Kelo In The Times

The NY Times covers the aftermath of the controversial Kelo decision, and poses a typical and amusing puzzle for its readership:

States Curbing Right to Seize Private Homes

By JOHN M. BRODER

In a rare display of unanimity that cuts across partisan and geographic lines, lawmakers in virtually every statehouse across the country are advancing bills and constitutional amendments to limit use of the government's power of eminent domain to seize private property for economic development purposes.

The measures are in direct response to the United States Supreme Court's 5-to-4 decision last June in a landmark property rights case from Connecticut, upholding the authority of the City of New London to condemn homes in an aging neighborhood to make way for a private development of offices, condominiums and a hotel. It was a decision that one justice, who had written for the majority, later all but apologized for.

The reaction from the states was swift and heated. Within weeks of the court's decision, Texas, Alabama and Delaware passed bills by overwhelming bipartisan margins limiting the right of local governments to seize property and turn it over to private developers. Since then, lawmakers in three dozen other states have proposed similar restrictions and more are on the way, according to experts who track the issue.

  Now for the puzzle - who were the five Justices in favor, and who were the four opposed?  It's a long article, but only one Justice is mentioned:

The Supreme Court seemed to invite such a response in its narrowly written ruling in the case, Kelo v. City of New London. Justice John Paul Stevens, writing for the majority, expressed sympathy for the displaced homeowners and said that the "necessity and wisdom" of the use of eminent domain were issues of legitimate debate. And, he added, "We emphasize that nothing in our opinion precludes any state from placing further restrictions on its exercise of the takings power."

Two months after the ruling, addressing a bar association meeting, Justice Stevens called it "unwise" and said he would have opposed it had he been a legislator and not a federal judge bound by precedent.

The life and hard times of Justice Stevens, strict constructionist.

Well.  Just as sophisticated Muscovites learned that it was what was *not* in Pravda that was as important as what was, so to do savvy readers of Pravda-on-the-East River know that the answers can often be found in the empty spaces.

In the case at hand, common sense guides the answer - if Justices Scalia and/or Thomas had led a majority that provoked this reaction, it would have been mentioned by the third paragraph.  Hence, even casual court-watchers unfamiliar with Steven's reputation will correctly guess the truth - the Kelo decision was achieved by the liberal members of the Court.

But it may take readers with a longer memory to recall that the Times editorialized *in favor* of Kelo at the time.  (Or, there is always the InstaPundit.)

Linda Greenhouse did not disguise the alignments when the decision came out:

Justices Stephen G. Breyer, Ruth Bader Ginsburg, Anthony M. Kennedy and David H. Souter joined the majority opinion in Kelo v. City of New London, No. 04-108. Justice Kennedy also wrote a separate concurring opinion to emphasize that while there was no suggestion in this instance that the plan was intended to favor any individual developer, "a court confronted with a plausible accusation of impermissible favoritism to private parties should treat the objection as a serious one and review the record to see it if has merit."

Justice O'Connor's dissenting opinion was joined by Chief Justice William H. Rehnquist and by Justices Antonin Scalia and Clarence Thomas. She wrote that rather than adhering to its precedents, the court had strayed from them by endorsing economic development as an appropriate public use.

"Who among us can say she already makes the most productive or attractive use of her property?" Justice O'Connor asked.

She added: "The specter of condemnation hangs over all property. Nothing is to prevent the state from replacing any Motel 6 with a Ritz-Carlton, any home with a shopping mall or any farm with a factory."

Both Justice O'Connor and Justice Thomas, who also filed his own dissent, said the decision's burden would fall on the less powerful and wealthy.

"The government now has license to transfer property from those with fewer resources to those with more," Justice O'Connor said. "The founders cannot have intended this perverse result."

Justice Thomas, who called the decision "far reaching and dangerous," cited several studies showing that those displaced by urban renewal and "slum clearance" over the years tended to be lower-income minority residents.

"The court has erased the Public Use Clause from our Constitution," he said.

Gosh.  The Times missed a chance to laud the eerily prescient Justice Thomas.  Go figure.

