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View Full Version : SCOTUS wrong wrong wrong!!!


Judy G. Russell
June 23rd, 2005, 11:11 PM
I don't usually find myself in agreement with Rehnquist, Scalia and Thomas, but this time they joined with Justice O'Connor in an opinion I agree with in its entirety -- and I disagree with the five-member majority.

The case involves the City of New London CT which wants to allow a private developer to do a major redevelopment of some waterfront property to include condos and office buildings and the like. The idea is that the redeveloped property will produce significant tax benefits to the city. So far so good. The hitch is that there are already private land owners in the affected area, and they're not interested in giving up their homes to the private developer. (Those objecting to this "take from me and give to him" scheme include a woman born in 1918 -- in the house where she still lives and which her family has owned for more than 100 years. Her husband has lived with her in that house since they were married -- 60 years ago.)

So the City wants to use its power of eminent domain and take the property away from the existing owners and turn it over to the private developer.

Uh... no. I cannot conceive in a million years that the Takings Clause of the Fifth Amendment that allows a municipal or state government (or the feds, for that matter) to take private property for public use includes the right to take it from one private owner and giving (or selling) it to another private owner. Nope nope nope.

Justice O'Connor has it right: "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."

This is a simply terrible decision. If Congress feels compelled to go monkeying around with the Constitution (there is the usual move afoot to amend the Constitution to eliminate flag-burning from the protections of the First Amendment), it would be well-advised to put a stop to this kind of misreading of the Fifth Amendment.

Bad move, folks. Very bad move.

Mike
June 24th, 2005, 01:59 AM
D'accord. As I heard the story on the news, I was wondering what they'd been smoking.

Judy G. Russell
June 24th, 2005, 10:20 AM
I had the same sort of reaction myself. I can't imagine what they were thinking on this. To allow a city to elevate a private development plan over someone else's private property right? Huh?

davidh
June 24th, 2005, 11:08 AM
We lost an eminent domain fight with Swiftmud (SWFWMD). But we are afraid of precisely this type of thing. That is, now that the gov't has the land, they will later sell it to developers AT A HUGE PROFIT.

Perhaps I was under the mistaken impression that "liberal" jurists were more likely to disdain the constitution and such concepts as right and wrong. But perhaps the real power belongs only to the high priests of spin-doctoring who have enough money to hire lawyers and advertize in media, no matter what their political party or profession.

Maybe in 100 years we'll have all historical documents and artifacts 100% digitized so that anybody with enough money and influence will be able to literally rewrite history and put whatever spin they want on it. With fines and prison for anyone who distributes non-official versions of history.

David H.

Jeff
June 24th, 2005, 01:03 PM
There are too many black robes in the west and too many orange robes in the east.

At the moment five too many in the west.

- Jeff

woodswell
June 24th, 2005, 01:31 PM
Judy, As a property owner I find this very scary. Say some developer wants to buy my farm. They would have no reason to offer fair market value - just have it taken away from me through eminent domain and buy it from the county at a cut rate. This is NOT in the public interest - it is solely in the developers' interest!

I've been thinking of investing in property - but now I will rethink my investment strategy. Maybe go outside the US - somewhere where MY property rights will be respected.
Anne

davidh
June 24th, 2005, 02:05 PM
I heard on the radio today that the governor of Utah signed a law on Mar 17 that would block eminent domain except for strict "public use". i.e. developers should not be able to use local gov't to steal land.

However, I wonder if this would have much benefit. As long as a developer can get the land cheaper in court than on the market, then why wouldn't the developer just fight all the way to the supreme court to steal the land? Maybe there's some clause regarding powers of states in the constitution that would theoretically prevent such a case from going to the supreme court. However, if they could find the right lawyers to argue the case and the right judges to hear the case, maybe they could go all the way to the supreme court and deal a death blow to another clause of the constitution, in addition to the fifth amendment.

