Politics of Today's Kelo Decision
I am surprised to see so little if any comment today on this site regarding the Supreme Court decision in Kelo, the Connecticutt taking case. I think this is a truly catastrophic decision, but the most surprising part of it was that the justices who sided with big business were the very one's I would have expected to defend the defenseless. How Ginsburg, Stevens et al could allow the law of condemnation to evolve to the point where a public purpose is served if the tax base is increased is quite frankly beyond me.
I submit that this decision will go a long way to grease the skids for Congress to appoint extremely conservative justices to the court, and that people, such as myself, who might have objected loudly and vocally to such appointments will think twice.
Given the fact that the GOP has been taken over by the WINGNUTS, and the Democrats have lost almost all of their spine as well as their ability to stir up some outrage at the direction the country is going in, perhaps a (new) Libertarian third party would be in order.
I feel exactly the same way. I don't know what's going on anymore. i would have bet my paycheck that this decision would go the other way.
June 23, 2005 4:46 PM | Reply | Permalink
I feel the same way too. My own blog has a typo in the headline, so people might ignore it, but... I think this is a great opportunity for leftists to speak out for private property rights. See... it isn't the government, necessarily, that's going to take your property, it's the business interests who run the government. And the court is okay with that, it seems.
June 23, 2005 4:57 PM | Reply | Permalink
I think it's more of an oppurtunity for libertarians and Republicans to claim once again that "Libruls" are for Big Spooky Governemnt.
I hate to say it, and I know this isn't a popular position, but property in a city is never completly private because it's not isolated, it all effects each other. Living in a city isto a small degree entering into a collective arrangement.
For example, many cities have ordinances for neighborhood upkeep becasue one unmaintained building hurts everyone.
So, it may be 99.9% private, but in exceptional cases the city does have the right to think of the overall neighborhood and city health over the interest of an individual.
It's an issue that can be easilly abused, and the little old lady vs the big corporation may sound like abuse, and maybe it is. But I think people should at least consider all the possible good that might be done for the city overall.
Also, I don;t think it's necessarially unfair. When someon buys into a city, they also enter into certain obligations to the city.
One could make the Libertarian argument that nobody owes anyone anything....
Anyways, that's my $.02
June 23, 2005 7:11 PM | Reply | Permalink
I'm very disturbed by this one too. I think the conservative wing of the court was right on this. It is fine for the government to take property for a legitimate public need. But basically, the city of New London is weighing the "value" of two private parties and selecting the one they judge most valuable. This seems like a very dangerous precedent. Rich people are more more valuable than the poor, so we can eject the poor from their homes and transfer their property to more "desirable" types . . . . Yuk.
June 23, 2005 5:38 PM | Reply | Permalink
] This seems like a very dangerous precedent. Rich people are more more valuable than the poor, so we can eject the poor from their homes and transfer their property to more "desirable" types . . . . Yuk.
Well, let's hope that's not the precedent.
If that starts happening I think there will be a huge backlash. This sort of thing should only be used in extremly rare circumstance where exceptional cause can be argued.
June 23, 2005 7:17 PM | Reply | Permalink
1. The most important thing about the Supreme Court is "how" and not "what!"
As I argued before, The process is more important than the end result. You can't "make up" rules and decisions.
See also, Charles Krauthmammer's article in Wa Po about 2 weeks ago about the Supreme Court.
2. Here is a great satire - funny..a must read about the recent Supreme Court decision
"WAL-MART TO DEMOLISH THE SUPREME COURT FOR A NEW SUPER SUPREME CENTER"
Or go to http://satire.myblogsite.com/blog
3. Some day the "conservatives" in the Supreme Court will have a majority and rule their way. Some day the "liberals" in the Supreme Court will have a majority and rule their way.
So, you must first interpret (1) the text of the Constitution, (2) then, if ambiguous, go to the Original Intent of the Founding Fathers. I know, I didn't do justice to the Constitution, but it will take 3 books to write about it, so I gave you a summary, but it boils down to the text and the intent. Otherwise, you believe the "Constitution is a living document" and you interpret as you go along.
For a humorous take on "the living document" theory, read "Michael Jackson Receives 4 official and 1 unoffical Oscar Verdict"
June 18, 2005 article at http://satire.myblogsite.com/blog
June 23, 2005 7:42 PM | Reply | Permalink
I couldn't agree more. If a majority of the town council wants to demolish your family's home so a new mall can be built, that's OK by the Court.
That's disgusting and wrong.
I'm a Democrat, but I can't see myself supporting any pol who defends this decision.
June 23, 2005 5:39 PM | Reply | Permalink
Not too surprising. When it comes to defending the defenseless vs political control of the economy it is not surprising that the liberal judges opted for political control of the economy.
June 23, 2005 5:39 PM | Reply | Permalink
Now I don't mind using emminent domain for public works or facilities, but when they are using it to benefit developers for a private/for profit development...Somebody, get a rope.
June 23, 2005 5:42 PM | Reply | Permalink
I'm thinking... or at least hoping
that the issue was a bit more complicated than what we all read. At first when I saw the 5-4, without names, I thought ok...
Rehnquist, Scalia, Thomas, O'Connor, maybe Kennedy or Breyer...
and I thought... well Stevens sticks up for the little man, and Souter tends to be a good man, same with Ginsburg (but a good woman)...
and it was totally reversed.
I imagine it has more to do with the issue of whether judges can tell city council's what they can or cannot do... and not whether city council's can seize people's property... although, I don't get the case at all. If anyone has read the decision in its entirety, I would be glad to here their take.
-Zen Blade
June 23, 2005 5:48 PM | Reply | Permalink
You can read the opinion here. (The court posts them on their web site):
http://a257.g.akamaitech.net/7/257/2422/23jun20051201/www.supreme
courtus.gov/opinions/04pdf/04-108.pdf
June 23, 2005 5:56 PM | Reply | Permalink
I've read the majority opinion and am still unconvinced. I think the following paragraph from O'Connor's dissent summarizes the problem with the majority decision best:
In moving away from our decisions sanctioning the condemnation of harmful property use, the Court today significantly expands the meaning of public use. It holds that the sovereign may take private property currently put to ordinary private use, and give it over for new, ordinary private use, so long as the new use is predicted to generate some secondary benefit for the public—such as increased tax revenue, more jobs, maybe even aesthetic pleasure. But nearly any lawful use of real private property can be said to generate some incidental benefit to the public. Thus, if predicted (or even guaranteed) positive side-effects are enough to render transfer from one private party to another constitutional, then the words "for public use" do not realistically exclude any takings, and thus do not exert any constraint on the eminent domain power.
June 23, 2005 6:36 PM | Reply | Permalink
These decisions can be oversimplified. There is existing caselaw on whether land can be taken for a purely private purpose. What this case involved was a project that uses private interests to serve a public purpose. More tax revenues means more public services, or at least that's the theory. Is there necessarily a difference between building a highway that encourages people to visit the downtown business district and building the facilities that encourage them to visit?
There's certainly arguments on both sides, but it's not as cut and dried as drudge and his ilk would make people believe. Kind of surprises me that so many people would instantly buy into the republican line here.
