 17:08:00 EDT

reason contributors David Beito and Ilya Somin had a great op-ed in last Sunday's Kansas City Star explaining why eminent domain abuse should matter to civil rights activists:

Few policies have done more to destroy community and opportunity for minorities than eminent domain. Some 3 to 4 million Americans, most of them ethnic minorities, have been forcibly displaced from their homes as a result of urban renewal takings since World War II.

The fact is that eminent-domain abuse is a crucial constitutional rights issue.

Whole thing here.

Eminent Domain As a Civil Rights Issue

jwalker@reason.com (Jesse Walker) — Mon, 28 Apr 2008 10:30:00 EDT

An event in Alabama tomorrow that looks like it'll be worth watching:

Few policies have done more to destroy community and opportunity for minorities than eminent domain. Some 3 to 4 million Americans, most of them ethnic minorities, have been forcibly displaced from their homes as a result of urban renewal takings since World War II....

On Tuesday, the Alabama Advisory Committee of the U.S. Commission on Civil Rights will hold a public forum at Birmingham's historic Sixteenth Street Baptist church to address ongoing property seizures in the state. The church was not only a center of early civil rights action, but also, tragically, where four schoolgirls lost their lives in a bombing in 1963.

Whole article here. Event details here.

Supreme Anxiety

info@reason.com (Damon W. Root) — Mon, 21 Apr 2008 12:00:00 EDT

On Sunday, Supreme Court Justice John Paul Stevens celebrated his eighty-eighth birthday. Last month, Justice Ruth Bader Ginsburg turned a spry seventy-five. It takes no leap of faith to imagine America's next president replacing one or both of these justices on the Court. Aside from the usual talking points—one side will protect the right to choose, the other will overturn Roe v. Wade, etc.—what sort of justices should we expect from major party frontrunners Barack Obama, Hillary Clinton, and John McCain?

On the most pressing issues of the day, executive power and civil liberties during times of war, Sen. Barack Obama (D-Ill.) is by far the most palatable. For starters, he's clearly on record against the Bush administration's illegal wartime power grab—what the University of Chicago's Richard Epstein has called "executive power on steroids." Obama has said repeatedly that he'll close Guantanamo, restore habeas corpus to American-born enemy combatants, and end "the practices of shipping away prisoners in the dead of night to be tortured in far-off countries." He thinks the detention of American citizens without trial is illegal and is opposed to both warrantless wiretapping and the use of presidential signing statements to bypass federal law. Any judge sharing most or all of these views would be a welcome addition to the current Supreme Court.

At a glance, Sen. Hillary Clinton (D-NY) occupies similar ground. Stating her opposition to Judge Samuel Alito's recent confirmation to the Supreme Court, for instance, Clinton excoriated Alito's "excessive deference to presidential authority, coupled with his restrictive view of congressional authority, [which] tells me he doesn't have the proper reverence for separation of powers."

Fine words. But what about her own deference to the wishes of the White House when voting for the USA PATRIOT Act in 2001 and its reauthorization in 2006? What about her support for the 2003 invasion of Iraq, a position she's trying unsuccessfully to downplay in the face of Obama's more credible antiwar record? Does anyone actually believe President Hillary Rodham Clinton will inaugurate a more restrained executive branch? The candidate herself apparently doesn't. As Jacob Sullum noted here earlier this week, Clinton told ABC News that, "I wish that, when my husband was president, people in Congress had been more willing to recognize presidential authority."

John McCain, of course, has made winning the Iraq War the centerpiece of his campaign. Yet he's also spoken out forcefully against the use of waterboarding and rejected outright the use of presidential signing statements, telling the Boston Globe, "I will either sign or veto any legislation that comes across my desk." Those are big pluses.

On the question of enemy combatants, however, McCain turns coy, maintaining that while American citizens are entitled to due process, the commander in chief nonetheless retains the power to hold them as enemy combatants. Precisely what due process means in this context remains unclear. Ultimately, however, it's McCain's vigorous and misguided support for this unnecessary war that's the most troubling in terms of the future Court. There is every reason to believe that McCain's nominees would vote to uphold his administration's conduct and pursuit of the war. That's why he'd place them on the Supreme Court in the first place.

Nevertheless, McCain does have his moments. Asked by a writer from Human Events which legal precedent he'd most like the Supreme Court to overturn, McCain responded "eminent domain," a reference to Kelo v. City of New London, the deplorable 2005 decision which allowed the pharmaceutical company Pfizer to acquire private property seized via eminent domain under an "economic revitalization" plan. "That is one I am very concerned about," McCain stressed.

