So much for the Kelo backlash

In the wake of the Supreme Court's decison in Kelo (in an opinon written by Justice Stevens), upholding a broad use of the eminent domain power, even by transferring property to other private persons for economic development, the main focus was on the popular reaction.  The "backlash" was suposedly swift and furious, and there was no shortage of stories emphasizing how the democratic process would swiftly curb the power that the Court said the Constitution permitted.  Those stories, as it turns out, were overblown.  But whatever happens to the myriad pending state bills expressing outrage at Kelo, it's becoming increasingly clear, given reports out of New Orleans, that we're on the verge of witnessing one of the most extensive uses of eminent domain in the nation's history for  -- you guessed it --economic development.  To be sure, even some of the dissenters, like Justice O'Connor, were willing to tolerate eminent domain in cases of blight, and Katrina sure left lots of blight in its wake.  But the pure position, and the one often defended by freepers and the Institute for Justice, not to mention Justice Thomas, is that eminent domain may never be used to transfer private property from one homeowner to the government in order to  subsidize "better" development.  It sure does not look like either the federal, state, or local governments deialking with Katrina's aftermath re sympathetic to that view when it comes to rebulding New Orleans.  Though we don't know exactly how things will play out yet, I'll be surprised if we don't see lots of exercises of the eminent domain power in New Orelans - to say nothing of the Gulf Coast more generaly -- that are on all fours with just the kind of taking of homes that so outraged the purists.  So, I'm curious, whose position looks better now, Stevens' or Thomas?  And shouldn't we at least acknowledge that the Court is perhaps not as out of step with our constitutional culture when it deviates from the seemingly plain terms of the constitutional text as some people love to assert?  Maybe it's time for a bit of a backlash against those so quick to predict backlashes?

Comments

[raj]

Regarding eminent domain, as a heads up, there have been recent reports of an eminent domain issue arising in Norwood, OH, a suburb of Cincinnati (actually it is completely surrounded by Cincinnati). The city of Norwood wants to condemn an entire neighborhood and turn it over to private developers for business development. Norwood city government claims that the neighborhood is "blighted" while that is highly unlikely.