June 23, 2005 5:52 PM | Reply | Permalink
O'Connor distinguishes the prior cases relied on by the majority pretty handily. Here's the crux of the dissent:
"The Court's holdings in Berman and Midkiff were true to the principle underlying the Public Use Clause. In both those cases, the extraordinary, precondemnation use of the targeted property inflicted affirmative harm on society--in Berman through blight resulting from extreme poverty and in Midkiff through oligopoly resulting from extreme wealth. And in both cases, the relevant legislative body had found that eliminating the existing property use was necessary to remedy the harm. Berman, supra, at 28-29; Midkiff, supra, at 232. Thus a public purpose was realized when the harmful use was eliminated. Because each taking directly achieved a public benefit, it did not matter that the property was turned over to private use. Here, in contrast, New London does not claim that Susette Kelo's and Wilhelmina Dery's well-maintained homes are the source of any social harm. Indeed, it could not so claim without adopting the absurd argument that any single-family home that might be razed to make way for an apartment building, or any church that might be replaced with a retail store, or any small business that might be more lucrative if it were instead part of a national franchise, is inherently harmful to society and thus within the government's power to condemn."
This was not the Libertarian right screeching about how any government regulation constitutes an illegal taking. The town is destroying well-kept and safe homes to let a private company build some shops. That sucks.
And, unlike the marijuana case, it's hard to say that the dissent's position would undermine necessary government authority. The line proposed by the dissent seems pretty clear to me.
I don't think anyone should stand up for this decision. It's a stinker.
June 23, 2005 6:17 PM | Reply | Permalink
I think the majority on this decision was simply naive. The legal justification (allowing cities more leverage to redevelop failing neighborhoods and improve the local economy for the public good) is in line with the general liberal consensus about the proper role of government in society. In practice, however, local governments are swayed by cold, hard cash, and this decision will allow aggressive private developers to run amok.
This is the sort of decision that gives "liberalism" a bad reputation, unfortunately. Naturally, the real villains (the private developers and the illiberal politicians in their pocket) will not be the focus of public ire when their property is seized.
The road paved with good political intentions...
Anyway, this is just all the more reason for progressives to focus on reforming government at the state and local levels to better serve the public interest.
June 23, 2005 6:42 PM | Reply | Permalink
This is a great example of how America is no longer a goverment of it's people. I am very aware of this case, living in Connecticut. What right does the government have to take your property and give it to a another private party? Corporations have more rights then other party's? It opens the door for cities, towns and states to come into your neighborhood and say..."we are taking your porpoerty and tearing down your house so Walmart can build a new store here". A sad day in American history.
June 23, 2005 6:03 PM | Reply | Permalink
Every town in America is now one ballot initiative from seizing the local Wal-Mart and turning it into a building for small buinesses, farmer's markets, etc.
June 23, 2005 8:59 PM | Reply | Permalink
Yeah . . . just try this. Wal-Mart has better lawyers than you do and way more money to fight the case. This decision will make it even easier for developers and businesses with deep pockets to get their way. City and town governments are small fry up against these commercial interests. Try working on a town committee trying to stop a developer, you'll see as I have how difficult it is.
June 24, 2005 6:58 AM | Reply | Permalink
We've kept Wal-mart under control in Portland OR. We just had a win over a big box project here a few months ago.
Agreed. Portland is not a typical US town. We're got a more knowledgable voter base than is typical here. We get huge voter guides for our mail-in ballots, and we actually do read them. That said, we're not that different, either. Within 4-5 years of having an Air America affiliate to listen to every day, most other major cities will be where we are now.
June 24, 2005 8:18 AM | Reply | Permalink
Adama, sure, the bien-pensant whitebread bobos of Portland will do just fine post-Kelo. It's those inconvenient communities of color in the other cities that will suffer far more.
They are more at risk. Especially African-American and Latino communities (supposedly we liberals, who are supposed to care about such folks) in lower-middle-income neighborhoods where the sales pitch to local officials is much more enticing because of the differential in valuation between current property values and the proposed property values. What everyone has failed to see is that without state level protections in place that prohibit this federal level ruling, a devastating trade will take place.
Here is the trade that is so devastating. Neither the developer nor the city officials are accountable for the promised tax benefits. The seizure can take place, the developer can take the land at below market rates, clear a profit on that, build the development, clear a profit on that, then skate by selling off to an investor group before any tax benefits can be realized, locking in their profits. The entire development can fall apart and tax receipts can go negative, and the people who promised good things will flow from the seizure will be long gone with their money.
This is a gift that keeps on giving, too. What, you thought that was where the damage ended? Silly, silly peons. City officials will project city revenue based upon these falsified tax receipt promises, lock in bloated payrolls, even more underfunded pensions and benefits for civic workers, and then, when the tax receipts don't materialize, guess who makes up the difference? Even if you are safely protected in some way from a direct seizure, the economic impact of these seizures will hit you like an eighteen-wheeler truck. You think property taxes are bad now? You ain't seen nothing yet after these debacles are through.
June 24, 2005 9:22 AM | Reply | Permalink
As I said above, I'm not supporting the ruling. I'm trying to make the best of a bad situation. And the best you can make of this situation is that if a community organizes against a real community problem, it can now shut down that community problem through a seizure.
Democrats have a real problem with weak community grassroots organizations right now. That's why Dean has been hitting the bricks all over the country to improve that situation. In the short term, there are going to be a lot more real bad stories than good stories.
Doing nothing but wailing and gnashing one's teeth about a bad decision accomplishes absolutely nothing and helps nobody. Pointing out that this decision does open up some options for activism tries to turn the lemon we've been handed into lemonade. There's nothing we can do about the decision. So, do what you can to make a lousy situation a little better.
June 24, 2005 2:06 PM | Reply | Permalink
Actually, in California, if you own a home and sell it and buy another one for the same price or less, then you retain the same tax rate you had on the previous home.
June 24, 2005 3:23 PM | Reply | Permalink
My town has a population of 7,000. We can't afford what Portland can afford.
June 24, 2005 9:30 AM | Reply | Permalink
We have a lot more people to convince here. You only need a few people to join with you and you could pretty much knock on every door in town.
June 24, 2005 2:10 PM | Reply | Permalink
The people of the United States collectively own all of the land under the jurisdiction of the United States. Every land deed draws its authority from the Constitution, which is based on collective ownership expressed in its first three words, "We the People ..." There is no such things as absolute private property rights in this country (original land grants may still have some exemption, I don't recall). All property is held in a sort of trusteeship by those who have deeds of ownership, a derivative right of personal ownership that comes from and is sunordinate to collective ownership. The state, acting on behalf of the public good, can define how land should be used. As long as laws are followed when property changes hands, and just compensation is given for seized properties, I think that authority falls within the scope of the Constitution. I agree that it is unfortunate that the owners of the land in dispute could not remain as they had lived for years, but I also believe that the City of New London had the right to determine how best to use land at its center ... as I understand it, waterfront land that helps define the identify and economic health of the whole city.
June 23, 2005 6:03 PM | Reply | Permalink
The problem I see with the reasoning that the government ultimately holds the rights to determine the use of land is that just compensation is almost never given. As an example: a builder buys up 5 adjacent properties, each holding a small house, but needs a 6th property to connect the other 5 and make a big enough parcel for a shopping center. If eminent domain is used to obtain the 6th property, the owner will be compensated for the value of that property as a site for a small house, which is considerably less than it is worth as a piece of a large parcel for a shopping center. If the compensation were always to be based on the highest and best use then I would have no objections. But, it never is. In reality, once the developer buys the first 5 parcels, the 6th is worth a great deal more and the developer should have to pay that higher value.
