« Why the outrage? | Main | O'Connor »
Saturday, June 25, 2005
why the outrage
Kelo | Posted by Eric Claeys at 02:58 PM
Marty raises a lot of good questions. I'm going to split my answers up. Let me take a whack at his question about why Kelo's so controversial. I think the following factors are important parts of a complete explanation. Kelo has caught the public's attention because the facts of the case highlight that there is a sharp distinction between the morality of everyday voters on one hand and of urban planners and land-use lawyers on the other. (Not to judge one or the other morality -- just to point out that, as a descriptive matter, there is a difference.)
Of course, that's been true since at least the 1950s (Berman) and probably since the 1920s, when the anti-blight movement first got going. There are at least 2 reasons why the public is much more primed to notice now. First, in 1950, it was not the case that most people on the street had a friend or relative whom a developer had tried to pressure out of her house. Berman and similar cases encouraged local governments and developers to get more aggressive; after 50 years, those cases' consequences now hit a lot of people where they live.
Second, in 1950, there were not well-organized conservative/libertarian grass-roots groups, impact-litigation groups, or alternative media. But conservatives & libertarians figured out how to organize the grass-roots in the 1970s and 1980s, and the repeal of the fairness doctrine and the rise of the internet created a lot of conserv-atarian media outlets in the 1990s. So now, when a case like Kelo comes down now, these media and policy entrepreneurs will make sure the public knows and run with the outrage.
I am sorry that Suzette Kelo lost, but I am not that sorry for IJ. By losing by the barest of 5-4 margins, IJ lost in the most lucrative and energizing way. Its staff will know what to do next.
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