Comments

[clarice]

Yes. it was Thomas who opposed this most strongly. We have to be grateful for one thing:If the court had continued its prior path of simply stretching the definition of "public use" beyond recognition instead of being forthright, no one would have noticed or cared.http://americanthinker.com/articles.php?article_id=4594&search=clarice

[Gary Maxwell]

Go figure.

[Cecil Turner]

Gosh. The Times missed a chance to laud the eerily prescient Justice Thomas.

The more SCOTUS decisions I read, the more impressed I am with Thomas. He is far less prone than the others to proffer an intricate, brilliant, and wrong argument. It's amazing how far a little logic and common sense can take someone (and how little he's appreciated).

[clarice]

A h/t to you TM http://americanthinker.com/comments.php?comments_id=4509

And another NAG NAG NAG about the book.

[kim]

It may well be what she saw in him.
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[kim]

The destructiveness of this decision may someday rate the moniker of 'The Keloton Bomb', but I see the states are holding disarmament talks.
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[noah]

When I pointed out to liberals in a lather about Roberts/Scalia that liberals on the court were 4 out of 5 affirming Kelo they would sink into pouty silence since I have yet to meet anyone who actually thinks that the decision was correct according to the "folks" understanding of America and its Constitution.

But when I would point out that the same 4 had voted to sustain McCain-Feingold along with Sandra Day O'Connor they sprung back to life. Because you see they really do understand that "substantive due process" allows one to achieve just about any result that is desired...and it is the result that counts!!!

[noah]

in a lather about Roberts/Alito

[Specter]

This issue is fairly close to me as I live in Connecticut. I wrote about this decision last month. You can review it here.

Personally, I feel the courts have gone way to far in granting unchecked power to local authorities. So I did not agree with the decision. But it seems there is some precedent in the law - unfortunately.

The latest up here is that the town of New London has offered to move the homes in question into another parcel of the property. The town would own the property, but the families could live there for life. Sounds like a great deal huh? Not!

[noah]

Sort of like Habits building homes for the poor but they don't really own them. So it is predictable what will become of them.

[noah]

Specter, Is it true what I have read somewhere that the developers are backing out because of the bad publicity and that the land is going to end up vacant or used for some other purpose?

[kim]

Another trick is for local government to own the land, but build housing for sale on longterm leased land.
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[Specter]

noah,

The latest is that the town will own, and the ex-owners have to pay rent. The New London Development Corp. - which is the entity that was originally given the job of planning and implementing the development - and of issuing the eviction notices - has now taken a back seat to the local town officials. They are now saying they will do as the town decides. This is quite different from the stand they took before.

Kelo herself is saying that at least people are talking about solutions now - that the development and private homes could somehow be mixed.

Hopefully we will see lots of states adopting limits on this kind of gevernment theft.

[Specter]

geverment? Sheesh I need more coffee

[Sue]

In a discussion with a liberal lawyer person, while she didn't like the decision, hey, what else could the court do? They were looking at a narrow issue. What did I expect them to do, make something up out of whole cloth? I asked her isn't that what happened in Roe v Wade? Of course not, she said. That was sound law. Okay....

I don't understand why people don't revolt over Kelo. If nothing else, get your state legislature to pass laws prohibiting its use from one private citizen to another or when the sole purpose is to snatch prime land. The right to privacy includes owning your home and expecting it to be your decision whether to sell it or not. If a private developer wants it, pay my price or move on down the road.

[kim]

How did this issue escape the precedent of common law. I mean it's the reason ex-slaves didn't get 40 acres and a mule.

Nobody knows the trouble I seen.
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[Specter]

kim,

I am pasting this from my post. It refers to how the difinition of "public use" has changed over time (you can find it here:

At an earlier time, the factor of judicial review would have been vastly more important than it is now, inasmuch as the prevailing judicial view was that the term ''public use'' was synonymous with ''use by the public'' and that if there was no duty upon the taker to permit the public as of right to use or enjoy the property taken, the taking was invalid. But this view was rejected some time ago. The modern conception of public use equates it with the police power in the furtherance of the public interest. No definition of the reach or limits of the power is possible, the Court has said, because such ''definition is essentially the product of legislative determinations addressed to the purposes of government, purposes neither abstractly nor historically capable of complete definition. . . . Public safety, public health, morality, peace and quiet, law and order--these are some of the . . . traditional application[s] of the police power. . . .'' Effectuation of these matters being within the authority of the legislature, the power to achieve them through the exercise of eminent domain is established. ''For the power of eminent domain is merely the means to the end.'' Traditionally, eminent domain has been utilized to facilitate transportation, the supplying of water, and the like, but the use of the power to establish public parks, to preserve places of historic interest, and to promote beautification has substantial precedent.

