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
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.
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
Posted by: clarice | February 21, 2006 at 09:02 AM
Go figure.
Posted by: Gary Maxwell | February 21, 2006 at 09:15 AM
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).
Posted by: Cecil Turner | February 21, 2006 at 09:51 AM
A h/t to you TM http://americanthinker.com/comments.php?comments_id=4509
And another NAG NAG NAG about the book.
Posted by: clarice | February 21, 2006 at 09:58 AM
It may well be what she saw in him.
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Posted by: kim | February 21, 2006 at 10:07 AM
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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Posted by: kim | February 21, 2006 at 10:11 AM
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!!!
Posted by: noah | February 21, 2006 at 10:15 AM
in a lather about Roberts/Alito
Posted by: noah | February 21, 2006 at 10:17 AM
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!
Posted by: Specter | February 21, 2006 at 10:18 AM
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.
Posted by: noah | February 21, 2006 at 10:22 AM
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?
Posted by: noah | February 21, 2006 at 10:26 AM
Another trick is for local government to own the land, but build housing for sale on longterm leased land.
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Posted by: kim | February 21, 2006 at 10:35 AM
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.
Posted by: Specter | February 21, 2006 at 10:35 AM
geverment? Sheesh I need more coffee
Posted by: Specter | February 21, 2006 at 10:38 AM
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.
Posted by: Sue | February 21, 2006 at 10:44 AM
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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Posted by: kim | February 21, 2006 at 10:52 AM
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:
Posted by: Specter | February 21, 2006 at 10:58 AM
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.
Posted by: maryrose | February 21, 2006 at 11:48 AM
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
Posted by: clarice | February 21, 2006 at 12:00 PM
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.
Posted by: Anonymous Liberal | February 21, 2006 at 12:02 PM
The 'public use' terminology has morphed. That is the issue, not whether eminent domain is constitutional or not.
Posted by: Sue | February 21, 2006 at 12:06 PM
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.
Posted by: Specter | February 21, 2006 at 12:21 PM
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.
Posted by: davod | February 21, 2006 at 12:33 PM
Excellent, Spector, Sue, et AL. I am dangerously knowledgable about the subject, now.
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Posted by: kim | February 21, 2006 at 12:37 PM
Are some Habitat for Humanity houses being built on land in a long term lease from a municipality?
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Posted by: kim | February 21, 2006 at 12:42 PM
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.
Posted by: Gary Maxwell | February 21, 2006 at 12:44 PM
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.
Posted by: maryrose | February 21, 2006 at 12:45 PM
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.
Posted by: Anonymous Liberal | February 21, 2006 at 12:59 PM
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.
Posted by: Gary Maxwell | February 21, 2006 at 01:24 PM
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.
Posted by: Rick Ballard | February 21, 2006 at 01:38 PM
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.
Posted by: Anonymous Liberal | February 21, 2006 at 01:59 PM
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.
Posted by: Gary Maxwell | February 21, 2006 at 02:10 PM
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.
Posted by: Barney Frank | February 21, 2006 at 02:12 PM
"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?
Posted by: Ranger | February 21, 2006 at 02:14 PM
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."
Posted by: Anonymous Liberal | February 21, 2006 at 02:17 PM
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.
Posted by: Anonymous Liberal | February 21, 2006 at 02:18 PM
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.
Posted by: Anonymous Liberal | February 21, 2006 at 02:28 PM
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 :-)
Posted by: cathyf | February 21, 2006 at 02:35 PM
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.
Posted by: Barney Frank | February 21, 2006 at 02:50 PM
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.
Posted by: Extraneus | February 21, 2006 at 02:57 PM
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.
Posted by: Gary Maxwell | February 21, 2006 at 03:03 PM
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.
Posted by: Anonymous Liberal | February 21, 2006 at 03:21 PM
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.
Posted by: Anonymous Liberal | February 21, 2006 at 03:24 PM
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.
Posted by: Gary Maxwell | February 21, 2006 at 03:29 PM
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.
Posted by: Specter | February 21, 2006 at 03:32 PM
Here is what Justice O'Connor wrote (and it is kind of different in meaning that what you have been saying AL):
Posted by: Specter | February 21, 2006 at 03:39 PM
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.
Posted by: Gary Maxwell | February 21, 2006 at 03:40 PM
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.
Posted by: Anonymous Liberal | February 21, 2006 at 03:41 PM
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?
Posted by: Gary Maxwell | February 21, 2006 at 03:43 PM
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.