That's a great answer. But what about McCain's frequently repeated promise to avoid so-called activist judges, to nominate only those individuals who "do not legislate from the bench?" The Kelo decision, it's important to remember, represents McCain's dream of judicial restraint, not his nightmare of judicial activism. In Kelo, Justices Stevens, Breyer, Ginsburg, Souter, and Kennedy deferred to the wisdom of local officials; they respected the electoral preferences of local voters. Only an activist Court would have struck down New London's development scheme. Indeed, it would have taken a majority that legislated its own views "from the bench" to save Susette Kelo's home from the bulldozer. On this point, of course, McCain simply echoes the confusion of most contemporary conservatives, who rail against judicial activists for striking down sodomy laws on the one hand, while openly wishing for activist judges to strike down affirmative action and eminent domain laws on the other.

Still, McCain's muddled take on law and economics at least recognizes property rights. His Democratic opponents are openly hostile to any decision that would limit the size or scope of the regulatory state. Explaining his vote against the confirmation of Judge John Roberts to the Supreme Court, for example, Senator Obama listed a handful of contentious issues where "what is in the judge's heart" will prove critical. In addition to abortion and affirmative action, both of which are predictable litmus tests for any Democrat, Obama singled out the question of "whether the Commerce Clause empowers Congress to speak on those issues of broad national concern that may be only tangentially related to what is easily defined as interstate commerce."

He's referring here to the post-New Deal trend of Congress relying on its constitutional power, under Article 1, Section 8, "To regulate Commerce...among the several states," in order to pass legislation touching on every aspect of American life, from economics to crime. In essence, as the legal scholar Randy Barnett has argued, by adopting the widest possible interpretation of the Commerce Clause, "courts have granted Congress a near plenary power to do anything it wills and have thus nearly destroyed the system of limited enumerated powers."

Which is apparently fine with Barack Obama. So is the Court's disastrous decision in Gonzales v. Raich (2005), which struck down California's medical marijuana law in favor of federal anti-drug laws "tangentially related" to interstate commerce. Given Obama's weepy remarks last year to Planned Parenthood, where he described his ideal Supreme Court justice as "somebody who's got the heart, the empathy" to sympathize with society's downtrodden, Obama's lack of empathy for medical marijuana users is doubly deplorable.

Not that Hillary Clinton's record on the Commerce Clause is much better. Consider her response to U.S. v. Lopez (1995), where the Supreme Court nullified the Gun-Free School Zones Act, which had made it a federal crime under the Commerce Clause to knowingly possess a handgun within 1,000 feet of a school. Speaking before the liberal American Constitution Society in 2003, a speech later reprinted in the Georgetown Law Journal, Senator Clinton attacked Lopez for imposing-for "the first time in sixty years," no less-a "substantive limit on what Congress can and cannot do under the Commerce Clause." As if that wasn't bad enough, Senator Clinton found herself worrying about the constitutionality of every bright new idea. "The next time I consider school safety legislation, should I wonder whether school safety is ‘truly national' or ‘truly local,'" she asked. The answer, by the way, is yes. Of course she should wonder, as should every lawmaker. That they don't is all too obvious.

So where does all that leave libertarians over the next four years? Given that the Supreme Court is very likely to hear cases challenging the Bush administration's wartime policies and very unlikely to revisit the Kelo or Raich decisions, Obama definitely emerges as the lesser evil. But given his dangerously illiberal views on economics, as well as the tough political realities he (or Clinton or McCain) will likely face, we're better off forgoing hope and preparing for the worst.

Damon W. Root is a reason associate editor.

Papa Needs a Brand New Park

kmw@reason.com (Katherine Mangu-Ward) — Fri, 07 Mar 2008 15:05:00 EST

Twin 75-year-old veterinarians James and Jock Collins (pause and enjoy the fact that these people exist before reading on) bought a little piece of property as an investment in a Houston neighborhood in 1982 for $363,750.

Instead of enjoying the proceeds from their investment, however, the 75-year-old twins are locked in a battle with the city of Houston. In an unusual use of its eminent domain authority, the city has condemned the property to develop a small "pocket park" on the edge of a large, upscale redevelopment project.

The District offered the Collins twins $398,035 in 2004 and the developers offered them $1.4 million in 2006. The turn down both offers. A few months after the second offer, the City of Houston suddenly decides it needs a park on their property and offers $433,800. The brothers decline. In November 2007, eminent domain proceedings begin.

The developer, who serves on the District board and has ties to City Hall, says he's "offended" by the suggestion that the city wants the property to benefit his project. Take a look at the map and see what you think.

And why is the park so desperately needed?:

Joe Turner, the city's parks and recreation director, acknowledged that it is rare for the city to use its eminent domain authority to acquire land for parks. But in this case, Turner said, the action was justified.
"We have a shortage of parks in that area, and the Uptown District has done a good job of maintaining parks," Turner said.

Read reason on the Kelo eminent domain case here.

Litigating for Liberty

gillespie@reason.com (Nick Gillespie) — Mon, 03 Mar 2008 16:30:00 EST

If you’ve seen a case of state-on-citizen injustice become a mainstream outrage from coast to coast, chances are Chip Mellor had something to do with it. Mellor founded the Institute for Justice, arguably the most effective public interest law firm dedicated to property rights and choice, in 1991.

