Late Thoughts on Kelo

LATE THOUGHTS ON KELO….So how about that Kelo decision, eh? Everybody but me seems to have commented on it. Why the silence?

I guess I’ve just had a hard time getting excited about it. In fact, it mostly seems like yet another example of how politics is increasingly being played out on the margins these days. After all, eminent domain itself wasn’t at stake: the ability of the government to condemn land for its own use was established in the Bill of Rights. Nor was the ability of government to condemn land and turn it over to private developers at stake. Local redevelopment agencies have been allowed to condemn “blighted” land for urban renewal purposes for decades, and Kelo wouldn’t have overturned that.

What’s more, the definition of “blighted” has been pretty elastic for a long time. In Los Angeles, the poor-but-not-especially-blighted Chavez Ravine was condemned in the early 50s for a public housing project, but eventually the land was turned over to Walter O’Malley in order to build the privately owned Dodger Stadium. Similarly, in the early 90s, the Texas legislature created a special agency for the sole purpose of condemning land in Arlington so that the city could build a sparkling new stadium for George Bush’s Texas Rangers. The Rangers were given control over the stadium and its surroundings plus an option to buy it later at a sweetheart price.

In other words, local governments have been condemning just about anything they want for a long time, and far from heralding the Apocalypse, the results have been pretty mixed. What’s more, although in theory Kelo might have halted condemnations like these if it had been decided the other way, I have a feeling that in practice it would have simply required local governments to get ever craftier about their definition of “blight.” Now they don’t have to worry so much about that.

Still, that might not have been such a bad thing. We often allow ourselves to be influenced by local events more than by abstract legal arguments, and in my case the premier local event in the area of eminent domain was a longrunning battle by the city of Cypress to condemn land purchased by the Cottonwood Church in order to turn it over to CostCo for construction of a superstore. I’ll spare you the details, but basically the land in question wasn’t blighted by any reasonable definition and the city had shown no interest in it for decades ? but as soon as Cottonwood purchased it they suddenly decided it was critical to their municipal future. They were also pretty honest about why: they wanted to maximize tax revenues, and the church complex pretty much sucked on that score. A CostCo store would have been far more lucrative.

Of course, the fact that it was a church being shafted made the whole thing a lot sexier than your ordinary eminent domain case, and added to that was “flood the zone” coverage from the Register, Orange County’s famously libertarian newspaper (example here). Eventually a federal judge told Cypress to back down ? the decision was on narrow grounds related to religious freedom ? and the city worked out a land swap with Cottonwood that left everyone satisfied.

Still, it was a pretty grubby maneuver, and left me thinking that it wouldn’t do any harm to let cities know that their power of eminent domain needs to be based on at least slightly more defensible grounds than “we need more tax revenue.” If it had gone the other way, it’s possible that Kelo might have accomplished that ? although in practice I suspect it wouldn’t have been much more than a shot across the bow.

Whether that warning shot would have been a good idea, I can’t say, although obviously I’m sympathetic to the idea. Either way, though, the fact that an awful lot of people are getting so worked up over a decision that probably would have had a fairly small practical effect no matter how it had been decided, says a lot about modern political discourse.