The Supreme Court has approved generally the widespread use of the power of eminent domain by federal and state governments in conjunction with private companies to facilitate urban renewal, destruction of slums, erection of low-cost housing in place of deteriorated housing, and the promotion of aesthetic values as well as economic ones. In Berman v. Parker, a unanimous Court ob served: ''The concept of the public welfare is broad and inclusive. The values it represents are spiritual as well as physical, aesthetic as well as monetary. It is within the power of the legislature to determine that the community should be beautiful as well as healthy, spacious as well as clean, well-balanced as well as carefully patrolled.'' For ''public use,'' then, it may well be that ''public interest'' or ''public welfare'' is the more correct phrase.

[maryrose]

I remember being stunned when this decision came down. Also that it wasthe liberals on the Court that agreed to it.
Specter, you have traveled far from Indiana to San Diego and now to Connecticut.
What I don't understand is if Kelo owns her house why does she have to pay rent to the corporation claiming her land and letting her live there.
Also a similar ploy was tried in a neighboring suburb where the mayor tried to claim the area for the planned development was blighted. After a scathing interview with Mike Wallace regarding the meaning of Blight-{none of the homes were} this mayor ran for re-election and lost. Hence - no new development. Each state should pass their own laws to prevent this from happening.

[clarice]

Even where there is a public purpose, the laws need to be changed. I understand lots of property was taken in Seattle to build a rail system. When the plan became too expensive and was dropped the original owners were not allowed first dibs to buy it back for what the city had paid them. It's all going to the highest bidder. PHEH

[Anonymous Liberal]

Kelo is perhaps the most misunderstood opinion to Court has issued in decades. The Court in Kelo merely reaffirmed a ruling that went back all the way to Berman v. Parker in 1954. It was well-established that economic redevelopment constituted a valid "public use" under the takings clause. Even the dissenters agreed with this. But they wanted to draw an arbitrary line between takings of "blighted" property and takings of other property. All this would have done is insure that eminent domain powers were excerised exclusively on the poorest and least politically influential communities. By making it clear that everyone is potentially at risk of eminent domain taking, including the upper and middle classes, the court not only was truer to the constitution, but it insured that the political branches would step up to the plate to regulate in this area. That's the ideal outcome.

This situation is analogous to the abortion debate. Rather than step in and create a textually-dubious constitutional right (as the Court did in Roe) it left this issue to the political branches and stayed truer to the constitutional text. This is exactly what conservatives should want. The constitution unambiguously recognizes the power of eminent domain. But just because states and municipalities have that power does not mean they have to use it. They can elect not to and they can even pass laws--as they're doing now--to restrict the use of eminent domain. This is a far-preferable mechanism for regulating eminent domain than having the courts step in and impose arbitrary rules of their own making.

And one last thing, the Times misstated Stevens' position. He doesn't regret his decision in Kelo. He thinks it was right. He was saying that the decision by the city of New London to exercise its eminent domain power was unwise (but constitutional). That's very different.

[Sue]

The 'public use' terminology has morphed. That is the issue, not whether eminent domain is constitutional or not.

[Specter]

AL,

As I stated in my post, it is unfortunate the way the "public use" definition has changed, but I think the justices made the correct decision based on the precedents. But that does not mean the precedents can not be, or should not be, overturned. I think the justices were correct in referring the issue back to the states and that is where the majority of the action will heppen.

BTW - "blighted" does not just stand for "poor" - and in fact it might be a bad analogy. Think of the hundreds of abandoned factories across cities and towns. When Pittsburgh redeveloped the riverfronts they did so by building where the old mills used to be. No individual people were hurt in the process....

