Two dozen amicus briefs in eminent domain case

Twenty-five "friend of the court" briefs have been filed on behalf of the homeowners in Kelo v. New London, the eminent domain abuse case before the U. S. Supreme Court. You can read all the briefs here on the Institute for Justice website. Here's a press release with excerpts of several briefs. The list of amici bears out my earlier comment that eminent domain abuse makes strange bedfellows. First on the list is Jane Jacobs, author of the landmark book The Death and Life of Great American Cities. Others include the American Farm Bureau Association, AARP, NAACP, Becket Fund for Religious Liberty, former Milwaukee Mayor John Norquist, and a number of free-market policy thinktanks and property rights groups.

The most surprising entry is a brief jointly issued by the National Association of Home Builders and the National Association of Realtors. Here's an excerpt:

While NAHB include property owners and development interests, its primary goal is to preserve opportunities for housing. Affordable housing projects have proven to be helpful to support the widely-recognized public purpose of redevelopment of a blighted area or slum. Additionally, many NAHB members participate in non-blight redevelopment projects at the local level.

However, NAHB recognizes that housing will almost never afford a community with the economic development benefits that a commercial application will. If economic development as a sole justification for public use is decided using a rational basis test with deference to local legislative bodies, then the door is left open for local governments to abuse their eminent domain powers and take developable land from NAHB members as they could from any other property owner. Therefore, NAHB must adhere in this case to its long-standing objective to protect private property rights from abuses by local government.

Translation: Sometimes we like condemnation, because it gives us a chance to build new houses where there used to be old houses. The problem is that a house will never bring in as much tax revenue as commercial property occupying the same footprint. That may tempt government to take land we want to develop for homes and develop it instead for more lucrative commercial uses.

I have only skimmed the brief, but it seems to oppose banning public condemnation for private use altogether, advocating instead for heightened review and application of a "clear and convincing" evidence standard for cases where public condemnation will put property into private hands. This brief and several others make the case that deferring to the legislature regarding the definition of public use effectively disables the protections of the public use clause of the 5th Amendment.

Hat tip to Eminent Domain Watch, which also reports that the Bush Administration is considering filling a brief in support of the City of New London.