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You are here: Home / Politics / Domestic Politics / Kelo “Backlash”

Kelo “Backlash”

by John Cole|  September 7, 20055:13 pm| 36 Comments

This post is in: Domestic Politics, Politics

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In the comments to the ‘Kelo’ story, IOCASTE writes:

I wish people would stop calling this a “backlash.” The Kelo decision was premised on the notion that these are decisions for the legislature to make—not the courts. Every time a local legislature acts to limit the power of eminent domain, it is doing exactly what the Kelo majority envisioned.

And if you look around the blogosphere, the word backlash is almost automatically attached to every appearance of the Kelo case.

Thoughts?

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36Comments

  1. 1.

    Steve

    September 7, 2005 at 5:24 pm

    Let us assume Roe v. Wade had been decided the opposite way, and the Supreme Court had said, “The Constitution does not provide a right to an abortion.”

    And let us assume that at this point, a number of states followed the ruling and enacted restrictions on abortion.

    Would anyone call this a “backlash” against the Supreme Court decision?

    The point is that Kelo did not break new ground. It did not allow the states to do anything they have not been doing for years. It was simply a wake-up call to people that hey, if you don’t like this eminent domain thing, it’s high time you went to your state legislature and did something about it.

    No one has ever, since the founding of our nation, suggested that states do not have the power to restrict eminent domain if they want to. Indeed, the only reason eminent domain exists at all is because states grant themselves the power in the first place.

  2. 2.

    Shinobi

    September 7, 2005 at 5:29 pm

    Well it sound kindof better than “legislation limting Kelo” or “Kelo ripple effect” or “People are pissed and doing things about Kelo” Soon it will ahve its own entry in Websters:

    Kelo Backlash n. (Keee Loh Bac Lash)- any legislation, judicial decision, or political activism related in any way to emminent domain.

  3. 3.

    Vladi G

    September 7, 2005 at 5:42 pm

    Steve and Shinobi are both right. This isn’t really truly a backlash, but if people keep using the word (incorrectly), then it will just become the common parlance, to the extent that it already hasn’t.

  4. 4.

    D

    September 7, 2005 at 6:07 pm

    Uh, “IOCASTE” is thinking outside the box and using some perspective? Those are two quantities that seem to be in very short supply of late…

  5. 5.

    Anderson

    September 7, 2005 at 6:11 pm

    “Backlash” is not exactly a term of art.

    “A strong & adverse reaction by a large number of people, esp. to a social or political development.”

    “An antagonistic reaction to an earlier action.”

    Yep, it’s a backlash.

  6. 6.

    Steven

    September 7, 2005 at 6:18 pm

    Backlash is the wrong word. “Reaction” is probably right. I never understood why conservatives were so upset by Kelo. The Supremes said that under the Constitution this is the prerogative of state government. Now that the light’s been shone on all the cozy development deals that are being hatched at the local level, there is an adverse reaction to that practice, not to the Kelo decision itself.

  7. 7.

    Steve

    September 7, 2005 at 6:20 pm

    But a backlash against what? From where I sit, the backlash is against state-sanctioned abuses of the eminent domain power. All Kelo did is reaffirm the 50-year old precedent saying that if eminent domain is going to be restricted, it’s going to be by the states.

    The restrictions that are being put in place now could have been put in place before Kelo, and would have had exactly the same effect, so how can they be a backlash against Kelo? As I said, Kelo is not the root cause, it was just the wake-up call.

  8. 8.

    Anderson

    September 7, 2005 at 6:26 pm

    Backlash is the wrong word.

    That’s interesting as evidence of how the word’s perceived, but have you got a dictionary with a different definition? Because it’s always possible that the dictionary is right.

    (No snark, I’m an English M.A. and I can cheerfully discuss whether dictionaries enshrine the language or follow it.)

    Anybody got an O.E.D. handy?

  9. 9.

    Doug

    September 7, 2005 at 6:29 pm

    I’d say the backlash is to the eminent domain laws passed by the various legislatures. It was triggered by the visibility given to the issue by Kelo.

    I guess it depends on what you think the objectionable act was: 1. States allowing eminent domain to benefit private developers; or 2. The federal court refusing to limit the powers of the state.

  10. 10.

    Steven

    September 7, 2005 at 6:32 pm

    I think Doug’s got it right. The backlash is to this use of the eminent domain power, not to the Supreme Court’s decision.

  11. 11.

    Shygetz

    September 7, 2005 at 6:33 pm

    I guess it depends on what you think the objectionable act was: 1. States allowing eminent domain to benefit private developers; or 2. The federal court refusing to limit the powers of the state.

    I look at it as 3. The federal court refusing to uphold the rights of the individual. Item 2 requires that you recognize that the state posessed the power to exercise eminent domain not for public use in the first place (since we are arguing semantics here).

  12. 12.