Maryrose,

New London will pay the owners for their homes - what goes for fair market value - and then they would rent back from the city. Still - it does not seem fair.

[davod]

Noah:

If when you mentioned Habit you were talking about Habitat for Humanity then you were wrong. A Habitat homeowners has a mortgage for what it costs to build the house. The homeowner can do what they like with the house, the same as any other homeowner.

[kim]

Excellent, Spector, Sue, et AL. I am dangerously knowledgable about the subject, now.
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[kim]

Are some Habitat for Humanity houses being built on land in a long term lease from a municipality?
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[Gary Maxwell]

AL

Precedent aint everything. Remmber Pliesey v Ferguson? The court would have been truer to the Constitution if they had come up with a ruling which protected private property from unreasonable seizure. Life, liberty and property were used together by the founders in many of a discussion.

[maryrose]

Eminent domain in its purest form took place in our country's history in the Westward Movement. Also in acquiring Texas and Louisiana and points west. Now it's starting to look like the spoils go to the highest bidder or the corporation with the most to gain. An insurance company was going to use that land, I believe in Connecticut. There is something wrong with that.

[Anonymous Liberal]

Precedent aint everything. Remmber Pliesey v Ferguson? The court would have been truer to the Constitution if they had come up with a ruling which protected private property from unreasonable seizure. Life, liberty and property were used together by the founders in many of a discussion.

Gary, I agree that some precedents were made to be broken, but I don't think this was one of them. In some instances, takings for economic redevelopment are necessary and would meet anyone's definition of "public use." To rule that economic redevelopment is NEVER a public use would be absurd. So the question then becomes: where do you draw the line, and perhaps more importantly, who should be drawing that line? I think that these decisions are better left to the political branches (who, after all, are the ones doing the takings and are directly accountable to the people). If the courts were to step in and start deciding which types of economic redevelopment projects are valid public uses, it would open up a whole can of worms. There would be endless litigation. The courts would be forced to make decisions based on principles they make up themselves and that have no textual basis in the constitution. This is exactly the sort of thing conservatives generally hate. Moreover, when the court takes it upon itself to draw these lines, it reduces the possibility of meaningful political checks. For example, if the dissenters had prevailed in Kelo, eminent domain would be limited to "blighted" neighborhoods. There are well-documented examples of eminent domain causing great injustice to property owners in poor and blighted neighborhoods. Yet I'm positive if the dissenters had prevailed, there would be no political movement right now to curb eminent domain use. The simple fact is that whenever a problem only affects the poor, it doesn't get the political attention it deserves. By refusing to step in and draw arbitrary lines, the court has encouraged the political branches to come up with better and more democratic solutions to this problem. That's exactly the right outcome.

[Gary Maxwell]

What is wrong with the old fashion method of acquiring property? As in buy it. I own nothing that is not for sale at some price. Same goes for nearly everyone. What purpose does emminent domain serve? To provide a cudgel to hold the price down. Simple and effective and available for misuse.

Spare us the poor and downtrodden speech. They get hosed worse by emminent domain since many dont understand their right to contest the offer price.

[Rick Ballard]

AL,

My compliments on a clear and cogent presentation. I can only fault your premise by noting that the end result of the decision is an extension of legitimacy to an exercise of authority by the state rather than a protection of the individual. Philosophically, Kelo is aligned with CFR and neither will give a conservative (or classic liberal) the warm fuzzies.

[Anonymous Liberal]

What is wrong with the old fashion method of acquiring property? As in buy it. I own nothing that is not for sale at some price. Same goes for nearly everyone. What purpose does emminent domain serve? To provide a cudgel to hold the price down. Simple and effective and available for misuse.

My answer to this is two-fold. First, it's sort of an irrelevant question given that the power of eminent domain is clearly recognized in the constitution. If we don't like it, we should amend the constitution.

