June 23, 2005
Kelo Comes Down (Way Down)
Posted by Christine Hurt

The Supreme Court has sided with New London, Connecticut and said that the city could take residential property by eminent domain, even though the public use cited is actually a use by a private developer.  (CNN story here).  I'm sort of surprised.

In my Ethics of Business seminar, we talked about Kelo, and my students argued that New London's plan and all similar plans would be defensible under utilitarian analysis.  But remember in college Phil 101 when you played the thought experiment about the human organ lottery?  At first glance, it looked like an organ lottery was entirely defensible under utilitarian analysis because more positive utils would be created by sacrificing one human to save four.  But, remember that living in a society where you could be legally killed at any moment would create a lot of negative utils, so the lottery actually isn't utilitarian.  Well, doesn't living in a society where your house can be taken away at any minute (for just compensation) create some negative utils that might counteract the private development utils?

Wait, did you just say to yourself, "yeah, but they wouldn't take my house.  Those aren't the kind of houses that they take."  Aha.

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Comments (2)

1. Posted by Wade Beltramo on June 23, 2005 @ 9:54 | Permalink

The utilitarian argument is specious and unfounded, and to the extent that the City of New London relied solely ont he utilitarian argument in justifying the project it wouldn't/shouldn't be a proper public purpose. But the majority isn't relying on a utilitarian justification in upholding the City's exercising of its eminent domain powers.


2. Posted by John Ryskamp on June 25, 2005 @ 12:47 | Permalink

The Kelo homeowners can petition the Court for a rehearing "on the merits" (Rule 44). The Court will grant rehearings to consider "historical evidence" bearing on the Framers' intent. Reid v. Covert, 352 U.S. 901(1956). The Kelo case is based on the Fifth Amendment. When James Madison presented it to Congress, he said that it "prevents every assumption of power in the legislative or executive." When he said "every," he meant a fact of the individual. A fact of the individual is a fact of human experience which does not change even when government seeks to destroy it. A fact of the individual is one in which government
1. seeks to eliminate the fact;
2. at best only succeeds or would, if allowed, only succeed, in eliminating incarnations of it;
3. in the process violates other rights;
4. brings to bear a disproportionate effort; and
5. does not consider alternatives which could achieve the goal.
Housing is such a fact:
1. New London seeks to destroy this housing;
2. New London itself has granted that these
homeowners will have to, and will, seek other ousing;
3. Association, speech and several other protected facts are sought to be destroyed by this eminent domain action;
4. the Kelo eminent domain action is part of a
nationwide, well thought-out plan between developers and politicians to use eminent domain to turn housing over to private developers;
5. the Kelo eminent domain action is not narrowly tailored to achieve a compelling government purpose.
If the Kelo homeowners present this argument to the Court, they will save their housing.
See also Ryskamp, John Henry, "Kelo v. New London: Deciding the First Case Under the New Bill of Rights" . http://ssrn.com/abstract=562521

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