Since then IJ has “litigated for liberty” on behalf of small entrepreneurs and property owners against rapacious City Halls. In its most famous case, it defended homeowner Susette Kelo at the U.S. Supreme Court against the city of New London, Connecticut, which seized her house using eminent domain to clear the way for a big real estate project that never really got off the ground. Although the Supreme Court ruled against IJ’s client, Kelo v. New London was a tremendous political success, triggering a backlash that has rolled back eminent domain abuse in more than 40 states. Which was exactly the point.

“All of our cases,” the 58-year-old Mellor says, “are viewed and deliberately designed as platforms to educate the general public about the importance of what may seem to be unique or even arcane issues and why those issues affect many, many people beyond the particular case.”

Born in Knoxville, Tennessee, and raised all over the upper Midwest, Mellor was an anti-Nixon, anti-war activist at Ohio State from 1969 to 1973; discovered the works of the economist Milton Friedman, the anti-communist writer Whittaker Chambers, and the novelist Ayn Rand; and earned his law degree from the University of Denver with ambitions to “change the world.” That led him to the Mountain States Legal Foundation, one of the first non-lefty public interest law firms, where the self-described hippie worked for James Watt, the soon-to-be-despised future secretary of the interior, whom Mellor describes as a “fascinating man.”

In the 1980s, Mellor moved on to the Reagan administration, where he was a deputy general counsel in the Department of Energy. After that he served for five years as director of the Pacific Research Institute, where he helped “develop a strategic long-term…libertarian litigation strategy,” one that would come to full fruition with the founding of the Institute for Justice.

IJ has helped everyone from New York jitney drivers to D.C. hair braiders to New Orleans florists defeat unreasonable, frequently ridiculous legal restrictions that prevented them from earning a living in their chosen trade. In recent years the law firm has branched out to defend free speech against campaign finance laws and school vouchers against teachers unions, earning high praise along the way from the likes of Mellor’s hero Milton Friedman. “The Institute for Justice,” Friedman once said, “has become a major pillar of our free society.”

Editor-in-Chief Nick Gillespie spoke with Mellor in IJ’s Arlington, Virginia, offices in September 2007.

reason: Let’s talk about the First Amendment and particularly your political speech cases. IJ has traditionally focused on economic liberty issues—the ridiculous licensing of hair braiders and florists, for example. Wading into speech issues is a relatively new initiative.

Chip Mellor: Yes. We’re challenging the stranglehold campaign finance laws pose for vibrant political free speech. We won a case recently in the Washington state Supreme Court in which the state had passed a 9.5 cent per gallon tax increase and some folks organized an initiative to repeal that. Amongst those supporting the initiative were two talk radio hosts. They opposed it and used time on the air to rail against the injustice and insanity of this kind of tax.

The election commission there slapped them with a cease-and-desist order on the grounds that the time they had spent on the radio advocating against the tax constituted an in-kind contribution to the anti-tax campaign.

reason: And we can guess that had they been talking about how great the tax increase was, they wouldn’t have been fined for political speech.

Mellor: Right. A twist on this is that the law firm doing the enforcement activity had direct ties to the city and would benefit from the gas tax increase because of the work it did.

These campaign finance laws get very complicated and very technical very quickly, so many people don’t understand them very easily. Something like in-kind contributions might not sound that bad. But the practical reality is that here the limit is $5,000 per campaign or per cycle for in-kind contributions. That’s about five minutes on talk radio.

reason: What happened?

Mellor: We won. That part of the law was invalidated. They were able to keep talking up to a point, but there was a period of time when they had to do that at risk. They were brave enough to do it, but other folks might not be, so it has this chilling effect that even when you fight back, you’re in this limbo not knowing what the ultimate outcome is going to be.

reason: What are some of the other problematic campaign finance laws?

Mellor: One perverse aspect of McCain-Feingold and Buckley v. Valeo, the predecessor case, is that both allow legislators wide latitude to pass laws limiting political speech for the purpose of avoiding the appearance of corruption. That standard—the appearance of corruption—is obviously so vague and so much in the eyes of the beholder or the politician that it allows virtually unfettered discretion and potential for abuse. You see that playing out in McCain-Feingold with the restrictions on advertising 30 or 60 days before an election. Unions and corporations are not allowed to express advocacy for or against a candidate 60 days before a general election and 30 days before a primary. What that basically means is you can’t take out paid advertising and make your position known.

reason: It has the explicit intention of limiting the amount of information that would be available to voters.

Mellor: Yes. On the express assumption that this is somehow corrupting the political process and this is somehow beleaguering voters with information that might make them make a bad choice.

reason: If the AFL-CIO or Bechtel can just throw an unlimited amount of money saying that George Bush is a bastard or John Kerry is the greatest thing since sliced bread or whatever, why shouldn’t that be regulated?