Posted by: Anonymous Liberal | February 21, 2006 at 03:50 PM
Gary,
O'Connor's opinion (she wrote the dissenting opinion in Kelo) has a lot of lofty rhetoric, but when push came to shove, the dissenters weren't willing to conclude that economic redevelopment was never a valid public use. They weren't willing to re-examine Berman v. Parker.
Posted by: Anonymous Liberal | February 21, 2006 at 03:54 PM
Davod, there are deed restrictions on Habitat house to keep owners from selling them for quick profit or even refinancing them to get cash out (Many were losing homes at higher interest rates) In areas where housing prices have increased greatly real estate taxes threatened to be more than people could pay people were able to use the sale restiction on their homes to reduce fair market value.
Posted by: PaulV | February 21, 2006 at 03:59 PM
AL,
"The dissenting opinion AGREED that economic redevelopment is a valid public use."
Well yes, seemingly all justices feel a greater allegience these days to precedent than the constitution, but that does not address the issue of whether the precedent is in alignement with the constitution.
You are arguing on a narrow utilitarian and legalistic plank. I am making the broader point that this process of the SCOTUS amending the constitution through their own lens of interest is not a proper exercise of their power, conservative and liberal alike.
The concept of stare decisis has become little more than the process by which the national government usurps the powers reserved to the states and the people respectively and accretes it to itself.
Which of course is why 'liberals' are so overjoyed at its triumph.
Posted by: Barney Frank | February 21, 2006 at 03:59 PM
AL
You may be right that everyone of the "NO" votes on Kelp may have allowed some limited exceptions to overcome a bias towards concluding "public use" means "public use only" and not as it has become: "public purpose." I am not sure how you know this but I will grant it is possible. But to try to conclude that what I have said is far from what the minority of court said, appears to be more than a bit disingenuous.
Posted by: Gary Maxwell | February 21, 2006 at 04:00 PM
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.
Posted by: Anonymous Liberal | February 21, 2006 at 11:18 AM
But I thought the entire logic behind the majority opinion was that the township had a "well developed plan" for the use of the property. Justice Stevens' "unwise" comment would seem to imply that he fundimentally disagreed with the logic of the majority opinion.
Posted by: Ranger | February 21, 2006 at 04:02 PM
But I thought the entire logic behind the majority opinion was that the township had a "well developed plan" for the use of the property. Justice Stevens' "unwise" comment would seem to imply that he fundimentally disagreed with the logic of the majority opinion.
Maybe so. I can't read Stevens mind. But his quote doesn't seem to indicate that. Kelo turned on an interpretation of one sentence in the constitution, not a policy analysis of the development project itself. It's perfectly fair for a judge to say he disagrees with something on a policy level, but thinks it is nevertheless constitutional. In fact, conservatives are always complaining when judges fail to do this.
Posted by: Anonymous Liberal | February 21, 2006 at 04:14 PM
But to try to conclude that what I have said is far from what the minority of court said, appears to be more than a bit disingenuous.
I wasn't attempting to be disingenous. I was merely pointing out that the position you expressed was inconsistent with Berman and that even the dissenters in Kelo agreed with Berman ("The Court's holdings in Berman and Midkiff were true to the principle underlying the Public Use Clause")(dissenting opinion, O'Connor, J.). My contention is that once you allow Berman (which I think was correctly decided based on the text of the constitution), there is no logical place to draw a line. That line-drawing exercise should be left to the political branches.
Posted by: Anonymous Liberal | February 21, 2006 at 04:24 PM
In some ways I beg to differ with you AL. Justice O'Connor does not say that the precedent was set and we should follow it in the idea of "public use". Here is more of her opinion:
In this part of her opinion Justice O'Connor does state that, if a legislative body has put in place plans to redevelop an area, then individual pieces in that development must be taken as part of the whole rather than individually. In that, this case is similar to Kelo. But note, that her opinion is clearly stated, "Are economic development takings constitutional? I would hold that they are not." More of her opinion:
Note that in this case we are dealing with the opposite end of the spectrum. The land was taken from the rich and given to the poor. Finally:
It seems to me that her argument is that the court has gone beyond the original intent of "public use". Remember, this was a narrow vote though and it could have gone either way. It was not a slam dunk.
Posted by: Specter | February 21, 2006 at 04:30 PM
But - as I said before - in the case of precedent they made the right decision and also the right decision in turning the issue back to the sates.
Posted by: Specter | February 21, 2006 at 04:31 PM
Well, Justice Stevens wrote the majority opinion, specificly justifying them by saying:
The takings before us, however, would be executed pursuant to a “carefully considered” development plan.
Then turns around two months later and says that the communites decisions were "unwise."