June 23, 2005 11:59 PM | Reply | Permalink
I couldn't agree more. However, as someone who can't afford property in California, and is therefore unaffected, just think what this will do for California's budget crisis. The state can now just condemn any property that hasn't changed hands in recent years, forcing property tax increases on all those folks paying tax on property values set in the 80's. All those folks will be required to repurchase their homes, paying considerably higher property taxes in the process. So much for prop 13. Someone call Arnold and get him working on this...
June 23, 2005 6:32 PM | Reply | Permalink
Just to clarify, I was agreeing with the original post, not the post above mine, which thinks the decision was correct.
June 23, 2005 6:36 PM | Reply | Permalink
Old guys will recognize this as a replay of the Federal Urban Renewal Program, one of the liberal pieties of the 50s, garroted by Jane Jacobs, Ed Banfield and Martin Anderson. What goes around doesn't come around; it just goes around again.
June 23, 2005 6:39 PM | Reply | Permalink
"Old guys will recognize this as a replay of the Federal Urban Renewal Program..."
Exactly what I was thinking. Eminent domain is always a dubious enterprise. It's certainly not enough to say the seizure will "improve" the neighborhood or expand the tax base. In practice, it's always about money, patronage, construction contracts for big donors, and the "edifice complex" that afflicts too many local politicians.
The only defensible use of eminent domain would be an non-trivial, urgent need by the community for the project. Hospitals or schools would qualify; malls would not.
June 24, 2005 1:34 AM | Reply | Permalink
Exactly. This decision simply removes the guise of "public use" that has been used to justify urban development for over 6 decades. We give corporations all kinds of goodies to come to our fair cities to create (reshuffle?) jobs and tax revenue. Rather than building a parking lot (public use), New London can get something built that might prime the pump for additional development. I'm not necessarily happy about it, but go back and revisit Poletown and The Fillmore (to name a couple) to see that this is business as usual.
What's neglected in this debate is the fact that one or two absentee landlords can hide behind private property rights to deprive cities from redeveloping areas of disinvestment. What do you do when an investor refuses to sell a dilapidated property they acquired for $800,000 in 1990 for no less than $5 million today? The entire neighborhood is adversely affected by the landlord's lack of reinvestment. My point is simple: it's not as black and white as some here portend.
June 24, 2005 10:31 AM | Reply | Permalink
The property in this case was not dilapidated (that was admited by the city). It was in good condition and condemned only to allow the taking. In the past, the government could take dilapidated property for the reasons you suggest. Kelo expands the power--even if the property isn't dilapidated, the government can now take it if they can show an economic benefit to the community.
June 24, 2005 12:10 PM | Reply | Permalink
The Supremes managed to put a dagger through the hearts of most home owners today. This vicious and heartless law that allows business interests to violate and seize personal property under the guize of "the common good", is beneath contempt. There is a total disconnect [on the part of the court voting for this] with ordinary hard working americans for whom a home represents "The American Dream".
This should not be allowed to stand, and our elected representatives should get to work Ruth Bader G.'s vote is unconscionable and unfathomable.
June 23, 2005 6:49 PM | Reply | Permalink
1. Don't blame Ruth Ginsberg. Blame the methodology that she used to arrive to this decision.
This is not a liberal or conservative issue. And calling the justices liberal or conservative does disservice and muddles the waters.
2. The real names are - (1) strict constructivist or (2) "living document" advocates, sometimes called "penumbra" rights advocates. (2) living documents crowd loves to "make up law" as they go along. Who cares if its not in the Constitution, I say it is in the Constitution, and you lose and are screwed up. I got the votes, and I found this and that right..hahaha..
Its called the Constitution is a "living document." So, whatever the justice feeeeeeeels, yes yes, feeeeeeels, based on this or that, based on "development" or "good" or "progress" or "innovation" that the justice makes up a rationale and you got a decision. Tough, if you don't like it, because the Constitution is a "living document" and in 20 years, we can change it, and in 15 years we can change it again.
3. Political/ideological liberals can be activist justices and MAKE UP LAW ( for example Roe v. Wade); and Political/ideological conservatives can be activist justices and MAKE UP LAW (for example the Supreme Court decisions in 1920s and 1930s)
4. The Constitution was written to limit (now that's a novel concept, isn't it) the power of the government! Therefore, the government power was and should have been limited in 1820, and in 1860, and in 1910, and in 2000, and in 2025.
The Constitution is a contract between the people and the state (i.e. government), which describes the rights and duties of each party. Once you have a contract in your hand, you rely on it.
But you have the other side interpret the contract differently, because it fits his/her agenda. Oops...Now what? Don't you just want to smack him with the contract he signed or you let him change the terms?
Now, I don't know how many libertarians or conservatives read TMP, but most of them will oppose "the living document" theory -a somewhat a late development, unlike the textual or original intent theories. I wonder if 5% of the liberals might change their postion, and think a second time, when the next Justice will be selected for the Supreme Court.
And if you are a homeowner, you better make sure the next Justice (a strict contstructivst) sides with you and the Constitution.
Just ask: Are you a strict constructivist or a believer in "living document" theory? And if you chose the 2nd, don't complain about today's decision. And don't call Thomas or Scalia a corporate stooge or someone who does not stand for the little guy.
June 24, 2005 1:04 AM | Reply | Permalink
Originalism was coined in the 1970s by Robert Bork. It's actually less venerable than the so-called "living constitution" theory, which posits that interpretation of the Constitution should be based upon national experience.
June 24, 2005 11:01 AM | Reply | Permalink
I would suggest that most of the fear surrounding Kelo is unwarranted. It's a good decision insofar as people keep a few things in mind. One, the residents are all compensated for their property, the case law changes nothing in that regard.
Two, have we become such a suburban nation that we fail to recognize all major cities have plans to revitalize and overhaul themselves economically. The rise of the automobile has meant that no longer are most residents fortunes tied to their town's economic development, believing instead they can buy their way out of urban ills.
But that's not true. Cities cannot always beggar thy neighbor.
June 23, 2005 6:57 PM | Reply | Permalink
Yeah, I hate this.
As I posted on another site, apparently the Frank thesis applies as much to liberals as to conservatives. Vote for economically nourished communities...get Wal-Mart.
Horrid.
June 23, 2005 7:01 PM | Reply | Permalink
The Connecticut legislature passed an eminent domain law, the City of New London used it, and the courts sustained it. If you don't like the court's enforcement of the law, it makes more sense to change the statutes and ordinances, rather than expecting the courts to read limitations on eminent domain into the Constitution. This kind of populist libertarianism surprises me at this site.
June 23, 2005 7:07 PM | Reply | Permalink
"[E]xpecting the courts to read limitations on eminent domain into the Constitution" is populist libertarianism?
The Fifth Amendment reads: "nor shall private property be taken for public use, without just compensation."
So the question is: what's a public use? If you say Wal-Mart, I say you're wrong.
June 23, 2005 7:14 PM | Reply | Permalink
<CITE> The Connecticut legislature passed an eminent domain law, the City of New London used it, and the courts sustained it.</CITE>
exactly!
<CITE>If you don't like the court's enforcement of the law, it makes more sense to change the statutes and ordinances</CITE>
Exactly right again. Locally, people can and should do that democratically to define their communities. I don't personally see this as a consitutional issue, I think it's very local. If enough Americans felt otherwise it could of course be a constitutional amendment.
<CITE>rather than expecting the courts to read limitations on eminent domain into the Constitution. This kind of populist libertarianism surprises me at this site.</CITE>
I agree, and I think this issue is horribly misunderstood. Most people seem to think the SC ruled that similar seizures could happen anywhere.