Mellor: The whole notion of democracy is the ability to persuade others to adopt the views that you have in voting for the candidate or the issue that you prefer. That’s true of the AFL-CIO or John Doe on the street. Reaching large numbers of people often requires the enlistment of media or of an extensive advertising campaign. It just goes hand in glove with making your views known. In the early days it was pamphlets; today it’s TV.

Two things will always happen. One is that money will always find its way into elections. The problem isn’t too much money in politics; it’s too much power in government. I think that’s absolutely correct. As long as government has the favors to dispense and the power to dispense, people will find ways to get the money to it. It’s a fool’s errand to try to just limit the money.

Second, as long as America is a democracy, you’re always going to have people trying to make their views known. And that’s as it should be. So the attempts to limit this and to impose these increasingly complicated obstacles are doomed to failure and at the same time are going to increasingly create incentives for cynicism, for all sorts of intermediaries. You have to hire lawyers, accountants. You have to do all these sorts of things, and it will serve the interests of the entrenched political establishment because it will be the most able to adapt to them. It will paralyze outsiders and insurgents because it will be harder for them to organize and penetrate these increasingly complicated and arcane rules.

One good example of that is a case we have in Colorado. In Parker North, which is not too far from Denver, a neighborhood found out that it was going to be annexed. Parker North was suddenly going to become part of Parker. That carried with it increased taxes and other obligations that the residents of Parker North were not interested in, so several folks got together and just started talking among themselves in their backyards and said let’s fight this, let’s organize against it. So they began posting yard signs and organizing a bake sale and that sort of thing to increase interest among the residents in their community to vote against the annexation. Partway through the campaign they were served with a cease-and-desist order saying they’d violated the campaign laws of Colorado because they had spent more than $200 simply to influence the outcome of an election and they failed to account for every penny of that, from bake sales, on yard signs.

These are feisty folks. They didn’t give up, but others might, and it’s still in trial.

reason: Will they win?

Mellor: I think we’ll ultimately win, but the fact that we’re in trial, that it’s not a slam-dunk victory for us, should tell you something.

reason: How do you feel about mandatory disclosure laws?

Mellor: Mandatory disclosure laws are often viewed as a painless way of accommodating some degree of regulation of campaign financing such that people at least know who is backing whom. I think that oftentimes people overlook problems created through disclosure, and we ought to consider those problems and determine if those costs are worth bearing. Any time you have to disclose, you’re in essence putting your vote on record. You may feel perfectly comfortable saying, “I back Ron Paul,” but other folks may be in a position where coming out visibly for a candidate or an issue could compromise them in their community, in their workplace, in their church or synagogue, or some place like that, and they may be very reluctant to have their name appear not just in some obscure filing in a city hall file cabinet but on the Internet.

reason: What was the first case that IJ took on?

Mellor: The first case was in 1991 and involved a wonderful entrepreneur here in Washington, D.C., named Taalib-Din Uqdah and his wife, Pamela Farrell. They were entrepreneurs seeking to braid hair but had the misfortune of doing so without a license to practice cosmetology.

Hair braiding is a means of both artistic and cultural expression as well as personal preference for the way that hair is styled, particularly in African-American and Caribbean communities. It is widely practiced and very popular. It’s often practiced in the home and passed on from mother to daughter in sort of an informal apprenticeship, because it is a very elaborate means of styling hair. But Taalib-Din had opened a salon. It was in a home, but one where they’d converted the first floor to a salon. He employed about a dozen people.

He actually received a knock on the door from the D.C. cosmetology police informing him that he was practicing cosmetology without a license, and he had to cease and desist immediately or face a fine—I believe it was $1,000 a day—and possibly even imprisonment for the crime of braiding hair and employing people. And when he went down to get a license, of course, he found that it was much harder than one would expect because it required that you actually attend cosmetology school for a couple of years, that you have thousands of hours of training learning skills that have nothing to do with African hair braiding. Adding insult to injury, it required you to demonstrate your proficiency by showing that you could, on a practical exam, style women’s hair in finger waves and pin curls, which were the hair styles popular with white women in 1938, when the law was passed.

reason: What happened in the case?

Mellor: We lost at the U.S. District Court and were moving it up through the appeal process when we were successful through both media and other efforts in getting it deregulated in the D.C. City Council.

reason: How did the media respond?

Mellor: All of our cases are deliberately designed as platforms to educate the general public about the importance of what may seem to be unique or even arcane issues and why those issues affect many, many people beyond the particular case, both in terms of the situation and also in terms of the constitutional principle involved. Here we had a wonderful media response from everybody. They picked up on several things: 1) the inherent injustice involved; 2) the compelling story that the clients had to tell; and 3) the way in which the law was really rigged against what could otherwise be a totally legitimate and productive activity.

The principle of law there is applicable whether it’s hair braiding or cab driving or casket retailing or flower selling or any number of entry-level occupations that are subject to arbitrary regulations.

reason: Could you talk a little bit about that type of case?

