Maybe Raich Lets Congress Fix Kelo

I wrote before that I thought the definition of interstate commerce in Raich was crazy, but maybe there is an upside.  Under this ridiculously broad definition of interstate commerce (where growing marijuana in your backyard for persona consumption was called interstate commerce), couldn't a real estate development with tenants who are multi-state corporations also qualify?

To this end, Eugene Volokh writes that Congress is already considering legislation to control eminent domain for private development in the aftermath of Kelo:

Sen. Cornyn (R-TX) Proposes Limits on Eminent Domain:

Sen. Cornyn is introducing a federal bill (S. 1313, "The Protection of Homes, Small Businesses, and Private Property Act of 2005") that would bar "economic development" takings:

(a) . . .  The power of eminent domain shall be available only for public use.

(b) . . .  In this Act, the term "public use" shall not be construed to include economic development.

(c) . . . This act shall apply to (1) all exercises of eminent
domain power by the Federal Government; and (2) all exercises of
eminent domain power by State and local government through the use of
Federal funds.

Part C is in there to help it pass constitutional muster, but maybe Raich makes this unnecessary.

PS- I am mostly kidding here - I in no way want to condone Raich.


  1. honestpartisan:

    Your (modest?) proposal highlights the salutary effect of judicial restraint (that is, judges declining to meddle in legislative determinations, as they did in Kelo and Raich). If this exercise of eminent domain is bad -- and I think it is, although not unconstitutional -- deal with it legislatively and democratically.

  2. Michael H.:

    Hi Coyote
    I think the Cornyn bill is just more nonsense. This needs to be addressed at the state and local level and it will need the participation of voters. This is why your post on "I don't necessarily treasure the right to vote": missed the mark. Our private property rights and our other rights are not protected by the U.S. Constitution or any other documents; courts can let Congress ignore these. Our rights are protected by our ability to vote and cast out those who would threaten our rights. I wrote about that here:

  3. MaxedOutMama:

    Hmmmm. I think a short contemplation of US history will prove that we really do need the rights reserved to the people in the Constitution, due to our otherwise irritating habit of voting and pitching out politicians who displease us.

    Nonetheless, this strikes me as poetic justice. I will read the bill and then decide whether to email my senators and representatives asking them to support it. I am not crazy about the idea that Congress has the right to regulate the state governments in this fashion, but you are correct - the very nuttiness of these two decision does seem to prove that Congress could pass laws controlling these actions.

  4. Ann:

    This is pretty funny:

    A builder wants to use the new Kelo rulling to turn Justice Souter's house into a hotel. The claim is it would bring a lot of revenue to the city. It will be interesting to see how Justice Souter responds.