That seems a little troubling. To use a favorite construction from recent deicsions, on the one hand, Justice Stevens finds that the takings are justified because the plan that nessessitates them is "carefully considered”, but on the other hand, their plan was also "unwise". So, I guess what he is saying is local government can take your property provided it thinks it will make things better, no matter how stupid that thinking is.
Posted by: Ranger | February 21, 2006 at 04:37 PM
Maybe he is laying the groundwork for those trying to take his property?
Posted by: Specter | February 21, 2006 at 04:38 PM
Ranger,
Your trying to create contradiction where none is necessary. You can believe that someone carefully considered something and still believe they came to the wrong conclusion. There's nothing inconsistent about that.
In fact, Kelo was a quintessentially conservative opinion. It was an example of the Court refusing to step in and regulate what is quite clearly a local issue. Do you really want the courts to be making all of these very difficult calls? That seems very un-conservative.
Posted by: Anonymous Liberal | February 21, 2006 at 04:48 PM
"Carefully considered but unwise". That certainly is comforting is it not?
Posted by: Gary Maxwell | February 21, 2006 at 04:51 PM
It seems to me that her argument is that the court has gone beyond the original intent of "public use". Remember, this was a narrow vote though and it could have gone either way. It was not a slam dunk.
Specter, I think that is a totally fair characterization of her opinion. This issue was far from a slam dunk. But I do think it was correctly decided. O'Connor essentially wanted to impose an "extraordinary circumstances" requirement on the use of eminent domain for economic redevelopment. I think that standard is difficult to justify as a textual matter and would be bad policy. It would encourage litigation and discourage political efforts to solve the eminement domain issue.
Posted by: Anonymous Liberal | February 21, 2006 at 04:53 PM
In fact, wherever somebody has a constitutional dispute that the supreme court gets involved in there has to be some hard-to-draw arbitrary line. If the case were a "no brainer" then it would never make it out of the lower courts.
cathy :-)
Posted by: cathyf | February 21, 2006 at 04:54 PM
Just a heads-up.
CSPAN is broadcasting live a discussion on International Law
and our (Living vs Unliving)
Constitution.
Scalia was there, John Yoo speaking now. Great question
- paraphase "Considering all the
different types of Governments that European countries have had
in the past century....which form
of their governments' should we
be considering?"
They, hopefully will rebroadcast tonight - then again that Katrina
hearing was great fun for BDS patients.
Posted by: larwyn | February 21, 2006 at 04:56 PM
At least some uses of the word "wise" would include "well informed". So does "unwise" as in "uninformed" or "without knowledge or good judgement" really square with Carefully Considered? I think it may be the antithesis of it, from where I sit.
Posted by: Gary Maxwell | February 21, 2006 at 04:57 PM
In fact, wherever somebody has a constitutional dispute that the supreme court gets involved in there has to be some hard-to-draw arbitrary line. If the case were a "no brainer" then it would never make it out of the lower courts.
I totally agree. Sometimes lines have to be drawn, and often the lines are arbitrary. But in some circumstances, the courts don't need to draw the line. In the example above, the court had to. Only a court can determine what constitutes a taking (and therefore requires the owner to be compensated). But in Kelo, the Court was asked to draw a line (between economic redevelopment in blighted neighborhoods and similar taking in non-blighted neighborhoods) that it didn't need to draw. That line is best left to the political branches. I think we can all agree, at least in principal, that when line drawing is unnecessary or better handled by other branches of government, the courts should avoid doing so.
Posted by: Anonymous Liberal | February 21, 2006 at 05:01 PM
AL,
I want the Supreme Court to protect my property from artibrary taking because some group of local idiots thinks it's a good idea to build a comercial building (that will generate higher taxes) where my private home sits.
Justice Stevens seems to be saying that local governments have the right to take anyone's property they want for what every hair-brained projects they want, as long as they spend a lot of time thinking about how great things will be once their hair-brained project comes to pass.
Posted by: Ranger | February 21, 2006 at 05:02 PM
AL: First, I believe Thomas had prior to Kelo disputed the "economic redevelopment" justification for the use of eminent domain. Second, even if I accept that eliminating a truly blighted area is proper use of emeinent domain, there is a non-arbitrary line between that and Kelo. In the former case, the primary justification is to solve a clear problem, rather than simply to achieve general coommunity "improvement" or economic advantage. Requiring that the major purpose behind the use of eminent domain be to solve a pressing problem places relatively strict limits on its use. Once the standard is lowered, as it was in Kelo, to merely improving the community, there are essentially no limits, since, as O'Conner pointed out, a great deal of privately held property could be put to better use from the community's point of view.