Mellor: In economic liberty cases, the standard of the law today is so abominable that the government virtually gets a free pass to regulate any activity it wants in almost any fashion. The legal standard is literally that any reasonably conceivable set of facts will suffice to justify an economic regulation, even if those facts weren’t present or considered by the legislature when the law was enacted.

For instance, look at the 2003 case we had in Louisiana involving flower retailing. There anyone who arranges flowers—which means, by law, putting two flowers together—and then sells those flowers for any amount of money has to be a licensed florist or work for a licensed florist.

reason: Who does the licensing? Is it a state board?

Mellor: Yes, it is. Of course, it’s comprised of florists. These restrictions were all made out of Public Choice 101 usually.

reason: Meaning that a cartel or a politically savvy group of people get together to limit marketplace entry.

Mellor: Right.

reason: When did the Louisiana law go into place?

Mellor: In the 1940s. There was a proliferation of these licensing laws in the Progressive Era and an explosion of them after the New Deal. They’ve just continued to increase as the number of occupations has grown and enterprising people have created more niches.

In Louisiana, once they set this law in place, it was regulated by the floristry board that was comprised of florists. Surprisingly, or perhaps not so surprisingly, the passage rate on the practical exam—where you arrange flowers and show your proficiency—was about 35 percent a year. It was utterly subjective. They’d just say things like, “It doesn’t have the proper sense of balance. It doesn’t have the proper perspective. It’s not artistic enough.”

There was no appeal from it, no standard of review. You were basically stuck. Many more people passed the bar exam in Louisiana than passed the floristry exam.

The state was arguing that you could create a corsage in such a way that someone could prick their finger on the pin, and that this was a public health and safety rationale sufficient to uphold that law. That’s literally what they were arguing.

In Oklahoma we had a case where individuals were seeking to sell caskets without having to be fully licensed funeral practitioners. Bear in mind that the fully licensed funeral directors have to go to school for two years, have to embalm bodies, have to do all sorts of things that have nothing to do with selling what amounts to a box.

And you can only go to a funeral director for a casket. Markups of 100 to 600 percent are routinely imposed on casket buyers in the funeral home context.

The court said that Oklahoma had a legitimate interest in protecting the funeral home industry from competition. That opinion should chill everyone who believes in free enterprise, because it says dispensing favors is the national pastime of state legislatures. Economic protectionism is a sufficient ground alone to justify this kind of practice.

reason: But in other areas of commercial activity that have long been regulated, things seem to be going in the other direction. You can buy mail-order dentures now. You have 1-800-CONTACTS. Before you would go to an eye doctor, you would get a prescription, and then often you would go to a captive optician to buy your contact lenses, your glasses, etc. That seems much more open now. In certain areas where things were tightly regulated, it seems to be loosening up.

Mellor: Obviously, the Internet has had a profoundly beneficial effect on commerce and on the choices available to consumers. At the same time, though, people who are active in their communities providing goods or services in those communities as entrepreneurs are increasingly subject to licensing and permitting requirements that range from annoying to impenetrable. That’s the real burden, and that’s what we’re trying to stop. These burdens fall most heavily on folks who are really the aspiring entrepreneurs at the entry level, trying to break in for the first time or move up the next notch.

reason: So it’s the flower arranger seeking to go out on her own in New Orleans.

Mellor: Or the cab driver, the jitney driver. Virtually every city in the country has some degree of entry control and monopolization with the cab market. At the same time, cabs have provided a wonderful means of entry-level opportunity for entrepreneurs, often immigrants. They provide flexibility. They provide an opportunity to work as hard as you want and earn as much money as you can or as little as you want.

It’s one thing to say that under the police power of the government they can require safe vehicles and insured vehicles and competent drivers. But they start creating monopolies, limiting the number of cabs that can enter a market, regulating rates. We’ve worked in Denver, Indianapolis, Cincinnati, Minneapolis, and New York to open up transit markets. We’ve had success, but we have a lot yet to do.

reason: Give an example of a success.

Mellor: Maybe you’ve been to Queens or Brooklyn and seen the commuter vans that operate there. These are wonderful community-based transportation options for folks who prefer them over public buses, which are usually woefully inadequate; cabs, which are nonexistent; or private cars, which are either unaffordable or inconvenient. In the mid-’90s, when we took on the case, there were about 60,000 people a day using these otherwise illegal vans to get from point A to point B because the vans ran on a fixed route.

reason: You would show up at a particular place and get in and pay a certain amount of money.

Mellor: One buck. They were called dollar vans. They’ve since changed a little bit, but at the time it was a dollar and you got on and went as far as you wanted with that dollar. They were efficient and safe, yet they were illegal, because the city council had passed a law at the behest of the transit workers unions and the public bus companies that limited the number of vans.