Second, the reason the power is included is because it is necessary. Take, for example, a non-controversial public use like building a freeway. The problem with simply buying all the necessary property is that it can't be done. Once you start buying up the property, the remaining pieces become exponentially more valuable. This value does reflect the actual value of the property under normal conditions, but rather the extortion value the owner can exert by holding up the entire project. If you are missing just one piece, that last holdout can demand thousands of times more than the person who sold first. That's why you inevitably have to use eminent domain to complete any large project that requires buying land from multiple sources.

The same exact phenomenon happens with economic redevelopment projects. As soon as word of a major project gets out, speculators swoop in and buy up key parcels of land and demand sums from developers that are exponentially higher that what the land was worth just weeks before. This makes developers reluctant to attempt any large projects because they know the whole thing can be derailed (or rendered unprofitable) by a few greedy speculators. The only way around this problem is the judicious use of eminent domain, or at least the threat of it. With the specter of eminent domain looming in the background, speculators are less likely to hold out for truly extortionary sums. If you outlawed the use of eminent domain for such purposes, it would pose a major obstacle to any large-scale development project.

It is for all these reasons that the task of regulating eminent domain power is best left to the political branches. Legislatures can adjust the rules when necessary to make sure that the proper balance between property rights and practical concerns is acheived. This will require the sort of policy analysis and rule-tweeking that courts are not very good at doing.

[Gary Maxwell]

I dont think that buying land for a highway and buying land for the local developer to put an adult fantasy world mall are even in the same ball park. One is public use the other is bullshit and you and I both know it.

[Barney Frank]

AL said;
'In some instances, takings for economic redevelopment are necessary and would meet anyone's definition of "public use."'

Not mine. Not if it consists of the governemnt taking from one private entity and giving it to another. That is not a public use but a public benefit and is a bottomless pit.
This is simply another example of our 'living constitution' under which free speech means the government can stifle political speech at will, promote the general welfare means the Feds can start a universal coercive pension system, Congress shall make no law respecting an establishment of religion means the ACLU can sue kids for praying before a football game and the ninth and tenth amendments are rendered essentially null and void.

[Ranger]

"Two months after the ruling, addressing a bar association meeting, Justice Stevens called it "unwise" and said he would have opposed it had he been a legislator and not a federal judge bound by precedent."

So, is this how a SC Justice asks for a mulligan on his vote? Or it just another "I was for it before I was against it" moment?

[Anonymous Liberal]

I dont think that buying land for a highway and buying land for the local developer to put an adult fantasy world mall are even in the same ball park. One is public use the other is bullshit and you and I both know it.

That's hardly fair, Gary. My highway example was just for background, something that is pretty clear from my post. And I doubt that eminent domain has ever been used to build an "adult fantasy world mall."

[Anonymous Liberal]

So, is this how a SC Justice asks for a mulligan on his vote? Or it just another "I was for it before I was against it" moment?

He wasn't asking for a mulligan on his vote. He was saying that if he was on the New London city council he wouldn't have voted for this particular project. He's not questioning that Kelo was rightly decided as a matter of constitutional law.

[Anonymous Liberal]

Not mine. Not if it consists of the governemnt taking from one private entity and giving it to another. That is not a public use but a public benefit and is a bottomless pit.
This is simply another example of our 'living constitution'...

Barney, you're very confused. Kelo was not about whether taking from one entity and giving to another can be a valid public use. That issue was decided long ago in Berman v. Parker (1954). Even the dissenters in Kelo didn't question this interpretation,

Ironically, this time it is you who are arguing for a "living constitution" interpretation. You want the court to read into to the constitution a property protection that doesn't exist, or at the very least, has never been recognized. It's very hard to argue that takings for economic redevelopment are not valid public uses in at least some instances. As I explained above, large scale economic redevelopment is not possible without at least the threat of eminent domain. So it's logical to consider such development a public use, at least when it is done for the good of everyone in the community.

The difficulty comes in deciding what is a good use of eminent domain and what is an abusive one. That decision is best left to the political branches because it requires difficult rule-making and careful balancing of interests. Plus, if the courts were to attempt this, they would be operating without any textual guidance, and if you don't like the idea of the "living constitution," you really wouldn't want that.