Somehow, the phrases "rule of law" and "fiat" begin to sound ominous. Maybe I should switch from Catholic to Greek, Russian, Syrian, or Coptic Orthodox, just in case they ever read the story of the Annunciation from the ancient translations, I won't ever have to hear it in Latin :-(

My wife risked her family's lives to escape from Vietnam by boat in 1980, but since the Fed and State and County gov't started attacking us personally in the early 90's she's been wondering who is more tyrannical -- USA or communist Vietnam? At least, as far as I know, the US gov't hasn't started cooperating with organized crime to export women as sex slaves to help our balance of payments, so maybe it'll be a few more years before the USA descends to the level of corruption of Vietnam.

David H.

davidh
June 24th, 2005, 02:13 PM
too many orange robes in the east.


I'm not up to date on colors. What is orange for? The latest I've heard about color orange is from Ukraine and Gush Katif. Before that, the Ulstermen in Belfast.

David H.

Judy G. Russell
June 24th, 2005, 03:38 PM
we are afraid of precisely this type of thing. That is, now that the gov't has the land, they will later sell it to developers AT A HUGE PROFIT.
The concurrence (by Justice Kennedy) went out of its way to insist that that sort of thing wouldn't happen ("A court applying rational-basis review under the Public Use Clause should strike down a taking that, by a clear showing, is intended to favor a particular private party, with only incidental or pretextual public benefits"). To which I cynically reply: "Yeah. Right."

Judy G. Russell
June 24th, 2005, 03:40 PM
I don't think any other country is likely to protect your proerty rights any more -- if anything, property isn't considered sacrosanct nearly as much in most places. But it really bothers me to think that -- for example -- one middle class family with its long-held farm or business or home could be forced out simply because someone else wants to do something else with the land (other than a pure public use like a road or airport or park). It's just wrong.

Judy G. Russell
June 24th, 2005, 03:43 PM
I heard on the radio today that the governor of Utah signed a law on Mar 17 that would block eminent domain except for strict "public use". i.e. developers should not be able to use local gov't to steal land. However, I wonder if this would have much benefit. As long as a developer can get the land cheaper in court than on the market, then why wouldn't the developer just fight all the way to the supreme court to steal the land?
No, the developer doesn't have the right to go to court to compel the use of the power of eminent domain; only a governmental unit (town, city, county or state, for example) has the power to declare a taking under the Fifth Amendment. For that reason, a state law barring it would be effective (in that state).

davidh
June 24th, 2005, 05:44 PM
only a governmental unit (town, city, county or state, for example) has the power to declare a taking under the Fifth Amendment

Well, sounds like that would slow them down. But I wonder if a developer who had enough friends in city or county gov't could persuade the locals to sue in state court that the state law was unconstitutional according to state or federal constitution?

Paranoid in Podunk

David H.

Bill Hirst
June 24th, 2005, 06:04 PM
Well, sounds like that would slow them down. But I wonder if a developer who had enough friends in city or county gov't could persuade the locals to sue in state court that the state law was unconstitutional according to state or federal constitution?

Paranoid in Podunk

David H.
How long will it be before the political party symbols are Star (Wal*Mart) and Circle (Target), and Sony owns all the national parks?

Judy G. Russell
June 24th, 2005, 06:54 PM
A law protecting property rights would not likely be unconstitutional; the question rather is whether a law invading such rights is constitutional.

Judy G. Russell
June 24th, 2005, 06:55 PM
You mean Sony DOESN'T own them?

Lindsey
June 24th, 2005, 10:43 PM
I don't usually find myself in agreement with Rehnquist, Scalia and Thomas, but this time they joined with Justice O'Connor in an opinion I agree with in its entirety -- and I disagree with the five-member majority.
Well, in all fairness, I think this was a hard case (and the old adage about hard cases making bad law is probably true as well). This is an economically depressed area that lost a naval base in 1996, eliminating 1500 jobs in a community of only 24,000. They had an opportunity to develop 90 acres of waterfront property, including the 32 acres formerly occupied by the base, and adjacent to a $300 million Pfizer research center, generating hundreds of jobs and nearly $700,000 in property tax revenue. Standing in the way of the project were 15 homeowners on one and a half acres of land.