We fought against that with a lawsuit and the media. The Giuliani administration was actually supportive of our efforts, and we got the arbitrary procedures ruled unconstitutional. The vans are allowed to operate and have flourished since.

reason: Talk a little bit about the wine case.

Mellor: It’s a little different in that it was under a different provision of the Constitution, not the 14th Amendment but the Commerce Clause. It involved a woman who unfortunately just passed away, Juanita Swedenburg, and Swedenburg Winery out here in Middleburg, Virginia. She, like so many winemakers around the country, was subjected to a law that made it illegal to ship her wine to individual purchasers in other states. These were protectionist laws that were set up in various states to favor in-state wineries.

reason: Obviously, you could ship your wine to wholesalers.

Mellor: Yes. The wholesalers were really the 800-pound gorillas in this whole thing. They were the middlemen who were profiting—and still are profiting in some states—by the constraints imposed through these protectionist laws. They were very powerful and influential lobbies.

We took Juanita’s case to the Supreme Court and won. That has freed up wine shipment and the ability to get wine around the country. Because of the way states have authority to regulate wine or alcohol under the 21st Amendment, there are still some barriers that can be set up, but this removed a big one.

reason: Eminent domain has been a huge issue for you. How did it present itself as an area that demanded IJ’s attention?

Mellor: It’s a property rights issue. Eminent domain abuse had been of concern to us since our earliest days, but we really didn’t take it on until the mid-’90s, when we came across this situation in Atlantic City, New Jersey. Donald Trump, who owned a casino, had obtained the authority of eminent domain to condemn and tear down the home of an elderly widow right across from his casino in order to build a limousine parking lot to provide what Trump called a proper sense of arrival for his clients. We won that case in court and got tremendous media attention in the process, and that resulted in a deluge of inquiries and approaches to us from folks around the country who were suffering from similar plights.

Frankly, we had not realized just how widespread this phenomenon was until then. It was a terrible under-the-radar-screen tyranny that was sweeping the country. Once we became aware of it, though, we formed a strategic plan to escalate it to national attention and ultimately to the Supreme Court, which we did in the course of the next seven years.

We percolated several cases through the court system, all of which were wonderfully suited to bringing this issue to the U.S. Supreme Court. One of them involved Susette Kelo and several of her neighbors in New London, Connecticut, whose homes were being taken to provide what amounted to amenities for the new Pfizer plant being constructed there. High-end condos or a hotel or an office complex, a variety of things that would purportedly increase the tax revenue for the city and give a more amenable neighborhood for what Pfizer wanted there.

reason: For eminent domain to happen, you have to condemn a property.

Mellor: Yes. As the Supreme Court has done in tragically far too many instances, the words in the Constitution were interpreted or twisted to mean something entirely different from what they were intended to mean. The Constitution says “nor shall private property be taken for public use without just compensation,” and those words “public use” were twisted in a 1954 case to mean public purpose.

reason: That was in the context of urban renewal?

Mellor: That’s right. They razed a slum in Washington, D.C., to put in public housing and other developments. They said clearing the slum was a public purpose, and that was sufficient to do it.

reason: The difference between purpose and use here is that public use had traditionally meant a school, a hospital, possibly a publicly funded hospital, a library.

Mellor: It’s what common sense and historical practice would lead you to believe it was. Something owned and used by the public.

reason: Why wouldn’t a housing project fit into that context?

Mellor: Number one, that was never envisioned by the founding fathers. Number two, it’s not the typical public property ownership where you’ve got it available to the public in an open and even way.

reason: So even though it’s publicly owned and operated, it’s not like you can go into anybody’s apartment.

Mellor: Right.

Once this practice was blessed by the Supreme Court, it ushered in an entirely new practice in urban redevelopment which had a horrible legacy for cities across America and the people who live in them. Entire neighborhoods were razed. People, especially in minority neighborhoods, were displaced, and horrible new public housing projects were created.

The practice went from slums to blighted areas to not-so-blighted areas and ultimately to perfectly fine neighborhoods. A “public purpose” was deemed to be anything that increases a city’s tax base and creates more jobs by tearing down whatever was in one spot and replacing it with something deemed more appropriate—usually at the behest of, or certainly for the benefit of, private developers.

reason: How many of the original affected homeowners in New London sold out at the first opportunity? Originally they were given market value.

Mellor: Some did sell out, many of them under protest. What happens—and this is a very standard operating procedure under eminent domain—is you’re basically approached by an agent for the developer and informed that they’re there to make you an offer, which usually comes as a surprise to most people because they don’t have their houses for sale. They’re told that we’re here to make you an offer, we think it’s a fair offer, in fact we think it’s a generous offer. However, if you don’t agree, we’re going to have to go to the city, and they’re going to condemn your property and, you know, we just can’t guarantee you’ll get this much money. You may get less.

reason: What did Kelo and her co-defendants do?

Mellor: They said no. Susette Kelo said that she was not going to move, that she had bought that home with hard-earned money and had restored it lovingly. She was living there with her husband, and this is where they wanted to stay. It wasn’t a matter of money. This was their home.