Posted by: MJW | February 21, 2006 at 05:07 PM
I want the Supreme Court to protect my property from artibrary taking because some group of local idiots thinks it's a good idea to build a comercial building (that will generate higher taxes) where my private home sits.
How would you respond to a woman who said:
"I want the Supreme Court to protect my right to decide whether or not to carry my pregnancy to term"?
If you think that is an equally compelling argument, then fine. But I suspect you don't. My point is sometimes the court isn't the proper place to turn for protection of an important interest. Sometimes it makes more sense to turn to the political branches, rather than reading things into the constitution that really aren't there. I know that sounds crazy coming from a liberal, but there you have it.
Posted by: Anonymous Liberal | February 21, 2006 at 05:13 PM
Once the standard is lowered, as it was in Kelo, to merely improving the community, there are essentially no limits, since, as O'Conner pointed out, a great deal of privately held property could be put to better use from the community's point of view.
MJW, it's not that there are no limits. It's that those limits are better set by the political branches, as is happening right now, rather than written into stone by the Supreme Court. The latter prevents any meaningful re-examination of where the line is drawn. The former allows state and local governments to experiment with where to draw the line based on experiece and based on state and local politics. Laws can be tweeked and fine-tuned. Supreme Court opinions are much more rigid.
Secondly, on a policy level, if the court were to draw the line at blighted neighborhoods, it would mean that only property owners in very poor neighborhoods would be subjected to potential abuse of the eminent domain power. As I said before, creating a system were only the poor and least influential are affected by something is a recipe for inadequate political attention. Notice how this issue is only getting political attention now that the Court has made clear that even the upper and middle classes are potentially affected by it. Things are always better addressed politically when they affect everyone.
Posted by: Anonymous Liberal | February 21, 2006 at 05:23 PM
Sometimes it makes more sense to turn to the political branches, rather than reading things into the constitution that really aren't there. I know that sounds crazy coming from a liberal, but there you have it.
Posted by: Anonymous Liberal | February 21, 2006 at 02:13 PM
Funny, cause I thought the Fifth Amendment said: "nor shall private property be taken for public use, without just compensation." But you seem to be saying that my right to property exists in direct proportion to my political power. The greater my ability to influence the political system, the greater my right to property (and other's property as well)!
Posted by: Ranger | February 21, 2006 at 05:27 PM
AL, in response to "I want the Supreme Court to protect my property from artibrary taking because some group of local idiots thinks it's a good idea to build a comercial building (that will generate higher taxes) where my private home sits" says: "How would you respond to a woman who said: "I want the Supreme Court to protect my right to decide whether or not to carry my pregnancy to term"?
Without getting into the abortion debate (which I'm loath to do) I'd say that the those who wrote the Bill of Rights specifically required that property be taken only for "public use," so undouubtably intended to protect the poster "from artibrary taking because some group of local idiots thinks it's a good idea to build a comercial building where my private home sits." On the other hand, they completely silent on the issue of abortion, so their intent can at best be inferred indirectly.
Posted by: MJW | February 21, 2006 at 05:33 PM
MJW and Ranger.
It's not at all intuitively obvious that a natural reading of the phrase "public use" excludes takings for economic redevelopment purpose. In fact, it seems that every Justice (except perhaps Thomas) reads that phrase to include some takings for economic development purposes. So this isn't a debate that can be resolved by resorting to "textualism" or "strict constructionism" or even "original intent." Indeed, examples of historical takings (for example, taking from private land owners to allow other private parties to build canals) undercuts the idea that the 5th amendment was never intended to allow such takings.
So your appeals to the language of the 5th amendment don't get us very far. The decision comes down to whether it is better for courts to attempt to differentiate between "good" economic redevelopment takings and "bad" economic redevelopment takings or better for the elected branches to do that. I submit that that is an exercise best left to the political branches.
Posted by: Anonymous Liberal | February 21, 2006 at 05:52 PM
AL: "...on a policy level, if the court were to draw the line at blighted neighborhoods, it would mean that only property owners in very poor neighborhoods would be subjected to potential abuse of the eminent domain power."
Well, I suppose one solution to preventing "potential abuse" is to decide, as the Kelo court did, that no use of eminent domain, no matter how outrageous, is "abuse."
Posted by: MJW | February 21, 2006 at 05:58 PM
AL, do you believe that the writers of the Constitution would have considered the replacement of a profitable hotel with a more luxurious hotel simply to increase a town's tax base a "public use"?
Posted by: MJW | February 21, 2006 at 06:14 PM
Well, I suppose one solution to preventing "potential abuse" is to decide, as the Kelo court did, that no use of eminent domain, no matter how outrageous, is "abuse."