That's not to say I'm entirely comfortable with the decision, because I do have sympathy with those homeowners whose property was not in the least blighted, and who, for a variety of reasons, wanted to hold onto their homes. But the potential benefits of the development to the community as a whole are also quite clear. I don't think this is an obvious case of abuse of emminent domain; I do think there is at least an argument to be made that the project is a proper use of that power. At the same time, I have the same concern that O'Conner expressed with the expansion of the power of governments to take private land. I guess I wish this had been a more restrictive decision, with some bright lines drawn as to when emminent domain could properly be used to transfer property from one private party to another.

--Lindsey

Judy G. Russell
June 25th, 2005, 12:30 AM
Personally, I simply don't buy the argument that "Public Use" means "not this private owner, but that private owner instead".

Dan in Saint Louis
June 25th, 2005, 09:01 AM
SCOTUS DOOFUS

Judy G. Russell
June 25th, 2005, 11:19 AM
Doofuses for sure in this case. I just can't buy it: saying one private owner is better than another, where there isn't an issue of blight. I don't buy it, nope nope nope. I don't care if Walmart or Target can't find a big enough site in an urban area. I don't care if the town would get more tax dollars from a condo complex than from private homes. Taking private property from one private owner and giving it to another for private use is wrong.

Jeff
June 25th, 2005, 01:14 PM
I'm not up to date on colors. What is orange for? The latest I've heard about color orange is from Ukraine and Gush Katif. Before that, the Ulstermen in Belfast.

David H.

Monks, usually lower orders and usually Buddhist.

- Jeff

Dan in Saint Louis
June 25th, 2005, 02:28 PM
One would be tempted to compare governing styles that protect the citizens to those that favor big businesses, would one not? But of course we would never do that here.......

davidh
June 25th, 2005, 04:19 PM
Monks, usually lower orders and usually Buddhist.

- Jeff

Supposedly, Moses who was once chief justice of a high court was the most humble of all men. And the Buddhist monks in India once had to eat whaterver was placed in their begging bowls by the householders.

Now the householders have to go with begging bowls to bow before the robes and suits.

David H.

Judy G. Russell
June 25th, 2005, 06:38 PM
But of course we would never do that here.......
R-i-i-i-g-h-t...

Bill Hirst
June 26th, 2005, 01:21 PM
Monks, usually lower orders and usually Buddhist.

- Jeff

Also prisoners in many jails.

Jeff
June 26th, 2005, 01:51 PM
Also prisoners in many jails.

Ah, you mean like these?

http://news.bbc.co.uk/2/hi/south_asia/4083224.stm

- Jeff

Bill Hirst
June 26th, 2005, 01:56 PM
More like these:

http://news.bbc.co.uk/1/hi/world/americas/1807957.stm

Lindsey
June 26th, 2005, 10:03 PM
Personally, I simply don't buy the argument that "Public Use" means "not this private owner, but that private owner instead".
I understand what you're saying, and in general I agree with you, but I'm not sure this case is quite that simple. Let's face it: most public use projects are public-private ventures these days. That private developers are involved does not in and of itself make it a private project.

--Lindsey

Dick K
June 27th, 2005, 12:13 AM
It's just wrong.
Judy -

I could not agree with you more strongly. The issue is not that the government will take the property from its current owner and resell it at a higher price (one has to assume that the compensation for eminent domain seizure will be at a market price), but rather that the property is being appropriated for something other than true public use. As you have pointed out, that is both scary and wrong.

I cannot wait to see how the "moderate" left will spin this one.

Judy G. Russell
June 27th, 2005, 08:27 AM
I cannot wait to see how the "moderate" left will spin this one.
Since I consider myself to be a moderate left-leaner, you know how I've "spun" it.

Judy G. Russell
June 27th, 2005, 08:30 AM
I don't have a problem with simply having a private entity involved. It's the USE of the property I object to. Letting government take property for a road or a park or a nuclear sub base, that's one thing, with or without some private involvement. But what in the world gives government the right to say "your private use of the property for your home is bad, his private use of the property for a condo and office complex is good"?

Jeff
June 27th, 2005, 12:36 PM
More like these:

http://news.bbc.co.uk/1/hi/world/americas/1807957.stm

Well yeah, robes can be made into jumpsuits, which was kinda my lame point.