We knew we had an uphill fight in the Supreme Court. Sandra Day O’Connor had written one of the worst opinions on the issue back in 1986, and William Rehnquist had joined her, so that made it tough to figure out how we were going to get five votes. Nevertheless, we were there and we were going to make the best case. By this time, we had also developed a national campaign of public awareness in the media, and that was working pretty well.

When we got into court, the good news for us came when O’Connor leaned forward during the argument of the opposing side, the city council side, and said, “Stop a minute, counsel. Let me see if I understand. Do you mean to say that it’s your position that the City of New London could take a Motel 6 and give it to Ritz Carlton?” And he said what he had to say. He said yes, that’s my position, and she had a look of utter disbelief on her face. She sat back, and we knew at that moment we’d reached her.

She wrote a wonderful dissent, but sadly it was a dissent. We lost 5-4, with Kennedy coming in with a very unfortunate concurrence that purported to set some limitations on eminent domain.

reason: There’s a bizarre coda to all of this, right?

Mellor: Yeah. The development’s not going to happen. It’s utterly at the end. It’s not a viable effort at all.

Susette’s house, though, is going to remain standing. They moved it from where it was located to another spot in town. It will stand as a symbol for property rights for the future.

reason: After Kelo you kept litigating this issue.

Mellor: We announced a national campaign to take this to the states, because the one ray of hope in the majority opinion was that the states could do more to protect property rights if they chose. So it was our duty, our opportunity, to go to the states and get greater protection.

reason: Can you talk briefly about how that played out in Ohio?

Mellor: Sure. We had a situation outside of Cincinnati where a neighborhood was being condemned to expand a shopping center. Some wonderful clients there had homes, or in one case a business, that they cherished. We were up against an enormously powerful developer and the city, who were determined to take this property

The law in Ohio was not very good. They’re allowed the condemnation of property if it was declared blighted, and to be declared blighted there was a list of subjective standards that could fit just about any neighborhood, such as diversity of ownership or cul-de-sacs. This neighborhood had, in fact, been declared blighted under those highly subjective standards.

We argued the case in the year after Kelo, and one thing that was evident during the argument was that the court was very, very sensitive to the outrage that was evident around this issue throughout the country. In the days after the Kelo decision, poll after poll after poll was showing astonishing opposition to that decision—70, 80, 90 percent against the government and in favor of property owners.

We won a unanimous decision at the Ohio Supreme Court level. This is the kind of decision lawyers live an entire career for and rarely get. Not only was it unanimous, not only was it in our favor, but this decision quoted Richard Epstein, Bernie Siegan, John Locke, spoke of natural rights—I mean, all of these wonderfully important authors and concepts woven into an unabashed defense of property rights and striking down, among other things, these utterly subjective notions of blight, recognizing them for the sham that they are.

reason: This is an example of where you lose in the U.S. Supreme Court but you generate a huge backlash.

Mellor: Without the Kelo decision, business would have continued as usual. Business as usual meant a complete drift in the direction of greater government authority with eminent domain, less protection for private property rights. Today that’s profoundly different. Forty-two states have enacted laws that change the status quo that was in existence at the time of Kelo in a way that to some degree provides more protection for private property rights. Some of those are modest and minor degrees; some of them are profoundly important degrees; some of them are kind of in the middle. But all of them are better than what existed before.

reason: What are your areas of greatest concern looking into the future?

Mellor: First, I’m worried about the fact that there’s a lot yet to be done on the areas that we’ve carved out. We’ve made measurable, notable, and I think significant progress in those areas since we started, but we’re a long way from the rule of law we need for a free society.

I think those are going to be compounded by the challenges we face in the coming years in the realm of the war on terror and the war on drugs.

reason: How so?

Mellor: There’s no question that we are on a precipice over which we could easily tumble, especially if there’s another major terrorist development whereby the state, at all levels, will gain greater authority. The presumption in favor of state authority will escalate dramatically and that will bleed over into all sorts of activities that we take for granted today, whether it’s financial transactions, whether it’s property ownership and use matters, whether it’s education, whether it’s travel. The liberties that are in the fabric of everyday life could be chilled and then perhaps profoundly restricted.

reason: Do you think we’re more free or less free in that kind of big-picture sense? Are we more free or less free than we were in, say, 1975?

Mellor: I think that we’re more free. The proliferation of new media, the availability of new mechanisms for investment and financial transactions that have dispersed and created wealth for vast numbers of people, property ownership, access to information—all those are wonderfully exciting new developments.

But I think the potential for being less free is far greater, along the lines of what I was talking about with the war on terror and the war on drugs. That whole effort to give government the benefit of the doubt when it comes to its exercise of authority is the real problem that we face. More and more people are willing to do that in more and more areas, and as that happens, as that becomes the prevailing way of thinking, then naturally government will expand into those new initiatives.