That is NOT what happened!
They did rule that local government has the right to make it's own law on this matter. That ruling is constitutionally correct.
BTW: ruling otherwise would have been "judicial activism" whether or not one agrees with the intended activism.
I don't think most posters here should be cheering conservative judicial activism at any time, and least of all when we're likly to see a rt wing majority soon, and the minority needs to preserve every principle they can.
June 23, 2005 9:01 PM | Reply | Permalink
arg. Sorry for the bad HTML. should have previewed
June 23, 2005 9:02 PM | Reply | Permalink
Dear Nick,
I wrote the comments you responded to, and I'd like to say thanks for your support.
Best wishes,
Ron Thompson
Madison, Wisconsin
June 23, 2005 9:27 PM | Reply | Permalink
"Locally, people can and should do that democratically to define their communities."
So if a local city council doesn't like all the blacks moving into the neighborhood they can force them out? You know, they drive down property values and that hurts our tax base. C'mon guys. This decision sucks. Some people hate Scalia & Co. so much they can't admit when the conservative justices are right. That's plain stupid. It's just like Republicans who can't admit Bush ever made a mistake.
Give me a break. This decision basically says the government can take your property if your income isn't up to par.
June 24, 2005 6:49 AM | Reply | Permalink
While I agree that the Kelo decision sounds terrible in that it opens the door as to what constitutes a public consideration for purposes of eminent domain, this strawman argument of what if a legislature wants to keep out blacks is ludicrous. Legislation dealing explicitly in race becomes subject to strict scrutiny and will generally not be tolerated by the courts. Making overreaching assertions in opposition to something only weakens legitimate arguments.
This case is a classic example of tough facts make bad law. Anyone who has spent time in New London, CT knows that the city is in desperate need of a facelift and with the Groton sub base up for being closed, it's not going to be getting better anytime soon. For the SCOTUS, considerations of the need to be able to bring the city out of the doldrums outweighed the legitimate desire of a handful of people to remain in their homes.
June 24, 2005 7:55 AM | Reply | Permalink
Well, they won't be able to keep out blacks directly. But they apparently will be able to move out the poor. And if the poor happen to be disproportionately black, hispanic, etc., then the effect is pretty much the same . . .
It used to be that you had to justify these types of projects on the basis of removing blight (or something harmful to the public). Now all you need to do is say that the development economically benefits the community. Let's face it. Rich people pay more taxes and therefore are always better than the poor for any community's economy. The Supreme Court now says those kind of value judgments are okay for local governments to make. This sucks.
June 24, 2005 9:35 AM | Reply | Permalink
The constitution protects individual rights regardless of the opinion of the majority. That's why courts interperet the constitution not legislatures. If you don't want legislatures determning what establihment of religion means then you should not want them to determine what public good means.
June 23, 2005 9:07 PM | Reply | Permalink
Now that I have had a bit of time to think about it, this case makes no secular sense at all. If the majority justices wanted to protect the right of eminent domain for other purposes, they could have distinguished them easily in their opinion, stating that the environment, like roads and other public goods could be said to be a public purpose, and this case did not present such a public good. It would make more sense, as you simply don't want eminent domain used to take private property from one person and sell it to another. I am reminded of the expensive eviction of squatters in NYC and an extravagance of issue-laundering that cost the City more millions in enforcement than the land was worth -- so that developers could use the land for purposes of housing improvement that had only a figleaf of public purpose. Here the figleaf is gone.
Politically, this case provides fodder for the right, the way the flag-burning case did, for a while. But the point is that, with issues like this, they don't have to last forever before the public either adapts or (as here) when a noxious doctrine is eventually overturned (hopefully). It was NOT just that this case benefitted nasty corporate interests in this particular case to uphold a better rule --- the rule itself is plain lousy. Justices are there to draw reasonable distinctions and for some OTHER reason, the failed to do so. The notion that they were following precedent is never an excuse for the SCOTUS to made bad law -- they have the power to adapt legal interpretation to human need and Constitutional principle, which in this case fell on the same friggin side of the fence.
June 24, 2005 5:53 AM | Reply | Permalink
Interesting debate here with good give and take on each side. I remain distressed however that eminent domain has evolved to the point where increasing the tax base is a good enough excuse to destroy entire residential neighborhoods. Almost ANY development could be justified on that basis. The facts of this case were egregrious. The city wanted to destroy a neighborhood to draw in a pharmaceutical company but they carved out a private club in the same area and didnt condemn that property. ANY development in any neighorhood at any time could be justified by this decision. Compensation just doesnt cut it. When an elderly person gets $100,000 for their 50 year home, where are they supposed to go? Dozens of amicus briefs were filed in this case with dozens of suggestions on how to develop a test that didnt leave things solely to local government. Folks, if you think the Federal or State governments are corrupt you havent seen ANYTHING until you have seen local government in action. But, I submit again that this decision makes it easier for the WINGNUTS to get their way on the forthcoming supreme court battles. There is NO WAY to satisfactorily explain or rationalize this opinion to red state america. At precisely the time when the WINGNUTS have almost ruined the GOP, the Court has handed a huge invigorating issue to them.
June 23, 2005 9:22 PM | Reply | Permalink
Well I am going to stir things up just a little it more. I am beginning to think that a little populist libertarianism is exactly whats called for to reinvigorate the Democratic party. I dont mind activist courts: there is no way to avoid them really. John Marshall was activist when he created judicial review. Decisions sustaining a woman's right to choose, a right to contraception, a right to privacy, the desegregation of schools; these are all activist. When Scalia wrote that the Federal Government had an interstate commerce interest in a few marijuana plants grown in someones yard, that was activist. The question comes down to who do you protect? Who do you stand up for?
June 23, 2005 10:17 PM | Reply | Permalink
I think one of the ghost issues of this case, in trying to deconstruct it WITHOUT justifying the lying, is the takings issue, particularly as it applies to environmental issues. The latter are the more likely scenario where the rules involved would be likely to be relevant, just as in the famous KKK incitement to violence case, liberals favored protecting the Klan, as the rule established would protect free speech.
That said, I think the Court, if they had the five votes, could have drawn a better distinction here. I haven't had a chance yet to read the dicta but my seat of the pants sense on this case, having read about it in the Times<img class="mceButtonDown" title="Bold" height="9" src="/tinymce/jscripts/tiny_mce/themes/default/images/bold.gif" width="11" border="0">. Anyway, there could be the kind of distinction that focuses on the limits on what kinds of use that a statute may allow, and what standards of a showing, including procedural, there could be. Given a free hand, there are plenty of ways the Court could have come up with a more modest decision in this case while reining in the dangers of 'libertarian populism' blocking environmental efforts -- which my
guess is they'll manage to do anyway. They are actually only adding fuel to the sagebrush rebellion types.
I would agree that it is curious that the conservatives favor judicial activism against local power, and the liberals the other way around, along with the corporate lineup.
June 24, 2005 2:47 AM | Reply | Permalink
"rather than expecting the courts to read limitations on eminent domain into the Constitution"
Well you don't have to READ limitations INTO the Constitution since there already ARE limitations placed in the Constitution. It's not like it's reading in-between the lines.
If the founders didn't want limitations, they wouldn't have put them in the document. But they did, and the limitation specifically is for public use. And you can read Justice Thomas's opinion for more definitions used at the time (and how "public use" was explicitly different from other terms used in the Constitution).