This is hardly the fairest characterization of the issue. The court was essentially saying that it wasn't going to micromanage local decision-making. Why is it so obvious to you that it should? I doubt there are too many other areas where you want this sort of judicial intervention.
Second, if the dissenters had prevailed, it's not as if the potential for abuse would have gone away or even been reduced. By insuring that only the poorest and least politically influential neighboorhoods could ever be subject to that abuse, the dissenters would have made it more, not less likely that abuse would occur in the future.
Posted by: Anonymous Liberal | February 21, 2006 at 06:15 PM
AL, do you believe that the writers of the Constitution would have considered the replacement of a profitable hotel with a more luxurious hotel simply to increase a town's tax base a "public use"?
First, that's hardly the situation that was presented in the Kelo case. I can construct a scenario where economic redevelopment makes for a very compelling public use. That's why this all comes down to a line drawing exercise.
Second, it's not at all clear to me that the framers primary purpose in writing the takings clause was to limit eminent domain use by creating a rigid public/private distinction. I think the primary purpose of that clause was to insure that those subjected to the eminent domain power were fairly compensated. The abuse they were concerned about was the taking of land without compensation. Those who've researched historical takings have found many examples of takings that would not have fit a strict definition of public use. I think the framers expected states to use the eminent domain power broadly. They were primarily concerned with preventing uncompensated takings. Other abuses can be kept in check by the political system.
Posted by: Anonymous Liberal | February 21, 2006 at 06:26 PM
AL,
Gotta laugh...it is not oftern that you and I agree...LOL
Ranger, unfortunately the courts over the years have broadened the definition of "public use" from what you or I - or any reasonable person - would think. It is now, according to FindLaw:
I don't like it, but then again I don't want the federal government making all of these decisions - too far removed from the point of impact. I think that it is up to state authorities to rein in the local governments. That is why we are seeing so much legislation on this at the state level.
Posted by: Specter | February 21, 2006 at 06:29 PM
Specter,
I agree the meaning of "public use" has changed, but that does not mean the interpretations leading up to that change in meaning are correct. You seem to be arguing that once the court has started down a logical road it can never turn back.
Posted by: Ranger | February 21, 2006 at 06:42 PM
AL,
Interseting argument you make. If the desenters had prevailed, the burden would have fallen on the poor and politically unpowerful. So the answer is to leave it to the political process, where those with power get to chose who's land gets taken and who's doesn't. Heads the rich win, tails the poor lose.
Posted by: Ranger | February 21, 2006 at 06:46 PM
Again this goes back to this weakness that the current court has with real-world business dealings. If you had somebody (even a clerk) who had done real estate closings, maybe they would come to realize that many of these cases are NOT about some rarified constitutional principle, but instead simply about one party trying to rip off another party. And that the correct amount of cash changing hands means everyone leaves more or less satisfied. Which is, of course, the not-at-all-rarified principle of the takings clause.
cathy :-)
Posted by: cathyf | February 21, 2006 at 06:51 PM
Cathy,
I think you're right about the line of decisions dealing with what constitutes a taking. The Court's decisions in those cases are strange and convoluted. As to your point that the Court is notoriously bad at understanding the realities of business, I think that counsels in favor of leaving these decisions to the political branches rather than trying to draw arbitrary and rigid lines like O'Connor wanted to do in Kelo.
Ranger writes:
So the answer is to leave it to the political process, where those with power get to chose who's land gets taken and who's doesn't. Heads the rich win, tails the poor lose.
Not necessarily. My point is that, after Kelo, it's clear that the rich can be the victims as well as the takers. This creates a political incentive to rein in the power. Under the dissenters rule, only the poor are the potential victims. So the majorities way is better from a policy perspective. It results in a more robust political check on abuse of the power.
Posted by: Anonymous Liberal | February 21, 2006 at 07:00 PM
In Vermont and sometimes on Nantucket and Martha's vineyard people know how to fight these developers who I swear build on every scrap of land they can find. I am happy to see individual states fighting this Kelo decision by putting safeguards in place in their individual locales to prevent abuse of the individual homeowners.
Posted by: maryrose | February 21, 2006 at 07:28 PM
My point is that, after Kelo, it's clear that the rich can be the victims as well as the takers. This creates a political incentive to rein in the power.
Oh, you mean like when the colonial elite in North America rebelled against the Crown because it wouldn't respect their rights. I think they already took care of that when they wrote the bill of rights. But I could be wrong.
Posted by: Ranger | February 21, 2006 at 07:34 PM
Ranger,
You miss my point entirely. I believe more along the lines of O'Connor. Personally I feel that we should go back to "public use" being the original definition. Unfortuantely, the courts rarely overturn precedents. Add that to the deciding opinion of the court here, and it seems that they are trying to push it back on the states. That is fine as long as the states attempt to protect the rights.