What we really face is a Zeitgeist of assumptions. It’s the accumulation of many years of repetition of collectivist thinking, and it allows people to accept as a given things that they would have questioned or been outraged about years ago.

Now Playing at Reason.tv: Drew Carey Exposes Eminent Domain Abuse in Hollywood

Tue, 18 Dec 2007 07:00:00 EST

Reason.tv host Drew Carey revisits the problem of eminent domain abuse following up on his earlier video, National City: Eminent Domain Gone Wild.

The City of Los Angeles used eminent domain to take a popular Hollywood bar and numerous other small businesses so that the city could hand the land over to private developers planning to build a W hotel and million-dollar condos. Fortunately, there's a better way to revitalize neighborhoods. In contrast to Hollywood, nearby Anaheim has found a way to encourage redevelopment by working cooperatively with property owners, without using the power of eminent domain.

Click here to watch Redevelopment: A Tale of Two Cities, now.

Redevelopment: A Tale of Two Cities

Tue, 18 Dec 2007 06:00:00 EST

...

Eminent Domain Gone Wild

Thu, 15 Nov 2007 06:00:00 EST

...

Now Playing at Reason.tv: Eminent Domain Gone Wild

Thu, 15 Nov 2007 06:00:00 EST

Click on the image to see the full video.

Reason.tv host Drew Carey visits National City, California, where the local government is taking eminent domain abuse to new lows.

Eminent domain is the constitutionally sanctioned practice of taking land for legitimate public uses. Traditionally, that's meant things like roads and schools. Over the past several decades, however, governments have gone hog wild with eminent domain, routinely condemning property and turning it over to well-connected private developers as a way of subsidizing economic development and increasing tax revenues (never mind that it doesn't always work out that way).

Officials in National City, a predominantly Hispanic community near San Diego, have pushed to bulldoze a popular athletic center for struggling kids to pave the way for private developers to build new luxury condos.

As tragic and absurd as this may sound, such outrageous affronts to property rights are an almost daily occurrence. Episode 3 of The Drew Carey Project chronicles the devastating impact of eminent domain abuse on the lives of people whose property the government can threaten to take, not for public use, but for the benefit of wealthy developers.

Waltz Across Texas

jwalker@reason.com (Jesse Walker) — Mon, 24 Sep 2007 10:35:00 EDT

Not all the opposition to the Trans-Texas Corridor is coming from paranoid nationalists. From a Time story on the project:

David Langford, an activist for the Texas Wildlife Association, is organizing farmers and ranchers whose land could be cut in half or condemned by the Trans-Texas Corridor. An early plan for central Texas showed a corridor passing near the homestead Langford's family settled in 1851. With the state's new "quick claim" ability -- granted under TTC legislation -- his family homestead could be gone in 90 days, he says, transferred to private investors operating the corridor. Though he would be compensated financially, he's still steamed. "I can't believe Rick Perry's grandfather would want his house and ranch taken and turned over to Paris Hilton's family to build a hotel on one of these roads," he says.

Opponents argue the roads may require the seizure of "more than half a million acres of private property." Gov. Rick Perry's "Trans Texas Corridor Fact Sheet" doesn't mention a total -- it gets vague whenever the interesting criticisms come up -- but it does claim that the project "will ultimately result in the purchase [sic] of less public land than would otherwise be needed to keep up with growth, and all the needed land will be purchased during one process, instead of on a piecemeal basis as we need to build out infrastructure one project at a time." Apart from the moral issues involved in taking private property, this runs up against the possibility that a process of "piecemeal" evolution is less likely to grab giant chunks of land that aren't actually "needed."

One thing that isn't clear to me, as a fellow who hasn't lived in Texas for years and hasn't been following this story closely: How much is the state planning to spend on the corridor, and how much is coming from private sources? Perry's factsheet says that "The first segment of the corridor...will require no tax dollars up front for construction while ensuring a $7.2 billion private investment in the corridor." The phrases "first" and "up front" imply that Texas taxpayers will be paying money down the road, but somehow a document that can cite the exact amount a private company will be spending doesn't say how much the state plans to kick in.

Update on the Rack 'n' Roll Pool Hall Case

rbalko@reason.com (Radley Balko) — Tue, 11 Sep 2007 12:16:00 EDT

For those of you following case I've been reporting involving David Ruttenberg and the city of Manassas Park, Virginia's efforts to shut down his pool hall, there have been some significant, sordid, and bizarre developments.

So far, our story involves a 60+ member SWAT team raid on the bar on ladies' night (with video!), possible eminent domain abuse, horse racing, police-instigated drug activity, police harassment, and allegations of sex abuse (to get caught up from the beginning, start at the bottom of this page, and scroll up).

The new developments involve the town's former vice mayor (who is also a part-time DJ, and former head of the town's Republican Party), naked women, a secret file of photos, and something called "Boobie Bingo."

All the dirty details at my personal blog.