June 24, 2005 7:40 PM | Reply | Permalink
"There is existing caselaw on whether land can be taken for a purely private purpose."
Well, there is no such thing as a purely private purpose. The pols down at the city council can always dream up some way the public can benefit from any action they take.
June 23, 2005 7:16 PM | Reply | Permalink
Surprise: Ayn Rand's Rourke character somehow looks a bit different to me today-as a kind of court of last resort! <br />
June 23, 2005 7:18 PM | Reply | Permalink
"Public use" under the Fifth Amendment, is whatever the elected local government determines to be in the public interest, subject to passing the smell test in the courts.
The alternative is that the courts decide what is "public use" based on their own criteria. That's what Justices O'Connor, Scalia, Rehnquist, and Thomas attempted today.
June 23, 2005 7:22 PM | Reply | Permalink
I think we'd all agree that the "public good" must be pretty extrordinary, and that public use isn't intended to move people around like serfs.
] Public use" under the Fifth Amendment, is whatever the elected local government determines to be in the public interest, subject to passing the smell test in the courts.
Sure, with restrictions of course. For example the "Public Good" can't be cruel and unusual punishment, or racially motivated.
] The alternative is that the courts decide what is "public use" based on their own criteria. That's what Justices O'Connor, Scalia, Rehnquist, and Thomas attempted today.
I agree, that's the problem.
If Congress wants to take this up, and better define "Public Use" that might be a good idea. Maybe Democrats will do so or maybe Republicans will try and spring it.
June 23, 2005 7:41 PM | Reply | Permalink
>>"Public use" under the Fifth Amendment, is whatever the elected local government determines to be in the public interest, subject to passing the smell test in the courts.<<
So the courts must determine the meaning of the words "probable cause" in the Fourth Amendment, but they have to leave it to the local town council to provide the meaning of the words "public interest?"
That's coherent. That's consistent.
June 23, 2005 9:46 PM | Reply | Permalink
"Public use" under the Fifth Amendment, is whatever the elected local government determines to be in the public interest, subject to passing the smell test in the courts.
It seems to me that this is the real issue in this case - whether the "public use" in this case passes that "smell test."
And you may feel that "The alternative is that the courts decide what is "public use" based on their own criteria," but I'd argue that the Fifth Amendment language + the 14th Amendment permits a judicial determination of that question, because this is really a conflict between the rights of one "class" of property owners vs the rights of a different class of property owners. How can the city claim to be protecting the property rights of different kinds of property owners "equally" when they're denying the property rights of one class of owners specifically in order to give the property to the other kind? That's not really the same as giving the court carte blanche to simply make up definitions of "public use."
June 23, 2005 10:21 PM | Reply | Permalink
Public use, public good, and public interest are not synonymous. Public use has a very clear interpretation - parks, schools, courts, streets, etc. Public good could mean whatever one wants it to mean - it could be considered public good to run poor people out of town. Public interest means virtually nothing.
My understanding has always been that eminent domain is restricted to public use, and should never be used for any other purpose, but I recognize that redevelopment agencies have abused eminent domain repeatedly for private gain. And, don't forget that Bush benefitted from a misuse of eminent domain as part owner of the Texas baseball team.
The Supreme Court should, in my opinion, use this kind of opportunity to reestablish that public use means public use, and eminent domain is limited to that.
June 23, 2005 11:48 PM | Reply | Permalink
If the town can use the money raised by providing the site to developers to 1) build better schools for poor children in other parts of town, 2) provide social services to poor people in other parts of town, 3) hire more cops to patrol other parts of town, how does the project not provide a public purpose?
June 23, 2005 7:31 PM | Reply | Permalink
The government can use anybody's land for those purposes . . . so the government can take anyone's land now.
June 24, 2005 7:03 AM | Reply | Permalink
I am surprised to see so little if any comment today on this site regarding the Supreme Court decision in Kelo, the Connecticutt taking case.
Me too, when I only got six comments on my post on it at the "misc politics" table. ;-) Now I know why - everybody was commenting here instead of there.
To repeat one of the things I mentioned over there though, it's not unusual (IMHO) for the Supreme Court to rule in favor of "wealthy commercial interests" against private citizens - they've been doing a lot of that lately. As you noted, what's unusual is who voted for which side.
So, as I asked over there, what's going on here? Are the liberals shifting to a "states' rights" (or local government rights) stance? Are the conservatives beginning to see the wisdom of allowing the Federal government to "interfere" with states' (or local communities') rights on behalf of individual citizens? Is the world upside-down or not? I can't tell anymore.
June 23, 2005 7:43 PM | Reply | Permalink
If the town can use the money raised by providing the site to developers to 1) build better schools for poor children in other parts of town, 2) provide social services to poor people in other parts of town, 3) hire more cops to patrol other parts of town, how does the project not provide a public purpose?
If the town wants to do those things, raise property taxes on everybody, don't steal the property of a few. I saw a piece on the government in a lake community in Ohio I think trying to use this power to take lake front property away from middle class folks with pretty neat modest sized homes only to replace them with higher valued homes to increase the tax base. Anybody see how widely this could be abused by any slick developer buying off a local council? It's pure theft.
June 23, 2005 7:50 PM | Reply | Permalink
I think Dan Wingfoot is the one who has this right.
Here's what Kelo isn't:
1. The Supremes siding with big business
2. Free reign for your local government to take your house
3. A sign of the apocalypse
Here's what it is:
A recognition that property rights do not exist externally to the governmental system that recognizes them. The question is not whether a local government can take your property for a largely private usage that has a large public benefit; this was decided in Midkiff, a decision that only the hardest of hard core conservatives think is incorrect. Rather the questions at hand are where to draw the line and who should be the one doing so. The Supreme Court is essentially (and correctly) saying, "damned if we know!" The legislature is obviously closer and more vested in the decision; how are nine justices sitting in Washington to know if urban renewal is needed in New London? As the opinion points out, the Court (and lower courts) will police procedural irregularities (e.g. bribery, etc.), so crony capitalism will be, at least in theory, not an issue. In reality, this is a rather modest decision recognizing that the best information and knowledge resides elsewhere by a court that isn't afraid to rather technocratically exert its power.
Here's some of the other misconceptions I've been reading about Kelo online:
It's communist or socialist: Umm . . . no! The party is compensated for his house (most states compensate at the highest and best use, which tends to be very fair), so this is distributionally neutral. A reasonable argument can be made that this compensation does not properly compensate for emotional value - e.g. Mr. Kelo grew up in this house - but this is a different issue.
It's against the historical meaning of the Constitution: Ummm . . . not exactly! It's doubtful that TJ or JM could have even conceived of this type of activity at the time of the founding. They also wouldn't have conceived of zoning, but I don't think anyone wants to do away with that. The transformation of America to an urban, industrial economy from a rural, agrarian society has completely changed the way property is viewed. If anything, the legal conception of property around the turn of the 18th century (and soon after) favored a very contextual, rather than absolutist, view of property. Read Morton Horwitz's Transformation of the American Law for insight into how, from the very beginning of American civil law, judges instrumentally dictated property rights to achieve utilitarian (typically economic) goals.
It's doom for the home owner . . . it will dampen investment . . . : Again, way overblown. Penn Central really killed that Manhattan real estate market didn't it? Same is true of Tahoe-Sierra and Lake Tahoe real estate? Sorry to be glib and obviously these two anecdotal examples don't amount to much, but there is NO evidence that the isolate taking for civic improvement has ANY demonstrable effect on investment or interest rates. Maybe theoretically it does, yes, but, in actuality, it seems unlikely.
