Susette Kelo, who took the right to keep her pink cottage in New London, Conn., all the way to the US Supreme Court, has sparked a new cottage industry in the protection of property rights.
The High Court ruled last June that New London could take Ms. Kelo's home to make way for a private commercial project that would produce more jobs and taxes. The ruling has ignited a nationwide campaign to restrict this type of eminent domain.
The taking of property for private commercial development is legal in most states, but now more than 30 states are under pressure to strictly limit eminent domain to projects that are clearly for public use. Congress, too, is looking to withhold federal funds to states that allow the taking of property for private projects.
Defending property rights is essential to any democracy and to market-driven economies, and speaks to the freedom of individuals to prosper through ownership. Private property is so important that the Fifth Amendment to the Constitution says it can only be taken for "public use" and with "just compensation."
Traditionally, "public use" has meant projects such as highways, schools, and public housing. But the Court's 5-to-4 ruling interpreted "public use" to also mean "public purpose," arguing that New London's economic revitalization strategy centered around a planned private research facility by Pfizer Inc. would benefit the community at large.
In her dissenting opinion, Justice Sandra Day O'Connor warned that nothing now would stop a state from replacing a Motel 6 with a Ritz-Carlton or a home with a mall. Indeed, the ruling seemed to further empower the powerful and connected (i.e. politicians, corporations, and developers) over business owners and residents in poor or modest neighborhoods ripe for redevelopment.
It's comforting to know that US Chief Justice nominee John Roberts concurs with the court's majority that states can curb the ruling's effect. At his confirmation hearings, he said states needn't use eminent domain "to the broadest extent that the Supreme Court has ... authorized."
State remedies vary. Some try to clarify what eminent domain can be used for ("recognized public use" or "urban blight"). Others try to prohibit certain uses (such as for economic development, more tax revenues, or to transfer property from one private party to another). Lawmakers must be extra careful when defining public use, because they can unwittingly confine their states to an unwelcome straightjacket, or loose them from a deserved one. In 2003, for instance, alert residents in Lakewood, Ohio, defeated a plan to turn their neighborhood of modest homes into condos based on a developer-friendly definition of "urban blight." That definition included homes lacking an attached two-car garage, two full baths, and three full bedrooms.
Perhaps the most meaningful of the restrictions being considered by states are those that call for enhanced public participation - through notices, hearings, and negotiation. Property use decisions must be transparent, not decided in secret deals between politicians and campaign contributors. It's the business and home owners who stand to lose their properties who deserve the most say in what happens to them.