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Much Ado About Nothing: Kelo v. City of New London, Sweet Home v. Babbitt, and Other Tales from the Supreme Court

80 Pages Posted: 6 Apr 2006  

Marcilynn A. Burke

University of Houston Law Center

Date Written: April 1, 2006

Abstract

This Article traces and analyzes an emerging trend in constitutional and land use law and the rhetoric that embodies it. The Article examines the potential impacts of rhetoric that the Supreme Court's ruling Kelo v. City of New London has fanned into a flame. The rhetoric paints a picture of imbalance, pitting small landowners against inept government officials who are taking private property. And purveyors of this rhetoric contend that activist judges are simply rubber stamping this land grab. A reform movement has emerged to solve the problems that the stories portray. Yet, there is a palpable disconnect between the rhetoric plied in the nation's media and the reality of eminent domain. This Article demonstrates that the rhetoric and suggested reform are best viewed in the context of what has been dubbed the Constitution in Exile movement. This movement seeks to restore what it considers the original meaning of many constitutional provisions including public use. Exposing and challenging that movement, the Article contends that the movement merely seeks particular ideological outcomes that it masquerades as a rigorous interpretative theory.

Keywords: eminent domain, property, endangered species act, kelo, rhetoric, constitution in exile, lost constitution

JEL Classification: K11, K32, R11, R14

Suggested Citation

Burke, Marcilynn A., Much Ado About Nothing: Kelo v. City of New London, Sweet Home v. Babbitt, and Other Tales from the Supreme Court (April 1, 2006). U of Houston Law Center Working Paper No. 2006-W-02. Available at SSRN: https://ssrn.com/abstract=895008 or http://dx.doi.org/10.2139/ssrn.895008

Marcilynn A. Burke (Contact Author)

University of Houston Law Center ( email )

4604 Calhoun Road
Houston, TX 77204-6060
United States

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