The right went apoplectic June 23 over an issue that most of America knew nothing about. This wasn't one of the usual things that set conservatives off; it wasn't abortion, gay marriage or the Pledge of Allegiance. This was Kelo v. the City of New London, Connecticut, a case decided on a 5-4 split vote that you'll doubtless be hearing a lot more of as President Bush moves to replace Justice Sandra Day O'Connor.
Kelo was about property rights, specifically the circumstances under which local governments can force homeowners to sell their property known as "eminent domain" to make way for larger projects. Eminent domain isn't new. Until recently, however, states and cities have used it to clear land for schools, highways or other public-works projects that could only happen if the government buys up lots of property at one time.
Kelo broadened that. The court ruled that, as happened in New London, Conn., local governments could force homeowners to sell their land, which the government could then turn over to a private developer, all in the name of a revitalization that would produce larger tax revenues. Throughout the right-wing blogosphere, the reaction was remarkable. The more tame called the Supremes dictators and commies. There was even some talk of another civil war. One outraged developer began a campaign to have a local New Hampshire government forcibly buy Justice David Souter's house, via the powers afforded to it in the court's ruling, and turn it into hotel and landmark bemoaning America's lost freedom.
A week after the ruling, the U.S. House of Representatives passed a bill saying that if any local government used its newfound powers, the project it was seeking to build would be denied federal money. A Senate version quickly followed and drew co-sponsors including Democratic Florida Sen. Bill Nelson.
Look past the hyperbole, and there's genuine cause for concern. If government can take your property simply because it thinks someone else can do something better with it, what's left of the concept of private property? After all, what's being discussed isn't the necessary government machinations of schools and roads, but of making it easier for developers to make a buck, and for governments many of whom are struggling to make ends meet to get back in the black without raising taxes. It's not just libertarians and radical Republicans who should be concerned.
Under eminent domain law, if the government wants to take your property, it has to pay you a fair market rate. If Orange County wants to build a new mega-mall or tourist attraction, buying up land in Windermere would cost it a lot more money than buying in Pine Hills. So it won't be the rich who come under the government's gun.
With one fell swoop, governments can now replace poor, urban, mostly minority neighborhoods with something a little less poor and minority-occupied, if they're so inclined.
What follows is a conversation with Carol Saviak, executive director of the Orlando-based Coalition for Property Rights.
OW: You're obviously not a big fan of the Kelo decision. Give us an overview of why you think it's wrong, and what you think the long-term implications will be.
Saviak: Property rights are obviously one of the most foundational rights that we have as American citizens. Our founding fathers felt so strongly about the need for private property and the role of government in protecting private property that they added not just one but three amendments in the Bill of Rights: our Third, Fourth and Fifth amendments. Also, in the body of the Constitution, there are a number of protections they put in place in terms of contract enforcement and good-faith clauses that support private property rights.
I think the Kelo decision was very, very important because it played back to those actual constitutional foundings. We were discussing a very simple phrase in the Constitution, in the Fifth Amendment, that basically authorizes government's power and bestows government the limited power of eminent domain. Our founders recognized that there were legitimate times when the government might need to take property. However, given their experience with the kings and being students of history, they also recognized it was very important to limit that power, and therefore they limited it in two ways. One, it needed to be for public use, and also the Fifth Amendment requires just compensation. Those were two protections they specifically placed to give property owners a fair fight against government.
OW: On July 1, Justice O'Connor announced her resignation. How will Kelo figure in the fight to replace her?
Saviak: Absolutely, there has been a lot of talk about the need in the Bush administration of putting in a conservative justice. I think the Kelo decision will be the factor in making that a policy statement by the administration. The Kelo case, I think, represented a role the court had grown into, perhaps `one` that was contrary to the public interest. I think that there are not too many Americans that agreed with the Kelo decision, and while there has been a lot of talk about litmus tests in choosing a Supreme Court justice, I think the Kelo case will become one of the litmus tests for the upcoming selection of the next Supreme Court justice to fill O'Connor's vacancy and any other vacancies. The Kelo case and the way the justices fell out really reflected each justice's individual opinion on the role of government. Either you believe that the role of government is more powerful and all-knowing and better than that of the citizens, or you believe that it's the people's freedoms that are most important.
OW: You worked as an aide to former Orange County commissioner Ted Edwards. From your perspective, how, if at all, do you think the county will utilize this decision?
Saviak: I think it basically empowers any government, whether it's Orange County or the city of Orlando, the city of Winter Park, any of the local cities, to move forward with redevelopment projects that they might not have considered otherwise for fear of public reprisal. This gives them the legal defense they need to move forward. However, I don't believe Orange County has ever approved any taking of that nature. Richard Crotty's very politically savvy. I don't believe, based on the public outcry `over` Kelo, he's going to be championing any redevelopments that involve condemnation.
OW: Locally, how do you think it will factor into cities' redevelopment efforts?
Saviak: I think that given Florida's age, a lot of the smaller cities that want to do downtown redevelopments will want to do projects that involve eminent domain takings. … For instance, Maitland. Maitland had a desire of their elected officials to redevelop their downtown. Fortunately, for the most part, that was accomplished through voluntary sales. ... `If the sales weren't voluntary`, the Kelo case gives them another layer of protection from a legal standpoint.
OW: Kelo basically leaves the question of eminent domain powers to the states. What sort of movement on this issue do you expect in Tallahassee next year?
Saviak: You're correct that, in Justice Kennedy's separate concurrence with the majority opinion, he specifically stated that there was nothing in the majority opinion to preclude states from adopting stricter policy. Already, once this ruling came down, I know that our organization began working with our state's elected leadership to begin taking a look at statutory reforms. I think it will be a very popular initiative that's taken up this upcoming session. Gov. Bush has already announced verbal support for legislative reform. Speaker Allen Bense, I think, trumped everybody by sending out a press release early and announced his intent to place a committee especially devoted to this topic. However, I believe the citizens in groups like the Coalition for Property Rights intend to ensure that the legislature understands that this issue will not go away.
OW: From your perspective, what upside, if any, is there to the Kelo decision?
Saviak: With every dark cloud there's a silver lining. And I think that people are now aware of how far government has been creeping into their homes and lives. Groups like ours for a long time have been considered Chicken Littles. It really takes a case like this to bring it home, if you'll forgive the pun, to every American that the balance of power is slipping and they need to take action to get things back under control.