    M. Scott Eiland

    September 7, 2005 at 6:33 pm

    I suppose you could call it a reaction to the fact that–after years of sticking their nose into state and federal legislative decisions with no apologies–it was *this* issue–local government stealing private landowners blind– where the federal courts shrugged and said “Nothing to see here–move on.” If it is a backlash, it is a backlash against the heightened expectations that the federal courts can and will intervene in all cases of perceived injustice, rather than that the Supremes were doing anything other than adding an exclamation point to the disgraceful history of how the courts in this nation have dealt with the Just Compensation Clause. It is a pretty petard that the Warren, Burger, and Rehnquist Courts have forged–and the Roberts Court may find itself hoisted on it.

  13. 13.

    TallDave

    September 7, 2005 at 6:39 pm

    Well, the 4th Amendment is no longer operational. So they had to do something.

  14. 14.

    Steve

    September 7, 2005 at 6:40 pm

    For the record, the point is a minor one, and the only reason I and a few brave others have dared to try and set the record straight is because the idea of a “backlash” plays into the ongoing demonization of the judiciary by the Right. Indeed, the majority in Kelo did exactly what conservatives wish the Court would do in many other cases; let the people decide, at the state and local level, what laws to pass.

    In the real world, what’s going on is that officials at the state and local level, both Republicans and Democrats, have gotten away with abuses of eminent domain for years, to help out their developer friends at the expense of largely underrepresented groups of landowners. And then when the public outcry following the Kelo decision put these practices in the spotlight, everyone rushed to point the finger at the Supreme Court – because no one stands to gain by pointing out that it’s the states which have permitted these practices for far too long.

  15. 15.

    Steve

    September 7, 2005 at 6:40 pm

    I also do not understand how a petard can be “pretty.”

  16. 16.

    TallDave

    September 7, 2005 at 6:44 pm

    Steve,

    A backlash against a reverse Roe v Wade would be to lessen restrictions on abortion. A backlash goes the opposite way.

    Roe is one of the worst decisions in modern judicial history. I agree women should have access to abortion, and certainly in the first trimester, but to base that on a nonexistent Constitutional right is just ridiculous. We have a legislature for a reason: to pass laws regarding these issues. The courts should interpret the law, not be used as a cudgel to advance a social agenda.

  17. 17.

    TallDave

    September 7, 2005 at 6:51 pm

    And if you disagree with the above, just wait until a conservative court says fetuses are people right from conception with all the rights thereto and therefore all abortion is murder, and thus outlaws abortion all throughout our noble land. Then we’ll hear shrieks of how the court has overstepped its bounds, and what will theconservatives say? “Sorry, Roe set the precedent of judicial authority in this matter.”

  18. 18.

    John S.

    September 7, 2005 at 6:53 pm

    The courts should interpret the law, not be used as a cudgel to advance a social agenda.

    I agree wholeheartedly.

    Of course, that is given the caveat that this statement applies to any kind of social agenda – whether liberal or conservative.

    But I’m sure that’s what you had in mind all along, Dave.

  19. 19.

    gcauthon

    September 7, 2005 at 7:04 pm

    Steven wrote: The Supremes said that under the Constitution this is the prerogative of state government.

    Nobody said it was a backlash against the US supreme court. But there is a backlash. This is a state issue and that’s why the various states are rushing to clarify their position on eminent domain so that some insane mayor can’t go on a free-for-all land grab.

  20. 20.

    DougJ

    September 7, 2005 at 7:33 pm

    Colie, you’re doing a heck of a job.

  21. 21.

    Hunter McDaniel

    September 7, 2005 at 7:38 pm

    Many people, myself included, expected that the Court would give SOME meaning to the term “public use”. They didn’t, and that’s what caused the reaction.

  22. 22.

    Steve S

    September 7, 2005 at 7:46 pm

    So it took you 2 months to realize that in affirming the decision the court was basically saying, “The Constitution clearly says ‘nor shall private property be taken for public use, without just compensation’, and in this particular case just compensation was given and we are leaving it up to the legislature to determine the definition of public use. Thank you, come again.”?

    Congratulations are in order, I guess. It took you two months to catch up with the liberal blogosphere…

    http://www.dailykos.com/story/2005/6/25/201045/439

  23. 23.

    Steve S

    September 7, 2005 at 7:55 pm

    This is not applicable to Roe v. Wade in the same way, despite some the lame arguments of others in this thread.

    The Constitution clearly gives the Govt authorization to take land for public use, and provide just compensation.

    The Constitution says nothing about giving Congress the authority to legislate abortion. The 10th amendment also specifically states that just because the bill of rights doesn’t list them, doesn’t mean that we as citizens don’t have those rights. Such as the Right to Privacy, aka. the right to tell Busy Bodies to Fuck Off and mind their own Fucking Business.

    In fact the only rights that citizens do not enjoy, are those specifically authorized to Congress to restrict… for example, the right to own private property is limited in that Congress can take it to public use with compensation.

    If you were a libertarian you’d understand this.

  24. 24.

    Gary Farber

    September 7, 2005 at 8:11 pm

    When a reaction happens in response to something some people do, it’s reasonably described as a “backlash,” without attention to the point of whether the initiators intended the reaction or not, I’d say.

  25. 25.