[cathyf]

The same exact phenomenon happens with economic redevelopment projects. As soon as word of a major project gets out, speculators swoop in and buy up key parcels of land and demand sums from developers that are exponentially higher that what the land was worth just weeks before. This makes developers reluctant to attempt any large projects because they know the whole thing can be derailed (or rendered unprofitable) by a few greedy speculators. The only way around this problem is the judicious use of eminent domain, or at least the threat of it. With the specter of eminent domain looming in the background, speculators are less likely to hold out for truly extortionary sums. If you outlawed the use of eminent domain for such purposes, it would pose a major obstacle to any large-scale development project.

But you are wrong, AL. You have stated the problem quite well, but it is a problem that the market has solved.

How do you think pipelines get built? Building a pipeline involves acquiring a contiguous strip of land which is ten feet wide and hundreds of miles long. Using eminent domain is worthless -- there are as many local governments involved as there are landowners, and the local governments would play the same game as you correctly identify going on with the speculators. The pipeline company would get blackmailed by individual municipalities that they would have to pay off, and it would be impossible to build anything.

What the pipelines do is to map out multiple possible routes, and then they buy options from the landowners. As soon as the pipeline company assembles options on any one route, they abandon the other routes (and any option premiums they have paid to the landowners along those routes.) So if you hold out unreasonably, then you get nothing, while your neighbors get "free money" in the form of the premium on unexercised options. The pipeline company of course pays more for the land than if they were buying it for its current use, but that is good economics -- in order to have a resource put to a higher-valued use you have to share some of that higher value with the current owner of the resource, or there is no correct incentive for economic efficiency.

If the developer in New London had been forced to get the land without eminent domain, then they would have had to create several different plans with different parcels and different designs, and then gone out and bought options. One of two things would have happened: they would have assembled what they needed at freely agreed-upon prices, or it would have been too expensive and they would have abandoned the idea. Either way we could have been satisfied that property had changed hands at market prices and the resources were going to their most highly-valued uses.

Some commentators have pointed out the a real weakness of this supreme court is that it contains no lawyers with experience in the day-to-day legal operations of corporate life. If they did, they would know all about things like using option contracts to control for "common pool" problems -- because they would have written quite a few of those contracts themselves. Instead, we have people who are claiming that you have to use ED this way because there is no other choice, and the judges who dissented from Kelo granted the utilitarian argument even though the utilitarian argument is wrong.

cathy :-)

[Barney Frank]

AL,
I will cop to being frequently confused. However in this case I am not. I understand perfectly well that the court has said public use actually means any private use that might in some way benefit the public.
I am saying the court has changed the clear original intent of the constitution, which is not a function of the court but the amendment process.
I am not making an appeal to a living constitution, I am stating the court has misconstrued the constitution. Overturning an extralegal precedent is hardly an appeal to judicial activism. You are stating a form of a legal Brezhnev doctrine; once the court establishes a 'liberal' precedent it is now set in stone. You seem to have the idea that the constitution means what the court says it does at any particular time. Under this reasoning the constitution can mean things 180 degrees opposite of what it meant prior to a paticular court decision. That isn't constitutional governement; it isn't even consensual government. It is arbitrary and not what the role of the court was envisioned to be. Hats off to John Marshall for starting us down this road.

[Extraneus]

Great discussion, thanks to the many knowledgable folks here. Not being one of them, all I can say is that it seems strange that the founders would have intended a non-uniform standard for property rights, with each state and thousands of different communities setting their own standards, but maybe they did. As long as the rules are clear enough, we're free to buy where we like, and places with stronger ownership rights should be relatively more valuable.

[Gary Maxwell]

I doubt that eminent domain has ever been used to build an "adult fantasy world mall."

Ah but it could which is precisely my point. Public use is NOT Public purpose. Public use is a city hall, a jail or a highway. Public purpose is what some politician thinks is a good cover to ram through a project for his developer friends and contributors.

Good post Cathyf and a well made point. Projects do die if the demands get too high, and will the world ( the public) really be worse off with one less Adult fantasyworld mall.

