October 09, 2005
Kelo and Katrina
Reading this Washington Post story about eminent domain in the reconstruction of New Orleans, I was confused by this claim:
Eminent domain, to clear blighted and flood-devastated areas, will no doubt be involved. Had Kelo turned out the other way, the plan to rebuild New Orleans would certainly have taken a different tack.
For better or worse, the attorneys for Ms.. Kelo as well as three of the four dissenters, seemed perfectly willing to accept the rule that elimination of blight (and a fortiori the elimination of flood-devastated areas, arguably a nuisance for takings-clause purposes) would be permissible under the Public Use clause. This means that "had Kelo turned out the other way," reclamation of blighted and flood-devastated areas would have faced no obstacle whatsoever.
Now it is probably true that there exist plenty of folks who would like to eliminate the blight exception too, but that wasn't really at stake in Kelo for 8 of the 9 members of the Court.
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