Basically, all of the reducio ad absurdums I've seen on the web today about free markets and absolute property rights are just that . . . absurd. Both free markets and property are rhetorical devices that are used to perpetuate existing hierarchies. Markets fail and absolute property rights can often lead to exceptionally poor societal outcomes due to misaligned incentives. Our legislatures have to be properly armed to combat these problems and Kelo makes certain that they are.
June 23, 2005 7:53 PM | Reply | Permalink
Excellent post.
The key point that everyone needs to understand is the court essentially ruled that local government has the right to democratically establish the definition of "public benefit" as it sees fit.
That ruling is constitutionally correct. There is nothing in the constitution which defines public benefit universally. Also, this ruling does NOT apply nationally to allow such seizures. LOCAL government can and should pass their own laws.
Connecticut democratically passed laws determining for itself what "public benefit" means. It's their right to change it again if they want.
But the Supreme Court was correct, the land use was in accordance with local law and the SC had no constitutional grounds to block it.
If we collectively want to change the local laws or constitution, we should!!
But don't expect the SC to enforce laws that don't exist! :)
June 23, 2005 8:37 PM | Reply | Permalink
Wow. Your take on this was far more sophisticated that mine. Thanks for taking me to school. :)
June 23, 2005 9:05 PM | Reply | Permalink
This is why we keep losing.
Who cares what the legal niceties are?
The Supreme Court -- the same one that the Republicans now say they have to get their nominee onto -- just ruled that the government can take your house, that you've lived in for generations (or your business, your farm, your ranch) and give it to ...say it with me...developers.
When O'Connor of all people tells you this is a decision that will benefit "the wealthy and the well-connected," you don't reach for your case law.
You propose national homestead legislation and go on tv saying this is the kind of judicial activism George Bush and the Republicans want to bring to your town in their next SCOTUS appointment. Don't let them.
June 24, 2005 9:52 AM | Reply | Permalink
This is why we keep losing.
Who cares what the legal niceties are?
Actually, laws do matter, and they're not changed by simply complaining about them. The SCOTUS does care about the "legal niceties" as you put it. They're a court, that's what they do.
Every community is free to pass ordinances to protect property rights, to define things how they see fit. Nationally we're free to add a constitutional amendment if we want this issue more clearly defined.
However, simply compaining about a law you don't like, and acting as though the courts should ignore "legal niceities" you disapprove of, that makes no sense. How exactly the supreme court ignore "legal niceties"?
If you don't like the law, then change it. Expecting the courts to enfore laws that aren't there, or that some people want to read into the constitution and believe is there, is a big waste of time.
June 24, 2005 5:03 PM | Reply | Permalink
Expecting the courts to enfore laws that aren't there, or that some people want to read into the constitution and believe is there, is a big waste of time.
Seems to me its pretty much the way the Republicans run the country.
My point was in response to the initial topic, the politics of the decision, not the jurisprudence.
June 27, 2005 7:30 PM | Reply | Permalink
Nobody's arguing for absolute property rights. Least of all me, given that I'm a committed environmentalist who has worked to limit development in my own community.
But this decision is pernicious in that it allows local communities to choose between private citizens based on the economic value to the community of those citizens.
Here are the facts: In New London, CT, average middle-class homeowners are being displaced to allow the yachting set a convenient place to park their boats and to make room for an office park. Is that a good outcome?
June 24, 2005 10:12 AM | Reply | Permalink
Last time I checked, the Constitution trumps local and state law when they conflict. When the benefit of a taking accrues primarily to a private party, as in this case, the 5th Amendment should prevent that taking. This was a horrible decision by "my side" of the bench. And I'm generally against an expansive, pro-property owner reading of the 5th amendment.
June 24, 2005 11:30 AM | Reply | Permalink
The Supreme Court has finalized the Bush "privatization" program. Now everything belongs to the corporations, and nothing belongs to the people. The government could always historically "take" property if it was needed for a public use, such as roads, schools, hospitals. This new ruling allows local governments to take individual's properties and turn around and sell it to developers. If an individual was lucky enough to buy a home in an area that has become quite desirable to developers, the developer can simply buy the local government - offer them enough money to use eminent domain to take the property. Then the developer can build highrise mixed-use commercial/residential, make millions, and the original homeowner is stuck with whatever was the fair market value of the home before the development. So in other words, if the home had value because of its location, the homeowner is denied the opportunity to sell for that increased value. How many local governments will sell out individual property owners in exchange for payoffs? Unfortunately most.
June 23, 2005 7:57 PM | Reply | Permalink
In his dissent, Thomas makes the point that the majority have substituted "general welfare" for the far more limiting term "public use"
June 23, 2005 8:27 PM | Reply | Permalink
A key phrase in the decision is that this sort of development plan cannot be adopted "to benefit a particular class of identifiable individuals."
Although I think the decision naive, it does acknowledge that modern redevelopment projects are now much more likely to be public/private mixes rather than purely governmental programs.
June 23, 2005 8:40 PM | Reply | Permalink
Here is a poll:
1. How many readers here support the next Supreme Court Justice to be a Strict Constructionist?
2. How many homeowners here support the next Supreme Court Justice to be a Strict Constructionist?
Well, if you disagree with today's Supreme Court decision, make sure the next nominee is a Strict Constructionist!
Othwerwise, you get - arrogant people in black robes thinking they know better than you - the shmocks and the morons of this world.
9 unelected people have more control over our lives, and homes, than one would have expected.
June 23, 2005 8:47 PM | Reply | Permalink
We can now seize big box stores like Wal-mart and Home Depot and turn them into small businesses and farmer's markets. All it takes is a successful ballot initiative.
June 23, 2005 8:56 PM | Reply | Permalink
We can now seize big box stores like Wal-mart and Home Depot and turn them into small businesses and farmer's markets. All it takes is a successful ballot initiative.
Oh sure. Because then in turn elected city council members, never, as a invariable law of nature, are ever influenced by fat-cat developers. And elected councillors are never motivated by anything that promises to raise property tax revenues.
June 24, 2005 2:20 AM | Reply | Permalink
I'm not saying pols don't overturn ballot initiatives at times. They do. However, they are far less prone to overturning a ballot initiative than a regular zoning ordinance or municipal regulation. It is well documented that pols pay a heavy political price if they attempt to blatantly act against the will of the voter so overtly.
June 24, 2005 8:00 AM | Reply | Permalink
Up is down and down is up.
How can this decision occur in America? Clearly, the end result will hurt the little guy. The wealthy most certainly wield the most significant political influence on a local level. I doubt we will see many mansions razed for a condominium complex.
I find myself pondering folks all over the country with lakefront or ocean property. They should be very afraid. Many own small homes and summer homes that have been in the family for years if not generations. They hold a little piece of the quaint old American dream. Now the City may take away their property, with compensation. Many of these homeowners would not even get a vote as they live in other states or counties and thus cannot vote in local elections. What do the local politicians have to fear from them?
It may be constitutional, but it doesn't feel right.
June 23, 2005 10:20 PM | Reply | Permalink
Look, forcing someone to sell their house so it can be sold on the cheap to some corporation is just wrong. How cany any so-called liberal support this? You can claim the extremely nuanced position of supporting the ruling because it lets local governments decide how to shape their communities, but by doing so you're ignoring the fact that government is supposed to stand up for the rights of individuals.
