eminent domain in 2006

As anyone who reads newspapers or listens to political talk radio already knows, eminent domain is rapidly emerging as one of the key hot-button political issues, locally and nationally, of the next election cycle or two. Eminent domain is the practice long established in modern "common law"--and enshrined in the "takings clause" at the tail end of the 5th Amendment to the U.S. Constituion--that allows government to "take" private property in the name of the common good. While long controversial, it's a standard component of urban renewal/redevelopment efforts, everything from making room to build a new freeway or expand an airport to promoting the economic revival of a "blighted" neighborhood. (A related post on "blight" follows.) This issue has taken on new political significance, though, thanks to a recent, controversial split decision by the U.S. Supreme court, known as Kelo v. New London, CT (also see this commentary on the Kelo decision)

• two more websites on eminent domain law: www.eminentdomainlaw.net and UMoKC law school

In response to the political uproar following the Kelo decision, particularly from the right, several ballot initiatives are in the works in California, all of which seek to constrain government's ability to "take" private property for public purposes such as renewal/redevelopment. It will be interesting to see how the debate plays out. At first glance, this seems like a simple right (private property rights) vs. left (government-led redistribution) debate, but given the history of urban renewal in the USA--where taxpayer-supported projects have benefited big business more than low-income residents and small "mom and pop" businesses--the poltical allegiences could get rather twisted. Expect the mainstream Democrats to be strongly opposed to any ballot measures that seek to limit eminent-domain powers (or make them more expensive by requiring increased compensation), both on ideological grounds and because Democrats, no less than Republicans, rely on big-business (and big labor) donors, especially at the local level. Republicans, on the other hand, will be torn: the ideological flag carriers of Libertarian values will be strongly in support of the ballot measures, putting the Republican establishment (if such a thing still exists in California) in something of a pickle, between their grassroots supporters on one side and their corporate donors on the other. One thing seems for sure: the voters in the end will make little real difference to what actually happens. We'll all be confused by competing ballot measures regarding a legal issue that is no less convoluted than either energy or insurance regulation--two other big issues that voter propositions failed to accomplish much of anything, certainly not true reform. As a result, we can expect two more things: (1) voters will become even more cynical and disillusioned (if that's possible), and (2) the courts will be where all the real action is. While the voter-initiative idea is a hallmark of early-20th-century Progressive political reform, it's a concept that really has become more of a lawyers-and-judges full-employment program. Any of you still weighing possible career choices, it looks like property and eminent-domain law is a sure-fire growth industry. Happy Christma(Kwanza)kkah to you all! (You think the holiday season is confusing enough already, in only 3 or 4 more years, the Muslim Hajj celebrations--linked to Islam's 354-day lunar calendar--will fall during late December, too. Happy ChrismaKwanzaHajjiKkah?)