- Jeff

Lindsey
June 27th, 2005, 04:21 PM
It's the USE of the property I object to. . . . [W]hat in the world gives government the right to say "your private use of the property for your home is bad, his private use of the property for a condo and office complex is good"?
The question in this case, as I understand it, was not whether governments can use eminent domain to benefit one private entity over another, but how broadly the term "public use" should be construed. The Connecticut Supreme Court had decided that New London's redevelopment plans constituted a valid public use and justified the use of eminent domain; the US Supreme Court agreed. And that decision, if I understand correctly what commentators have been saying, is perfectly in line with the direction that Court decisions have been headed on this issue for many years.

Now: if the people of Connecticut don't like that definition of public use, they are perfectly free to press their legislators to put tighter restrictions on when eminent domain can and cannot be used in their state. (Connecticut law, apparentlly, specifically authorizes the use of eminent domain for purposes of economic development.)

It's not that I'm entirely comfortable with this decision, because I'm not. It's just that I see it as a difficult issue that could reasonably have been decided either way, and not one that is so clear-cut that it justifies calling the Court majority stupid or wrongheaded.

By the way, I was mistaken that it was 15 homeowners: the property in question constituted 15 parcels (out of 115 in the full neighborhood), but those 15 parcels were in the hands of only 7 owners.

--Lindsey

Dick K
June 27th, 2005, 04:59 PM
Since I consider myself to be a moderate left-leaner, you know how I've "spun" it.
Judy -

You did not spin it; you took a reasoned and principled stand. There is a big difference between being faithful to one's principles on the one hand and looking for rationales for behavior simply because that behavior has been exhibited by those who are identified with one's party. What I had in mind when I mentioned the spin were the doctrinaire left-wingers who would find (and apparently have found) that they could hold their noses and proclaim this legal travesty was really OK, because the unabashedly bold property seizure was somehow "in the public interest," even though it involved a naked transfer of property from one private owner to another, simply because the latter would pay more taxes.

Curiously, many of those who, with varying degrees of enthusiasm, are acquiescing in this trampling of minority rights were--just a few weeks ago--earnestly arguing that preservation of the Senatorial filibuster was absolutely essential if we were to protect...minority rights!

chm
June 27th, 2005, 05:05 PM
Agree, Judy. It seems an amazingly bad decision.

Why take away those houses of those folks in New London? (Two households didn't want to sell, as I recall.) The town's justification is inadequate, IMHO.

Mostly, I fear the possible results of this Supreme Court decision.

For instance, already houses of worship are feeling threatened. After all, they don't generate taxes for their cities, do they?

Where's the rights of the individual?

This decision seems rather un-American to me, somehow...

Carolyn

Judy G. Russell
June 27th, 2005, 05:09 PM
What really bothers me about this decision is that it validates what Target and Wal-Mart are doing: getting towns to condemn little shops and homes to give them the room they need for their mega-stores. Huh? Say wha'?

This is just wrong.

chm
June 27th, 2005, 05:14 PM
What really bothers me about this decision is that it validates what Target and Wal-Mart are doing: getting towns to condemn little shops and homes to give them the room they need for their mega-stores. Huh? Say wha'?

This is just wrong.
Just another one of the possible nightmare scenarios which could result.

I'm with Mike King: What were these people smoking?! :mad:

Judy G. Russell
June 27th, 2005, 05:16 PM
Not could result; has resulted already. Wal-Mart has already gotten towns to use eminent domain to (essentially) clear space for them. What I'm afraid of is that this will just accelerate that.

Judy G. Russell
June 27th, 2005, 05:17 PM
I hear you, and I have some real trouble with the inconsistency myself.

chm
June 27th, 2005, 05:19 PM
I cannot wait to see how the "moderate" left will spin this one.

You and me both.

Over-all, I'm a moderate, with a lean to the left, and I'll tell you I don't like this at all.

BTW, CNN's Lou Dobbs did one of his nightly polls to find out what his viewers thought of the decision: overwhelmingly negative was the result.