Posted by: Specter | February 21, 2006 at 08:15 PM
I tend to be an absolutist in opposing eminent domain even for such "public uses" as roads. It should be possible to assemble the necessary right-of-ways using options and alternative routes as other posters have described for pipelines.
Nevertheless, the Constitution clearly allows for the existence of eminent domain. Just as clearly, the Fifth Amendment was intended to place restrictions upon it.
I believe the Supreme Court totally eviscerated those restrictions in the Kelo decision, and that is what I and most people are so upset about. So let's do a little thought experiment: Suppose one wanted to distinguish the use of eminent domain for a "public use" like a road from the taking of property from one private party and transfering it to another private party for economic development and increased tax revenue purposes. What amendment would you propose to the Constitution which could concisely and effectively accomplish that goal?
My contention is that the present wording of the Fifth Amendment should have been properly read as making the necessary distinction and accomplishing that goal. Given the Kelo ruling, I do not see any obvious amendment which could now be added to the Constitution which would not be subject to the same dismissive interpretation by the Supreme Court as Kelo.
Seriously, what could we add to the last sentence of the Fifth Amendment to prevent the same misinterpretation? "...and we really, really mean it this time" just doesn't seem to cut it.
Just as with the Interstate Commerce clause, the Supreme Court in Kelo has interpreted the Constitution so expansively as to render meaningless any limitations on government power that it would normally be read to impose.
Posted by: Daniel Wiener | February 21, 2006 at 09:57 PM
Daniel,
Did you bother to read all of the comments in the thread, or did you just jump in? It was not the Kelo case that set the precedent. It just reaffirmed it - unfortunately.
Posted by: Specter | February 21, 2006 at 10:06 PM
Given the Kelo ruling, I do not see any obvious amendment which could now be added to the Constitution which would not be subject to the same dismissive interpretation by the Supreme Court as Kelo.
That's just silly. How about this?
"The eminent domain power shall never be used to transfer property from one private party to another, even if such a transfer is done with a public purpose in mind."
I'm sure the language could be tweeked, but seriously, how hard would it be to make that rule clear? It doesn't seem like it would be very hard.
Posted by: Anonymous Liberal | February 21, 2006 at 10:14 PM
AL - with profuse apologies to all for length, but it just kept getting longer with every attempt at editing down!
"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."
While stipulating to the narrowness of the issue addressed in Kelo, I have to disagree with you on almost every point. While one can trace the progression of precedents which led logically to that decision, one can also see the cumulative results of an ongoing exercise in reductio ad absurbum with unusual clarity. The kind of rule-making you describe is really a subsidiary activity. States can certainly pass legislation which shapes and/or constrains public takings, but as underscored by Kelo, they can also legislate private property virtually out of existence. The Kelo-generated answer to the question of whether a municipality looking to increase tax revenues could give a modestly profitable businessman the boot, and sell his property to a more likely prospect, settled that proposition pretty explicitly.
Are we really willing to weigh precedent more carefully than the Constitution itself? That we've done so here and elsewhere and often is obvious enough, but periodic challenges to that approach have not proved unimportant. I expect that such challenges may arise sooner rather than later. Indeed, variability in eminent domain legislation could bring the pipeline construction you've mentionned to a halt, and the issue would just climb the judicial ladder under the interstate commerce clause instead. One way or another, eminent domain will ultimately end up in the Supreme Court's lap. (BTW your amendment runs smack into pipeline problems, itself)
Now I obviously think that the textual guidance in the 5th Amendment is more explicit than the precedents currently in force acknowledge. I don't see how you can assert that the 5th is not normative without nullifying the derivative requirement that takings serve a public purpose completely, rather than only partially (or selectively), as you imply. Considering that citizenship was originally vested in landowners alone, that acquisition and defense of property was central to colonial life, colonial law, and colonial justice, the idea that “the framers expected states to use the eminent domain power broadly” simply does not compute. You seem to be making an original intent argument and a living document argument at the same time!
The Constitution cites public use, not public purpose. I would rather the Supremes apply themselves to articulating an adequately expansive definition of utility than to the complex renderings they find themselves compelled to make about perceived and projected public benefits. The first, by definition, lie in the eye of the beholder, the second add a complement of potential consequences which can be impossible to anticipate, too easily discounted or inadvertently ignored. Anecdotal evidence to that effect abounds.