    Otto Man

    September 7, 2005 at 8:14 pm

    Are the folks here who were outraged over the Kelo decision also outraged over the decision to force people from their homes in New Orleans? Both involve government violations of property rights on grounds of the greater good, right?

    I’m not trying to be snarky. Genuinely curious.

  26. 26.

    Steve

    September 7, 2005 at 8:30 pm

    You can be in favor of letting the government exercise power in an emergency without agreeing that the need for “economic development” constitutes an emergency.

  27. 27.

    Kathy K

    September 7, 2005 at 8:34 pm

    Otto, yes – as a matter of fact – I’m a bit disgusted by the mandatory evacuation. The government should simply demand that those wanting to stay sign a release form stating that they understand the dangers of living in a toxic waste dump, and won’t sue anyone or demand government compensation over consequences of their choice. (Those ‘personal injury’ lawyers are probably the main reason those people are being dragged out of their homes.)

    And I didn’t like Kelo either – but I’m not the ‘outraged’ type. I was merely disgusted.

  28. 28.

    Stormy70

    September 7, 2005 at 8:43 pm

    I think the legislatures of this country need to quit punting it to the courts to decide. Upon further reflection, I think this decision was a smart one by the Supreme Court. It may have sent a message.

  29. 29.

    Otto Man

    September 7, 2005 at 9:04 pm

    Thanks for the replies. I thought Kelo was a bad decision myself, but I sometimes have trouble seeing where libertarians draw the line.

    I read somewhere else that just as there are no atheists in foxholes, maybe there aren’t any libertarians in New Orleans. Maybe that’s so.

  30. 30.

    gcauthon

    September 7, 2005 at 11:14 pm

    Otto Man, your definition of the “greater good” is debatable. What makes you think that the Kelo decision contributes to the welfare of the citizens that are actually making a sacrifice? The CEO of Pfizer will get rich, the lucky individuals that they decide to hire will probably not get rich but will have jobs and whichever tax haven they store their riches in will also reap some financial rewards. What does this have to do with New London, CT? You know, the town that basically confiscated 115 houses so that Pfizer could build their industrial park? Why were no contracts signed? Why couldn’t they sign a contract that says they agree to hire X number of workers from New London and pay a minimum of Y dollars in taxes or else face steep penalties? If their argument is that these things would “obviously” occur anyway, then why not put them down on paper?

  31. 31.

    Steve

    September 7, 2005 at 11:46 pm

    There are a lot of Kelo myths out there. One is the idea that the land in question was being used for a Pfizer development; in fact, it was for shopping, housing, parking, etc. that complemented an existing Pfizer facility.

  32. 32.

    gcauthon

    September 8, 2005 at 1:15 am

    Copied/pasted directly from the complaint.

    In February, 1998, [Pfizer, Inc. (Pfizer)] announced that it was developing a global research facility on the . . . New London Mills site which is adjacent to the Fort Trumbull
    area. In April, 1998, the New London city council gave initial approval to prepare a development plan for the Fort Trumbull area and the [development corporation] began holding informal neighborhood meetings regarding the [development plan] process. In May, 1998, the city council authorized [the development corporation] to proceed under chapters 130, 132 and/or 588 (l) of the [General] Statutes.

  33. 33.

    pmm

    September 8, 2005 at 9:49 am

    I haven’t the time to dig up the links, so I’m going from memory, but a better analogy than Roe would be Lopez, wherein the Court threw out a federal gun control law that was justified under the Commerce Clause. The majority noted that, were the tenuous impact on interstate commerce to be considered valid, they couldn’t see any limits on federal lawmaking. Only in the case of Kelo, they upheld an interpretation of “public use” that was so broad as to mean that eminent domain has no limits according to the constitution. That’s where the ‘backlash’ concept comes from. Although if you consider a backlash as only being against something new, then perhaps ‘reaction’ would be better.

  34. 34.

    Shinobi

    September 8, 2005 at 9:55 am

    The reason the high courts get punted too so often is because they don’t have to worry about getting re-elected, so they can say unpopular things without fear or much “backlash” since that’s the word we’re examining. Whereas if a senator were to vote very publicly for legislation that did what the Kelo decision did, well he would certainly suffer some backlash. But the people can do nothing against the courts but encourage legislation in the opposite direction, and fortunately no one will lose their job over the decision. (in this case at least)

    So under our current system the courts will always be a place where social agenda is advanced, especially when that agenda goes against the religious folk. As it seems there are no legislators who can stand up to them.

    And it is good that the courts are set up that way so that the minorities can be protected from the tyranny of the majority or something. So really, we want activist judges, or nothing will ever change.

    That’s my theory anyway.

  35. 35.

    Otto Man

    September 8, 2005 at 1:09 pm

    Otto Man, your definition of the “greater good” is debatable. What makes you think that the Kelo decision contributes to the welfare of the citizens that are actually making a sacrifice?

    Sorry, I should’ve put “greater good” in quotes. And as my later post makes clear, I don’t think Kelo promoted the greater good at all.

  36. 36.

    goonie bird

    September 8, 2005 at 4:03 pm

    This kelo decesion has provided a backlash against irresponible judges what we need to do is remove these irresponible judges from the bench

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