Carolyn

Judy G. Russell
June 27th, 2005, 05:21 PM
I understand the issue, but I don't think it's one that should have been thought, for a moment, as one that could reasonably have been decided either way. To define "public use" to mean "more tax dollars" is frightening.

chm
June 27th, 2005, 05:22 PM
Oh.

Scary.

MollyM/CA
June 27th, 2005, 08:53 PM
We lost an eminent domain fight with Swiftmud (SWFWMD). But we are afraid of precisely this type of thing. That is, now that the gov't has the land, they will later sell it to developers AT A HUGE PROFIT.


This happens all the time in the Bay area. Today's Open Space District or other city (for example) land is tomorrow's development, usually bit by bit. We see that end because we do the biological assessments but now I wonder what the cities/counties/Districts paid for the land --fair price? Some other kind of reasonably fair deal? Some of it's been in Open Space or something similar for decades and decades --maybe the land was traded for taxes owed or something like that.

Linda Dulak, who I think used to show up in the old forum once in a blue moon, made quite a study of the actual effect of enlarging towns (in the interests of maintaining their own property values and quality of life) and says that the net effect is almost always a much poorer town. That's certainly been the case in my own town, where a few "Gotta Get Biggers" tried to jump the population from about 3500 to 35, 000 in less than 10 years --the economic effect was so drastic that the real estate people are now trying to slow expansion; the town's all but bankrupt even with the drastic effective decrease in services. (And still the most expensive town in the Valley, because everyone thought it was such a nice place to live, with its peace-generating blue laws and its 19 churches and one bar and all the farmland. Naturally all the above are now under attack by the newcomers.)

MollyM/CA
June 27th, 2005, 09:01 PM
How long will it be before the political party symbols are Star (Wal*Mart) and Circle (Target), and Sony owns all the national parks?

Check out The Space Merchants (Pohl and Kornbluth) --50's science fiction featuring "the Senator from Standard Oil" and other nice but all too true touches.

Bill Hirst
June 27th, 2005, 09:50 PM
Check out The Space Merchants (Pohl and Kornbluth) --50's science fiction featuring "the Senator from Standard Oil" and other nice but all too true touches.
Or the arcologys of Pournelle and others, where each city is a single immense building where everyone lives, works, and vacations--and private ownership of land is unknown.

Lindsey
June 27th, 2005, 10:32 PM
I understand the issue, but I don't think it's one that should have been thought, for a moment, as one that could reasonably have been decided either way. To define "public use" to mean "more tax dollars" is frightening.
Well, I'm sorry; I'm no lawyer, but having read the actual opinion and Justice O'Connor's dissent (here (http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=US&vol=000&invol=04-108), if anyone is interested), I have to say that as a layman, even though I think O'Connor raises valid concerns, I find Justice Stevens's argument to be the more compelling. It's in line with more than a century of judicial precedent broadly interpreting "public use" in the sense of "public benefit," and I happen to think that following judicial (and procedural) precedent is of vital importance--it's one of my core democratic values. Otherwise, every time a case comes to court, every time power changes hands, the rules are all up for grabs. And that's chaos--not to mention horribly unjust.

That's not to say that judicial precedents cannot be overturned--of course they can, and sometimes really should be. But to do that, you need to make a compelling case, and I don't see that the minority did that (though I confess I haven't yet read Justice Thomas's separate dissent). O'Connor's argument seemed confused and contradictory to me. Justice Stevens's, on the other hand, was straightforward and simple.

I didn't want this case to be decided this way; I instinctively take the part of the underdog, and I would like to have seen the court come up with a way to rule for the little guys. But I knew it was an unlikely outcome precisely because they were arguing against established precedent, and I just don't understand how anyone can say that the city of New London didn't have a strong case. If you can explain to me where you think Justice Stevens went so wildly wrong, I'll be happy to listen.

--Lindsey

Judy G. Russell
June 27th, 2005, 11:12 PM
Stare decisis (the legal principle that we continue the same way we've been headed) is a good concept, but ought not to be elevated to an insurmountable barrier. The fact is, we should -- at any time -- be prepared with good reason to say we've made a mistake and need to change direction.