Assessments as to the greater or the lesser public good come dangerously close to skirting true constitutional issues altogether, as the arguments in Kelo strongly suggest. Are tax revenues to be the standard by which we determine public benefit? Are we really prepared to give for-profit private entities the defacto power to take any property they choose -- given the powerful incentive to meddle in local politics the unscrupulous will be unlikely to ignore? Surely oil refineries would have 1st dibs on beachfront property, as they serve the public itself, as well as public coffers, on multiple fronts. Will a higher good really have been served when everyone of modest means has been removed inland from our coastlines along with any otherwise desirable property? It's been happening on its own, of course, as property owners have chosen, largely at their own discretion, the benefits of the marketplace -- in which a single home owner stood at least a chance of stopping a corporate land grab, or a political taking, in its tracks. You suggest such stumbling blocks are not a good thing, but, as the saying goes, you may not think so when they come for you.
You've alluded to such changing attitudes yourself, and pointed out that Kelo offers no new protections, it widens the potential arena of abuse. I'm not sure that the line between urban renewal and Mugabe style removals was ever as distinct as its proponents would like us to think. If the "middle and upper classes" have suddenly become less sanguine about the virtues of routine economic development practices and packages, I can only applaud the consciousness-raising. All of which demonstrate just how fast & far the idea of public purposes, as opposed to public use, takes us from constitutional questions to ideological questions. I believe you see that as reason enough to address the issues in a legislative venue; while I see politicized solutions contributing to the diminution of foundational individual autonomy.
I also think what you may mistake the essence of constructivism. Strict construction is not synonymous with federalism; nor is it a preference for legislation over adjudication. It is about the process of adjudication itself and it is about checking the overextension of legislative and executive power, at any level, within constitutionally established bounds. Eminent domain, which pits the individual against both corporate and political interests, is a quintessentially constitutional issue. When the Court hands that issue off to the states, it's not about construction, it's about one searingly hot potato; the Justices know it, and they know they've only got Supreme Court precedent morphing "use" into "benefit" to blame for it. That's why the positioning of individual justices within the Kelo majority and dissent makes little philosophical sense.
Posted by: JM Hanes | February 21, 2006 at 11:14 PM
That's just silly. How about this?
"The eminent domain power shall never be used to transfer property from one private party to another, even if such a transfer is done with a public purpose in mind."
Not so silly. Suppose the USSC then ruled that a local government could take title to the property and then at some future time transfer it to a different private party? That wouldn't be directly "transferring property from one private party to another".
Is that a far-fetched, strained interpretation? No more so than what the Court did in Kelo. Can you come up with better wording? Probably, but I'm not convinced it will be any less vulnerable to a Court which is determined to twist the plain text of the Constitution.
Posted by: Daniel Wiener | February 21, 2006 at 11:18 PM
Comment in re 5th Amendment above may be confusing. To clarify:
"without nullifying the derivative requirement that takings serve a public purpose completely"
should probably read
"without completely nullifying the derivative requirement that takings serve a public purpose"
Posted by: JM Hanes | February 21, 2006 at 11:24 PM
JM Hanes,
I appreciate your response. It's well-thought out. A few points: I think most of the parade of horrors that you describe (oil companies taking the beaches, etc.) are more than adequately contrained by political checks. If eminent domain use gets out of control, people will react. They'll vote the offenders out of office and pass laws contraining its use. As current events illustrate quite well, even minor abuses of this power (New London) can provoke a major public backlash. That's why this is best left in the hands of the political branches.
Second, unless you are willing to read the Takings Clause so as to exclude ALL takings for economic redevelopment purposes (i.e. go back to pre-Berman), you still have the line drawing issue to deal with. And I just don't think it makes sense for the courts to be drawing such arbitrary lines, especially when the political branches can more adequately and flexibly strike the necessary balance.
And finally, if you do go back to a pre-Berman understanding, you still have the practical issues to deal with, i.e., how do you get around the opportunism problem when it comes to major development projects?
Posted by: Anonymous Liberal | February 22, 2006 at 12:02 AM
AL, you seem to think the need for line-drawing is a significant argument against any interpretation of the taking clause narrower than Kelo. I disagree. The just-compensation provision assures that the courts will have an on going role in the application of the taking clause. Furthermore, every other right granted by the Constitution, from free speech, to religion, to the right to assemble, to the right to due process requires drawing lines. Why should property rights be different? Kelo abandoned the last reasonable line that could be drawn: that the primary "public purpose" achieved must be something beyond economic development. Your view that the right to private property can safely be left to the discretion of legislative bodies is as reassuring to me as the notion that our First Amedment rights can be entrusted to the legislature.