June 23, 2005 10:46 PM | Reply | Permalink
I'm surprised nobody has brought up an immediate economic impact of the case that has a very real political angle: Kelo is very likely the needle that will burst the housing bubble (how much is your home really worth if now the local city council can ED it for a Wal-Mart at any time?), or at least will be argued to have been the puncture.
So, now, when trillions in home equity evaporate, Bush will be able to blame the "liberal justices". Helps him in the fight for his eventual nominees, and allows him to point the finger at someone else for the 2006 midterms. Stevens, Ginsburg, et al. have really handed the Democrats a poisoned apple here.
June 24, 2005 2:30 AM | Reply | Permalink
I really am just shocked that so many liberal bloggers are upset by the Supreme Court decision upholding local power over eminent domain.
Let me put in this is raw political terms. Do they really want rightwing courts deciding what is in the "public interest" versus generally progressively-governed cities?
To give an example being discussed in New York City, many poor section 8 and other low-income renters are threatened with evictions as rental housing is converted to condos. The NYC City Council just approved an ordinance to give such renters the right to buy their apartments. This is de facto a form of eminent domain to force landlords to sell their apartments at market rates to specific homebuyers.
Do liberals opposed to yesterday's court ruling think this should be struck down as violating the 5th Amendment rights of the landlords?
June 24, 2005 6:02 AM | Reply | Permalink
Toll Brothers stock will be up today in sympathy with the Kelo decision. In affluent communities throughout the Northeast, property owners have worked to limited the McMansion sprawl, using the zoning code. But now, feckless politicians will fall back on the Supreme Court's ruling. Buy TOL on a pullback and make some bucks like any good American. Stop crying like a baby.
June 24, 2005 8:18 AM | Reply | Permalink
As of 2:35 PM, June 24:
Toll Brothers down 3.35%
Pulte down 1.19%
Centex down 1%
A little perspective on the challenges facing New London is needed. Some “public good” has already been completed by reusing abandoned, contaminated sites. It's an impoverished city desperately in need of investment. The percentage of persons living below poverty in 2000 was 16% (compared to 8% for CT). The population declined 10% between 1990 and 2000. The home ownership rate is only 38% compared to 67% for CT.
http://www.americancityandcounty.com/mag/government_corporation_s
purs_new/
http://www.brownfields.com/BrownfieldsSpotlight/2005/2005_Feb.htm
#Story4
“Designated a “distressed municipality” by Connecticut’s Office of Planning and Management, New London is one of Connecticut’s poorest cities. It has endured three decades of economic and population decline. With 56 percent of the real property within the city exempt from real estate taxes, few options exist to increase the tax base to pay for schools and other services. In the Fort Trumbull neighborhood where the Kelo plaintiffs reside, tax revenue is low, most construction predates 1950, and as of 1998 more than 88 percent of New London’s buildings were in a condition worse than “average” as generally defined…” The Court again endorsed broad state condemnation powers in Hawaii Housing Authority v. Midkiff, 467 U.S. 229 (1984), confirming that condemned property transferred to private beneficiaries can still serve a “public use.” The unanimous Midkiff Court ruled that the “public use” requirement is as broad as the government’s “police power,” i.e., the power to regulate private activities to serve the public interest. Id. at 240. The Court also reaffirmed that the judicial role in reviewing “public use” determinations is extremely narrow, and that courts must show great deference to legislative judgments. Id. at 240-241.
http://www.lw.com/resource/Publications/ClientAlerts/clientAlert.
asp?pid=1148
I think New London political and economic elites see no future without the major shot in the arm that this redevelopment promises. Given the unique situation of New London, I’m not too concerned that local government’s are going to start acquiring properties willy-nilly to make Wal-Mart happy. Hell, from what I can tell, Wal-Mart’s not having any problems acquiring properties.
June 24, 2005 1:41 PM | Reply | Permalink
Alright everyone, let's take a deep breath!
Now let me suggest that a sensible way to view this decision is by asking whether we think that the government NEVER should be permitted to use eminent domain for economic development.
If the answer is that in SOME CASES it makes sense to use eminent domain for economic development, then Kelo is a reasonable decision because the issue in Kelo was whether eminent domain for economic development never should be allowed.
Certainly, there may be cases where a corrupt government uses eminent domain on behalf private interests and relies on economic development as its pretext. But Kelo still permits a party to make that showing to invalidate the attempted taking.
So let's stop parading worst case scerarios here to decry the decision. If the Supreme Court held that economic development per se did not constitute a public use, then no government ever could utilize eminent domain to advance an economic development project no matter how vital to community interests.
Consider Kelo, therefore, as a compromise. It retains for local government the option of using eminent domain in pursuit of economic development, while perserving an avenue for property owners to argue that economic development is a pretext to enrich a set of powerful interests.
Lastly, let's keep in mind that even without Kelo, it is undisputed that government can use eminent domain to take property for private ownership, as it did for decades to help the railroads. You can argue that the railroads are different because they were common carriers, but if you look at the history, they were among the most rapacious robberbarons of the day.
My point is that even without Kelo, all property is threatened to some degree by eminent domain. The only issue here was whether economic development is so amorphous a term that it would permit any sort of government-assisted boondoggle, no matter how corrupt. Kelo has protections against such depredations. These protections may prove too weak, but I'd suggest we obtain the benefit of experience before indulging that presumption.
One last point: the dissenting opinion in this case would have overturned over a hundred years of case law. That's no little matter. If Thomas had succeeded in doing so, right now you'd be hearing libertarians champing at the bit to restore laissez-faire.
June 24, 2005 10:36 AM | Reply | Permalink
Eminent domain has no purpose in a free society with property rights.
If a public use or common good would be served by gov't taking property, gov't should pay whatever price can be negotiated with the seller....no exceptions. This is the only way the true value of property (and just compensation) can be ascertained. There can be no determination of *just compensation* otherwise. Moreover, gov't would give pause to taking property without a compelling public use or common good, if it were expected to pay the actual price.
At face value, Kelo is a farce. Gov't wants to take property to sell to a developer, presumably at about the same price as it would be purchased by gov't. But this action distorts the market value of the land and consequently its tax value, which was supposedly the basis for the taking...to increase the tax value. If gov't had not intervened to take the property, the developer would have no alternative other than to negotiate with the property owner and pay whatever premium was being asked. Undoubtably, that price would have been more than what the developer will pay gov't.
The SCOTUS's age is showing...I think they're senile.
June 25, 2005 2:29 PM | Reply | Permalink
If the answer is that in SOME CASES it makes sense to use eminent domain for economic development, then Kelo is a reasonable decision because the issue in Kelo was whether eminent domain for economic development never should be allowed.
Certainly, there may be cases where a corrupt government uses eminent domain on behalf private interests and relies on economic development as its pretext. But Kelo still permits a party to make that showing to invalidate the attempted taking.
>May I respectfully disagree with three thoughts; It is nothing for the business community to run a pro business candidate who will vote the way the establishment wants, thus leaving the average property owner with no legal resources to keeping his property. Average citizens do not have time for political office.
>Eminant domain by a government for public purposes is one thing, but eminant domain by government for private, "economic" purposes is another.
>With this ruling the days of private ownership of land are over
June 25, 2005 4:16 PM | Reply | Permalink
I think that outrage is the proper reaction to the Kelo decision. Regardless of how one parses out the opinon, the Court stated that the government's central planning of communities trumps the property rights of its citizens. If that doesn't give you at least a slight pause, then we must not have been in the same civics classes.