In this particular case, I think the move to more and more broadly interpret the phrase "public use" as it appears in the Fifth Amendment is a mistake. I am absolutely confident that the developers in New London could have found a way to design a project that included some residental use. They were given the green light not to bother by this -- IMO -- unreasonably broad view of what a "public use" is.

Dan in Saint Louis
June 28th, 2005, 08:12 AM
the developers in New London could have found a way to design a project that included some residental use
It has been suggested that some of the charm and "life" of European cities is because they tend to mix residential and commercial use in the same neighborhoods -- yea, in the same buildings.

http://landiss.com/staromestske-nam.htm

MollyM/CA
June 28th, 2005, 07:25 PM
When we were in England (1972!) a friend was very active in the Linton equivalents of City Council and City planning and from what she said it wasn't just "tend to mix," it was "you WILL mix." She and others were up in arms and white-hot furious at some proposal they felt was in violation of keeping a mix of small businesses (groceries, pubs, laundromats, etc.) and housing --and I think the proposal was to develop a large acreage to just residential, maybe kicking out whatever was there. I don't know what's happened in the meantime but the mix sure made for pleasant living.

Judy G. Russell
June 28th, 2005, 08:27 PM
There's no question but that a mix is very nice... and that there is something fundamentally wrong with living in a close-in suburb (as I do) where virtually nothing is within walking distance.

Lindsey
June 28th, 2005, 08:35 PM
Stare decisis (the legal principle that we continue the same way we've been headed) is a good concept, but ought not to be elevated to an insurmountable barrier. The fact is, we should -- at any time -- be prepared with good reason to say we've made a mistake and need to change direction.
And in that we are certainly on the same page. I think the key phrase there is "with good reason" -- in order to change direction, the burden is on the party advocating the change to make a compelling case for overturning precedent. I just didn't see a compelling case in O'Conner's dissent.

I was thinking about this this morning, and it finally dawned on me part of what was bothering me about her argument. One of the key precedents here was Berman v. Parker, 348 U. S. 26 (http://caselaw.lp.findlaw.com/cgi-bin/getcase.pl?navby=case&court=US&vol=348&invol=26) (1954), in which the court found that taking property as part of the taking of a blighted neighborhood for economic redevelopment served a public purpose even though the property was destined for subsequent private use, and even though the particular property in question was not itself blighted. O'Conner did not take exception to this. And what was the distinction that she drew between Berman and Kelo? That the Berman case involved a blighted neighborhood; the taking in and of itself served a public purpose, she said, and therefore it didn't matter what use the property was subsequently put to. "Here, in contrast, New London does not claim that Susette Kelo's and Wilhelmina Dery's well-maintained homes are the source of any social harm." So people in nice "well-maintained" neighborhoods are entitled to a greater degree of Fifth Amendment protection than people in poor neighborhoods, even those with "well-maintained" property? That notion bothered me. (And, as it turned out, it had been raised earlier (http://lefarkins.blogspot.com/2005/02/newman-and-takings.html), back in February,when, I assume, the case was argued.)

In this particular case, I think the move to more and more broadly interpret the phrase "public use" as it appears in the Fifth Amendment is a mistake.
But wouldn't you agree that the broad interpretation invoked here happened at least 50 years ago? I just don't see that this particular decision moves the ball any significant distance further in that direction than Berman had already taken it. Now, you might say that Berman was a mistake and that the Court needed to reverse direction, but if you concede that it would require a reversal of direction to decide the case along lines more to your liking, I don't see how you can say there was no reasonable basis for the decison the Court did make in Kelo--they simply followed existing precedent. And that's the chief point I was trying to make. It seems odd to me that my position should have been somehow characterized as the leftist "spin", since, as our own differing takes on this case would illustrate, and from what I have seen in the reading I've been doing, the left is divided on it--and the right as well, I think. I don't see that there is any position on the Court's decision that could be properly characterized as "right" or "left". In many respects, mine is a conservative position, as it maintains the status quo.

