BY TORY JACKSON
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Most people are well aware of the Supreme Court’s recent decision in Kelo v. New London, but many have not been lucky enough to spend an evening with the attorneys who helped litigate the case. Last Wednesday, the Federalist Society hosted a debate between Dana Berliner, attorney for Susette Kelo and co-plaintiffs, and Dan Krisch, who represented the New London Development Corporation. In front of a crowd of 80 students, the two lawyers gave their perspectives on the case and its ramifications for private property rights.
Krisch argued that the decision to allow economic development to qualify as “public use” was one of judicial restraint and that the case was primarily about the proper forum for deciding what constitutes a public use, and the majority rightly concluded that the legislature should have the discretion. He suggested that Justice O’Connor’s dissent exaggerates the impact of the decision, as the legislature is ultimately accountable to the voters if it abuses the eminent domain power. In addition, he posited that state and local governments are likely to use the power modestly because the expenditure of public funds that is required for eminent domain ensures careful deliberation.
Berliner disagreed, arguing that the decision leaves virtually no limit on the state’s power of eminent domain, so long as the legislature finds some purported economic benefit. As for judicial deference, Berliner contended that the Constitution itself is designed as the check on the eminent domain power and allowing the legislature virtually unlimited discretion negates the purpose of the Takings Clause. Moreover, because state and private money is often used, local governments will not be restrained by financial concerns. Indeed, even the popular check on elected officials is ineffective, as the number of private owners affected is relatively small.
Interestingly, the economic development plan in New London which gave rise to the case is now on hold, despite the blessing of the U.S. Supreme Court. The New London Development Corporation, which has authority over the plan, has suffered a vote of no confidence from the city council.
It is likely that proponents of the majority’s decision won the battle but will lose the war. While the Court ruled that economic development can be a public use, the states are in no way obligated to consider it as such. Thirty five states are currently considering legislation that would either limit the use of eminent domain for economic development or prohibit it all together. Congress is considering the issue as well. The Supreme Court may have spoken, but the debate is far from over.