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Kelo, Eminent Domain, & the Lust for Land

By Heather Wilhelm

bulldozed.gifBulldozed: "Kelo," Eminent Domain, and the American Lust for Land
By Carla T. Main
Encounter Books, October 2007

Since the dawn of humanity, there have been a few classic, sure-fire incentives to get people to do all sorts of crazy things. Love is one of them. Money is another. And if recent history is any indication, another age-old ingredient for unhinged behavior will loom especially large in the American psyche and public debate for years to come.

The ingredient in question, of course, is land.

Ever since the Supreme Court's infamous Kelo ruling in June of 2005, America has struggled with the case's grim implications: the seizure of private property, often from people who can't afford to fight back. For those who have followed the pre- and post-Kelo saga of eminent domain in the United States, two questions often surface. First: "How the heck did we get to this point?" And second, usually after reading about some little old lady getting kicked to the curb: "Who are these people? Who would do this sort of thing?"

As Carla Main's "Bulldozed" reveals, "these people" are often simply normal people: amped-up bureaucrats in communities gone mad. The book offers a clear-eyed assessment of eminent domain in America, focusing on the insanity that recently engulfed a Texas town over a strip of waterfront land. "Bulldozed" also addresses, through history and case law, how we got to this point - and, now that the bulldozer's out of the proverbial barn, where we go from here.

Situated on a "grimy old industrial river" and nestled next to one of the world's largest chemical plants, Freeport, Texas hardly had "glamorous marina town" written all over it. But that's exactly what Freeport's politicians saw when they cooked up a plan that would eventually tear the town apart. The ingredients were simple but incendiary: a town in dire straits; a family business on the river; a wealthy, marina-building oil scion; and a city council desperately attached to a harebrained scheme.

The Freeport story, played out from 2003-2006, verges on the tragicomic (picture a town with basic infrastructure woes lending $6 million, almost half of their annual budget, to a wealthy young man in a risky deal to build a marina close to a giant Dow chemical plant) but, as Main writes, the council pursued it with "religious zeal." Only one thing stood in their way: the Gore family, whose shrimp business sat next to the marina site. The Gores were pillars of the community, provided dozens of jobs, paid substantial taxes. They were also, however, in the way. They would have to go.

"Bulldozed" outlines in withering detail how, as the Kelo case played out in the Supreme Court, niceties quickly dissolved in Freeport. While the Gores attempted to reason with the city council, the book records, the city council proceeded to go ballistic, pulling stunts that would make Boss Hogg proud: sneaky legal moves, personal attacks on dissenters, taxpayer-funded PR campaigns, subtle assaults on free speech - all so that they can have the privilege of dunking the taxpayers into a questionable marina deal.

If it seems too bizarre to be true, it's happened in more places than Freeport. Main explains it with "the ugly duckling syndrome," in which a town with low self-esteem has a dream of beautification--the equivalent, say, of going to the prom with the homecoming king. The ugly duckling proceeds to lose its mind, alienating friends, racking up an astounding credit card debt, and bending over backwards to woo its hunky suitor. Then, after a whirl of alternating anxiety, euphoria, and chaos, the homecoming king either cancels or ditches Ugly at the dance.

The driving forces behind today's eminent domain horror stories, of course, are often darker than low self-esteem. Common culprits are greed, power, and ruthless ambition. The trail to today's mess, however, began as many messes do: with idealism run awry. "Bulldozed" traces the long and winding road of landmark property rights cases from the days of Daniel Webster, when erosions of property rights were intended to protect "the little guy," to 1954's Berman v. Parker, which cleared the way for hundreds of thousands of "little guys" to be displaced "for the good of the community." Kelo, of course, took such logic to the frightening next level, where no one, as Sandra Day O'Connor pointed out, is safe.

One would think that the spectacular failures of past government adventures in real estate - Main outlines fiascos in Poletown, Michigan, the folly of urban renewal, and other multi-million-dollar mishaps - would make everyone, including liberals on the Supreme Court, a bit gun-shy. Nope. It is especially interesting, as Main notes, that the five judges in the Kelo decision are known for a philosophy advertised for years as "standing up for the little guy." The Kelo decision, along with other current policy debates, makes it clear that this liberal philosophy has evolved, all too often, into "government knows best."

In the wake of Kelo, a backlash swept the country, with dozens of states passing various reforms. As to their impact, Main remains skeptical. With a few exceptions, most of the measures leave room for "blight" loopholes, which, as Main notes, "is in the eye of the beholder." The most obvious consequence is that future victims of eminent domain abuse, like many present victims, will likely be poor. And, unlike the Gores, whose business was soaked of $450,000 in legal fees, most will be unable to fight back.

"The question this book sets out to answer," Main writes in her introduction, "is what price American society pays for economic development takings." Economist Hernando de Soto, who made his name exploring the West's secret to success, might name one price: the erosion of property rights, a key ingredient of prosperity and stability. The Gore family, meanwhile, might say that the price is peace of mind. Other eminent domain victims might say it's nothing less than the American Dream. America's struggle over property rights has been a long, convoluted, and sometimes contradictory path. As for where we go after Kelo, Main argues, only time will tell.

Heather Wilhelm is a writer and communications consultant based in Chicago.

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