I am absolutely confident that the developers in New London could have found a way to design a project that included some residental use.
Oh, but they did: "The development plan encompasses seven parcels. . . . Parcel 2 will be the site of approximately 80 new residences organized into an urban neighborhood and linked by public walkway to the remainder of the development, including the state park." Unfortunately, the existing housing fell in two other parcels, one of which the plan had designated for research and development office space, and the other to provide parking and retail space for the state park or the marina. (I should add that the existing residential neighborhood was in an area that had been zoned for industrial use since 1929.)

--Lindsey

Judy G. Russell
June 29th, 2005, 12:01 PM
Berman really stood only for the principle that, where the legislature has made a principled decision that remedying blight requires stripping the area to be redeveloped down to bare earth and starting again (laying out new streets, utilities and more), the judiciary shouldn't second-guess that decision. But New London isn't arguing that the zone to be changed is blighted. It simply argues that it needs to jump-start its economy and the (easiest?) way to do that is to allow this private development scheme. With Justice O'Connor, I think that crosses the line into what the Court says it won't allow: "A purely private taking could not withstand the scrutiny of the public use requirement; it would serve no legitimate purpose of government and would thus be void."

And the fact that this area is now zoned industrial is not really relevant, since the housing is a long pre-existing use -- one of the houses to be destroyed has been in existence for more than 100 years.

New Jersey has confronted what is essentially the exact same issue. Some years back the casino industry (which now effectively owns Atlantic City) was looking to expand in a particular area. In the way was the perfectly well-kept well-tended home of an elderly black woman who simply said "no" to any offer to buy her land. We here -- our courts -- agreed with the woman. She didn't have to give up her home for economic development. I hold with NJ, and not with the Kelo decision.

Lindsey
June 30th, 2005, 04:15 PM
Berman really stood only for the principle that, where the legislature has made a principled decision that remedying blight requires stripping the area to be redeveloped down to bare earth and starting again (laying out new streets, utilities and more), the judiciary shouldn't second-guess that decision.
And in this case, the legislature had made a principled decision that remedying New London's economic distess required stripping the area down to bare earth and starting again. SCOTUS long ago acknowledged that economic development was a valid public purpose for an eminent domain taking, so I don't understand the real difference between the two cases.

New Jersey has confronted what is essentially the exact same issue. . . . We here -- our courts -- agreed with the woman. She didn't have to give up her home for economic development. I hold with NJ, and not with the Kelo decision.
I certainly have no quarrel with that, and neither does Justice Stevens: He says up front that any state that wants to set the bar higher than the minimum protection required by the U.S. Constitution is perfectly free to do so.

--Lindsey

Judy G. Russell
June 30th, 2005, 04:49 PM
I'm not sure the Court has ever considered economic development in this respect before. Berman certainly didn't approach this concept.

chm
June 30th, 2005, 10:01 PM
Hey, guys, have you seen this? About the guy who wants to take over the Judge's house? Fits in here.

http://news.yahoo.com/news?tmpl=story&u=/nm/usa_court_souter_dc

From one of my blogs: http://wazzup-california.blogspot.com/

Judy G. Russell
June 30th, 2005, 10:23 PM
ROFL!!! Hey, if the Town of Weare really needs a hotel, Souter is toast!

Lindsey
June 30th, 2005, 11:55 PM
I'm not sure the Court has ever considered economic development in this respect before. Berman certainly didn't approach this concept.
I thought I had seen citations of cases that addressed precisely that in the decision, but my memory was mistaken. In the strict sense of the economic development being pursued by New London, it appears not, but Stevens cites two 1984 cases in which economic benefit to the overall public was considered a valid public use: Hawaii Housing Authority v. Midkiff, 467 U. S. 229 (http://caselaw.lp.findlaw.com/cgi-bin/getcase.pl?navby=case&court=US&vol=467&invol=229); and Ruckelshaus v. Monsanto, Co., 467 U. S. 986 (http://caselaw.lp.findlaw.com/cgi-bin/getcase.pl?navby=case&court=US&vol=467&invol=986).