[Anonymous Liberal]

I am not making an appeal to a living constitution, I am stating the court has misconstrued the constitution. Overturning an extralegal precedent is hardly an appeal to judicial activism. You are stating a form of a legal Brezhnev doctrine; once the court establishes a 'liberal' precedent it is now set in stone.

Barney, the problem with this argument is that even the dissenters on the Court disagree with you. The dissenting opinion AGREED that economic redevelopment is a valid public use. The debate in Kelo was over whether or not that use should be arbitrarily limited to blighted neighborhoods. You don't have to get into emanations and penumbras to think the phrase "public use" might include economic redevelopment that local governments deem to be in the interest of the public. Indeed, that reading is so plausible that nearly all of the justices agree with it.

This is one of those cases where throwing around the term "judicial activism" doesn't make much sense. It's not at all clear which side (the majority or the dissenters) had the more "activist" position. I think the dissenters position required reading into the phrase "public use" some fairly arbitrary principles. I also think the dissenters position would have required significant and prolonged judicial meddling in an area with almost no textual guidance, an area better left to the political branches.

[Anonymous Liberal]

Ah but it could which is precisely my point. Public use is NOT Public purpose. Public use is a city hall, a jail or a highway. Public purpose is what some politician thinks is a good cover to ram through a project for his developer friends and contributors.

Gary, I can say with some certainty that politic pressures will insure that eminent domain is never used to construct adult video stores. And more importantly, you're doing the same thing Barney is: you're arguing for a position that not even the dissenters in Kelo agree with. It is, of course, perfectly fair to do so, but I just thought it was worth pointing out.

[Gary Maxwell]

Arbittrarily limited is better and closer to the correct reading of the constitution wording here.

And AL all the more reason for Stevens and Ginsburg to acknowledge their health issues and step aside so we can get some real conservatives on the court. I am sure you disagree with this but its why elections are important.

[Specter]

But AL,

The judicial acitivism wasn't in Kelo. It was prior when the definition of public use was broadened. That is where the new path was taken.

[Specter]

Here is what Justice O'Connor wrote (and it is kind of different in meaning that what you have been saying AL):

Today the Court abandons this long-held, basic limitation on government power. Under the banner of economic development, all private property is now vulnerable to being taken and transferred to another private owner, so long as it might be upgraded–i.e., given to an owner who will use it in a way that the legislature deems more beneficial to the public–in the process. To reason, as the Court does, that the incidental public benefits resulting from the subsequent ordinary use of private property render economic development takings “for public use” is to wash out any distinction between private and public use of property–and thereby effectively to delete the words “for public use” from the Takings Clause of the Fifth Amendment. Accordingly I respectfully dissent.

[Gary Maxwell]

Gary, I can say with some certainty that politic pressures will insure that eminent domain is never used to construct adult video stores.

AL you do understand the technique of exageration for the sake of emphasis, dont you? Not sure because you have at least twice responded to my comments is a very literal fashion. When public purpose is in the eye of the beholder, we are at great risk where I believe the founders never envisioned and certainly never intended any risk.

[Anonymous Liberal]

Cathy,

I appreciate your post. It was informative. I remember my grandfather (oil industry guy) telling me about how they built pipelines once. It's a pretty creative solution.

I think that there are some situations, however, where even these creative solutions can't solve the problem. This is particularly true where the number of potential sites is very limited, or when it is important that a specific site be redeveloped. In those situations, redevelopment would often be impossible without at least the threat of eminent domain looming in the background.

[Gary Maxwell]

Specter

You mean Justice O and I worte the same thing?

OH Mr. AL appears at least one of the minority shares my exact thoughts.

Did anyone else join specifically in Justice O's dissent?

[Anonymous Liberal]

Gary,

I understand that you were exagerating for effect, but my point was that there is a natural limitation on the abuse of eminent domain power. It's just political not judicial.

Specter,
Your quote from O'Connor doesn't contradict what I wrote. The fact remains, even the dissenters would not have done away with economic redevelopment as a valid public use. O'Connor would simply have limited eminent domain use for economic redevelopment to poor neighborhoods. I think that's an arbitrary distinction to draw and I think there's not textual basis for it. I also think it would be bad policy.