Jacob Sullum

Indianapolis Mayor Bart Peterson wants to dispel "inaccuracies and stereotypes" about the use of eminent domain for economic development, a practice the U.S. Supreme Court upheld in last year's notorious Kelo v. New London decision. Last fall Peterson told a Senate subcommittee that when the government threatens to condemn people's property because it thinks someone else can make better use of it, "a majority of the time, most people agree to sell."
Interesting. Given the choice between selling and fighting an expensive legal battle they will almost certainly lose, after which they will have to give up their land anyway, probably on less advantageous terms, most people "agree" to sell.

"Cities use eminent domain most often as a negotiating tool with property owners," explained Peterson, who was speaking for the National League of Cities. "Just having the tool available makes it possible to negotiate with landowners." Sure it does -- in the same way just having a gun available makes it possible for a bank robber to negotiate with a teller.

As the Feb. 22 anniversary of the oral arguments in Kelo v. New London approaches, state legislatures across the country are considering bills to rein in the use of Peterson's "negotiating tool." They should not fall for the false assurances of local politicians, city planners, and developers -- a powerful triumvirate determined to block meaningful eminent domain reform.

The opponents of reform say Kelo v. New London did not really change the law, since the practice of forcibly transferring property from one private owner to another had been upheld by state and federal courts. But until Kelo v. New London, the U.S. Supreme Court had never said the Fifth Amendment, which restricts eminent domain to "public uses," allows local governments to take perfectly good homes and businesses (as opposed to "blighted" property) on behalf of private developers.

By agreeing that any private use expected to increase tax revenue and create jobs counts as a public use, the Court gave a green light to politicians who might otherwise have hesitated because of the lingering legal uncertainty. As Justice Sandra Day O'Connor put it in her dissent, "nothing is to prevent the State from replacing any Motel 6 with a Ritz-Carlton, any home with a shopping center, or any farm with a factory."

Jacob Sullum

Jacob Sullum is a senior editor at Reason magazine and a contributing columnist on Townhall.com.
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