The glaring issue in the decision is the Court's low regard for property rights. As Kennedy's concurrence points out, the standard of review for takings cases "echos the rational-basis test used to revew economic regulation under the Due Process and Equal Protection Clauses". The rational-basis test is used for those situations that do not involve a "fundamental right" under the Constitution. Accordingly, the Court is apparently stating that property rights are not fundamental rights in America.
The inalienable rights of Life, Liberty, and Property were the foundation of John Locke's Social Contract Theory, which, in turn, was the philosophical foundation for much of the American constitution. We've come a long way in the last 200+ years. But, heck, I guess two out of three ain't bad.
Just as troubling as the Court's miserly opinion of property is its shuffle-step dodging of its responsibilities. The underlying principle behind the majority opinion is that local governments, rather than the courts, get to decide the definition of "public use" because local governments are more cognizant of their particular needs. Bull biscuits.
The words "public use" are not some sound bite snippets that drifted in from some common law dicta. They are actual, black and white words written in ink into the Constitution. We ought to at least give them a modicum of respect.
We do not let local governments define other constitutional terms. For instance, my local county board does not get to decide what "due process" or "equal protection" means under the constitution. It must live with the courts' definitions of those terms (which is probably for the best, because I don't think that my county board is all that bright). If local governments don't get to define other constitutional terms, why let them define the public use clause? The legal answer boils down to "just 'cause".
One might argue that the court could not possibly craft a rule that would apply to the pecularities of each individual taking. One could argue that, but one would be wrong. The courts routinely grapple with matters more complicated than this. Next to the strict scruitiny analyses under the Due Process and Equal Protection Clauses, the takings clause is hardly burdensome.
There are those who will say that this decision is not a precurser to the debut of the Four Horsemen of the Apocalypse. And they are probably right. If the sky didn't fall after Bush got "elected", then it is unlikely that this case will inspire the end of everything that is good and holy. This case is, after all, merely an extension of previous case law. But it is a very big extension and it signifies a very large step down a very slippery slope.
The purpose of the Bill of Rights is to protect the individual from what de Tocqueville called the tyrrany of the majority. Does it get much more tyrranical than to force a family from its home because somebody else can pay higher property taxes?
Today, we let local governments script their own definition of "public use". Tommorrow, it might be "just compensation". If we let the government dictate the terms and definitions of the limitation of its own powers, does that limitation really exist? In the Kelo case, the Supreme Court, for all practical purposes, erased words from the Bill of Rights.
That is not right.
June 24, 2005 1:11 PM | Reply | Permalink
You wrote ... "The glaring issue in the decision is the Court's low regard for property rights."
The bright spot is that the court recognizes that we have a burgeoning population on a fixed amount of land, and that consequently governments have an increasing responsibility, and thus authority, to make sure that the limited amount of land is used for the greatest common good.
I would hope that, in time, this decision will lead to more such governmental actions, for instance, to move population away from beaches and coastal wetlands to proserve those areas primarily as breeding habitat to help sustain the private fishing industry.
Private ownership must now be in compliance with overall public policy from here on. We can't slash and burn and use up and then move on any longer, as has been our custom for almost 200 years. We have no more land to pillage, so we, acting through our various representative governments as empowered by the court decision, must use what land we have wisely.
June 24, 2005 1:30 PM | Reply | Permalink
We can't slash and burn and use up and then move on any longer, as has been our custom for almost 200 years.
Apparently, we can't even live in our homes anymore . . .
June 24, 2005 7:04 PM | Reply | Permalink
Anon #74,
Great post. Thanks for clarifying the issue.
The Constitutional question is one of defining “public use.” Am I missing something or doesn’t that mean what it looks like it means? Tax revenues may be a positive public benefit resulting from the use of property but it doesn’t change the use. Private use is not public use no matter how much they kick back to the city (taxes which then flow disproportionately out to the wealthier suburbs).
If the Supreme Court held that economic development per se did not constitute a public use, then no government ever could utilize eminent domain to advance an economic development project no matter how vital to community interests.
My mistake was thinking that eminent domain was prohibited for private economic development. But how would it hurt if it were? Perhaps the railroads should have been nationalized (an infrastructure like the interstate highways). I live in a port town with a beautiful open bay-front that is the heart of the city. The City Council has tried for years to build a strip mall right in the bay and have been rebuffed. Someday they will succeed. I only wish their was some private property issue to stop them.
Local (and state) governments are always strapped for cash and often surrender to business interests. The main argument against any case of taking for private use is not that it is some corrupt scheme strictly for private benefit. The problem is that it will benefit the municipality as a whole. Gentrification will always expand the tax base. A new WalMart will always expand the tax base. Should economic development give WalMart dominion over my home?June 24, 2005 1:25 PM | Reply | Permalink
It's pretty simple. Do you want judges sitting on high saying, "sorry, that's not a public purpose, even thought the democratically elected local government thinks it is?" I think that would be a terrible idea.
This whole "the government will now take everyone's houses and give them to Walmart" argument is a joke. Eminent domain is used sparingly precisely because it is generally unpopular unless in the interest of something genuinely public. You really think the public in New London is better off if 7 incredibly stubborn families prevent a huge redevelopment project that will bring jobs and tax revenues to a struggling city?
June 24, 2005 3:39 PM | Reply | Permalink
I think this was a double reverse setup engineered by Karl Rove. Whoever pulled strings to get this on the SCOTUS agenda had a win-win. If the decision had gone the other way, score one for the "property rights" folks who have been using property rights law to prevent goverments doing things that are good for the environment and the commons. (See also today's NYT op-ed on the decision.)
However, it was more likely all along that it would go down this way and that "everyone" would think the decision wrong. So score one for the wingnuts trying to stop "activist" judges. And score at least two for all the local laws to prevent "takings" that will now be passed by large majorities and will leave governments at all levels limited in their ability to use eminent domain to do good.
June 24, 2005 3:42 PM | Reply | Permalink
The 1996 book A Wolf in the Garden may provide a clue to what went down in Kelo. Land rights activists are trying to turn public opinion against eminent domain. If the today's blogosphere is any indication, they've succeeded. Here is a quote from the description of the book on Amazon:
Debates concerning the federal role in regulating industry and in managing the nation's public lands are becoming increasingly contentious. This is in part due to the rise of well-organized and ideologically energized land rights movements that have vowed to resist expansion of environmental regulations and even to roll back existing environmental statutes.
June 24, 2005 4:12 PM | Reply | Permalink
New London is obviously a rare case. That is more of a reason to interpret public use strictly. It is rare that a municipality’s survival would depend on taking someone’s property for private development, and an exceptional situation shouldn’t influence general law. New London’s circumstancesare unfortunate and you’d think that those families would give up their homes to save the town, but should they be forced to give them to developers to build more profitable housing? If the town wanted to take the homes to build a waterfront park or recreation area to attract tourism or any other public use, no one would be concerned.
If a government wants to protect a seashore for public use, that is great. If a government wants to build a road or school for the greater good, that is great. Eminent domain for public use may be rare and should be as rare as possible. I realize that cities make deals with private enterprises all the time. Where I live, that relationship is already too cozy. Maybe I’m gullible on this issue or I'm becoming too paranoid about government (not without reason). But it seems to me that taking one person’s property for the profit of another person or some corporation is just wrong.June 24, 2005 6:55 PM | Reply | Permalink