Jewish World Review Feb 22, 2005/ 13 Adar I, 5765
The future of eminent domain... 10 minutes with lawyer Scott Bullock
Today Scott Bullock will be playing in the lawyer's equivalent of the Super Bowl. He'll get 30 minutes before the U.S. Supreme Court to argue the Institute for Justice's side of Kelo v. New London, one of the most important property rights cases in the past 50 years.
Bullock will try to persuade the high court to overturn a decision by the Connecticut Supreme Court that said it was OK for the city of New London to use eminent domain to take private property from homeowners and give it to a private developer because the new owner might produce greater "economic development" or generate more tax revenue for the city.
Bullock, who grew up in Greensburg and graduated from Pitt law school in 1991, is a senior attorney for IJ (ij.org), the libertarian public interest law firm that has waged a national campaign in courts and in the media against government eminent domain abuse.
I talked to Bullock by telephone from his office on Wednesday:
Q: What is the 60-second sound-bite description of Kelo v. New London?
A: Well the question in this case is whether the government can take your property because it feels like someone can make more productive use of your land than what you were making of it. What we're really talking about is, the government wants to take these people's homes for more tax revenue. New London is struggling economically. It feels that the new owners, the private businesses there, will create more tax revenue than the homeowners who live there now. This is an incredibly dangerous expansion of eminent domain authority. Every home, church or corner store would produce more tax revenue if it were a Costco, a shopping mall or private office building. So what they are really talking about here is an unlimited view of eminent domain. We are asking the court to impose some clear limits.
Q: This is one of thousands of cases where eminent domain powers have been given by government to private entities. Why has it become so prevalent?
A: Governments and private developers thought they could get away with it. Governments have been pushing the envelope on their use of eminent domain authority. First it was used traditionally for true public uses. People understand that the government occasionally has to use eminent domain for a road or a courthouse. Then it was used in so-called "blighted" neighborhoods neighborhoods that were very troubled that the government thought needed to be cleared away so that new things could happen. Now it's being done, like in New London, simply because the government wants more money.
Q: What do you have to prove to the justices?
A: We have to prove that this is not "a public use." The Constitution says very clearly that private property shall "not be taken for public use without just compensation."
The real question in this case is whether or not these takings are for a public use. The government's taking someone's property simply in the hope that the new owners will produce more tax revenue and that the city will gain from the trickle-down effects of private business development cannot be a public use. If it is, then there really are no limits on government's eminent domain power.
Q: You attracted an impressive list of people and important groups that support your position everyone from Jane Jacobs to the National Association of Homebuilders. Does that mean anything to the justices?
A: I think they will see that a broad array of people and organizations are concerned about these abuses. Most Americans are flabbergasted that their government would try to take someone's home to give it to a Home Depot. So I think a vast majority of people are against this. The problem is, people with a lot of influence and power like political figures and developers have joined forces to try to get these projects through.
Q: If you win this case, what's the best thing that can happen?
A: The best thing really is to get a clear precedent from the Supreme Court that there are limits to eminent domain power. Hopefully, it will send notice to governments throughout the country that have been abusing this power that there are limits on eminent domain authority and they can't do this in a way that violates people's constitutional rights.
Q: What do you think your chances are?
A: (laughs) You can't make odds with the Supreme Court, your really can't. I think we have very strong arguments. I think the law is clearly on our side.
Q: If you win, will eminent domain be put back in its proper place in the "cage" where the Framers wanted it?
A: It will go a long way toward doing that. Not all eminent domain issues will be solved by this case. There are very few silver bullets in the law where you can stamp out every problem and every abuse of rights through simply one case. There will still be eminent domain abuses after this case is through, if it is successful, and there will still be a lot of work to be done. But if we're victorious, this case will go a long way to restoring people's rights when faced with one of the most awesome powers that a government has at its disposal the ability to take away your home or your business or your land.
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JWR contributor Bill Steigerwald is an associate editor and columnist at the Pittsburgh Tribune-Review. Comment by clicking here.
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© 2005, Bill Steigerwald