(Cross-posted at Balkinization.)
I encourage anyone outraged by, or otherwise interested in, the Court’s recent Kelo decision to take a careful look at today’s testimony in the Senate Judiciary Committee by Columbia Law Professor Thomas Merrill, one of the participants in our group-blog on Kelo back in June. Merrill — by no stretch of the imagination an unadulterated opponent of takings claims or a knee-jerk defender of local planning — wrote an absolutely superlative amicus brief in Kelo that plainly had an impact on at least three of the Court’s opinions in that case (the majority, Kennedy’s concurrence, and even Thomas’s dissent, which attempts to deal with Merrill’s historical account).
In his testimony today, Merrill proposes some very thoughtful, and provocative, ideas about how to better protect homeowners through procedural and compensation-based statutory reform — and he explains why it’s a mistake to try to carve out particular categories of eminent domain for prohibition. Just as importantly, Merrill brings some much-needed perspective to bear on five unfortunate “myths” about Kelo that have taken hold in the public imagination, including:
Myth One: Kelo breaks new ground by authorizing the use of eminent domain solely for economic development.
Myth Two: Kelo authorizes condemnations where the only justification is a change in use of the property that will create new jobs or generate higher tax revenues.
Myth Three: Kelo dilutes the standard of review for determining whether a particular taking is for a public use.
Myth Four: The original understanding of the Takings Clause limits the use of eminent domain to cases of government ownership or public access.
Myth Five: Takings for economic development pose a particular threat to ‘discrete and insular minorities.’
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Many readers no doubt will disagree with some of what Prof. Merrill has to say. But I think most will agree that this is the most formidable, and most important, defense of Kelo yet available.
[UPDATE: The Institute for Justice forwarded to us today their recently issued White Paper on Kelo, which in essence disagrees with Professor Merrill’s analysis and prescriptions in just about every particular.]