Posted by: MJW | February 22, 2006 at 01:10 AM
OT - Scalia today at AEI function
on International Law used to justify opinions in U S Courts
was broadcast on CSPAN.
Just watched the open questions
segment tonight. Sadly, I did not
catch the University Law School that supplied the "young" persons
at this event. They were certainly a disgrace to their school and if these are the crop
of the future Constitutional Law
scholars - we are in big trouble.
It was embarassing. Hope you all have an opportunity to watch it.
Posted by: larwyn | February 22, 2006 at 01:29 AM
Daniel Wiener wrote:
Not so silly. Suppose the USSC then ruled that a local government could take title to the property and then at some future time transfer it to a different private party? That wouldn't be directly "transferring property from one private party to another".
Is that a far-fetched, strained interpretation? No more so than what the Court did in Kelo.
It isn't even hypothetical. I grew up in Los Angeles, specifically in a suburb called Westchester just north of LAX. In the 1960s the city of Los Angeles tried for several years to condemn about half of Westchester, citing the extreme danger of having a populated area so close to an airport. Good heavens, what if an airliner were to go off course and crash? It would be a horrendous tragedy! So as a matter of public safety they had to condemn that land. They finally succeeded, and something like 3500 homes were bulldozed.
And the land sat empty ... for two or three years. Then the city suddenly "discovered" it owned a bunch of unused, valuable property right next to a major airport. It didn't take long for high-rise hotels and office buildings to sprout on that land like toadstools after a rain.
Posted by: Mike G in Corvallis | February 22, 2006 at 02:10 AM
I was actually trying to trim the parade of horrors when I gave up the ghost and just put up the post, but as you will see below, they just keep coming..:)
Oddly enough, what Kelo suggested to me was that potential horrors were not being adequately constrained by political checks at all. Unfortunately, public outrage generally occurs ex post facto, when folks, as in ex post Kelo, face the realization that an imagined list of horrors can actually happen because it already has. The Court can certainly encourage the states to legislate lines and checks, but such legislation will itself be challenged, and will still end up on the Supreme Court doorstep. It will just arrive city by city by state by state by state.
I believe you seriously underestimate the potential for political corruption, when money-making enterprises of all sorts and sizes have such a direct, discernable, financial stake in the elected officials who will bless or condemn their projects, and/or determine when the fair market burden has been met. The potential for political degradation doesn't stop there however, especially in a system where incumbents have gained such an undeniably lopsided advantage.
Sans any normative reading of the the 5th Amendment, we'll need legislation covering a whole lot more than takings for economic development. Think environmental improvements, or greenswards where unpopular citizens reside, think anything that would increase the taxable value of your property at someone else's expense. When the Highest Court signals that it's not prepared to draw the lines, lower courts will be flooded by everyone who comes up with a way to test such limits. Ironically, the Court has proved so willing to draw lines in the name of interstate commerce, that they managed to open the very door they've slammed on eminent domain.
I have a rather jaundiced view when it comes to the actual vs. the putative value of much of what passes for economic development so I'm naturally conservative as to what should constitute a valid taking. I certainly think it can be hard to argue that something like a shopping center, for example, doesn't get viable public usage, or that a pipeline isn't of demonstrable utility to the public, even if not strictly speaking a public utility. Beyond that I'd lobby for saying pay the asking price or move on.
As a political matter, I think it's unwise to put all our eggs in the trickle-down economics basket, particularly when it comes to takings where the trickle will patently fail to reach the dispossessed. A lot of the folks who feel so newly threatened at the moment will, in reality, be the last folks in the crosshairs because for a host a reasons, not exclusively economic, they will always be better represented than those who have always been at risk, and conceivably more so, the further down the ladder of government you go.
I don't think I've directly addressed a couple of your points, but I think I've tested both the limits of the thread along with my own today. The questions are challenging, and for the perspective of someone like me who lists toward complexification (new fav word via Jay Rosen) you frame them with gratifying clarity -- and dismaying speed.
Posted by: JM Hanes | February 22, 2006 at 03:18 AM
Specter,
I do get your point, but 4 Justices clearly thought the courts had traveled too far down this particular logical road, and wanted to at least stop the trip if not turn the whole direction of travel back the other way. It obviously can be argued that the majority in this case were "right on the law" because of precident, but also be argued that "the law is wrong in how it interprets the Constitution."
I am also deeply troubled by a Justice legitimzing his decision by repeatedly refereing to how well considered the plan being challenged is, then two months later calling that same plan "unwise."
Posted by: Ranger | February 22, 2006 at 08:56 AM
Maybe a guilty conscience will hound him into retirement.
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Posted by: kim | February 22, 2006 at 09:03 AM