In Midkiff, the state of Hawaii had, by statute, taken fee title from certain lessors and transfered title (with compensation) to the lessees in order to reduce the concentration of land ownership, which was at what they felt was an unhealthy level. Says Stevens, "Reaffirming Berman's deferential approach to legislative judgments in this field, we concluded that the State's purpose of eliminating the 'social and economic evils of a land oligopoly' qualified as a valid public use. 467 U. S., at 241-242. Our opinion also rejected the contention that the mere fact that the State immediately transferred the properties to private individuals upon condemnation somehow diminished the public character of the taking. '[ I ]t is only the taking's purpose, and not its mechanics,' we explained, that matters in determining public use. Id., at 244."

In Ruckelshaus v. Monsanto, the court said that the EPA "could consider the data (including trade secrets) submitted by a prior pesticide applicant in evaluating a subsequent application, so long as the second applicant paid just compensation for the data. . . . We found sufficient Congress' belief that sparing applicants the cost of time-consuming research eliminated a significant barrier to entry in the pesticide market and thereby enhanced competition. 467 U. S., at 1015."

And finally, the summary of the case cites Berman, though I don't know enough to find specifically what is being cited: "Petitioners' proposal that the Court adopt a new bright-line rule that economic development does not qualify as a public use is supported by neither precedent nor logic. Promoting economic development is a traditional and long accepted governmental function, and there is no principled way of distinguishing it from the other public purposes the Court has recognized. See, e.g., Berman, 348 U. S., at 24."

I'm not trying to be difficult, I'm just trying to understand why what the Court decided was such a leap away from anything that had been decided about eminent domain in the last century that there is no principled way to think that the decision might have gone either way.

--Lindsey

Lindsey
June 30th, 2005, 11:56 PM
Hey, guys, have you seen this?
Yeah, I heard something about that last night. Clever publicity stunt.

--Lindsey

Judy G. Russell
July 1st, 2005, 12:07 AM
There is IMO "no principled way to think that the decision might have gone either way" precisely because it crosses a line that should be drawn between public use for which the Takings Clause is appropriate and a claim of public use for which it is (or should be) inappropriate. When isn't it economically advantageous to a community to take land being used for homes (or small businesses or, heaven help us, churches which pay no taxes at all) and give it to those who will develop it into condos and office complexes (or a WalMart)? Without a principled way to answer that question, IMO, the ruling sweeps too broadly.

Lindsey
July 1st, 2005, 04:27 PM
We'll have to agree to disagree, I guess, because it appears to me (and not just to me, but to others who have commented on the decision) that that line was crossed more than 50 years ago--I cannot see how the economic development permitted under Berman is materially different from what New London wants to do. The expected course, then, would be for the Court to affirm established precedent, which is what Kelo did. You might not agree that that was the desired outcome, but I don't see how expecting that the court would follow its own precedents could be considered unprincipled.

--Lindsey

Judy G. Russell
July 1st, 2005, 07:42 PM
We will have to disagree then. I see a major difference between correcting blight, on one hand, and wanting economic growth on the other.

Wayne Scott
July 2nd, 2005, 10:38 AM
Judy: Once in a while we crusty, retarded, reactionary, right-wing, backward, primitive, damn fool conservatives get it right.
I can't imagine how much damage will be done by this benevolent, left-wing, force progress on everyone decision will eventually cause.

Judy G. Russell
July 2nd, 2005, 11:05 AM
In reality, the damage will be far less in the major redevelopment cases like New London than it will be in small suburban communities where it will be used to clear out homes and small businesses for the likes of a WalMart.

I sincerely hope the states step in here and put in their own controls so that communities can NOT use this decision as a justification for a "more and bigger is better" mentality.

chrishays
July 2nd, 2005, 11:26 AM
Hi Judy,

And a so-called conservative court makes a decision that undermines private property rights.

Our best hope is to work very hard for the election of as many Democrats to congress as possible. Our only hope is to take back the house in 2006. I fear if we don't do that, very terrible things will happen. Remember, the real power in this country is in the House of Representatives, because that is where the money is controlled. Even if you aren't a Democrat, you need to think checks and ballances... there aren't any at the moment.

You want a real scare, look up Facism in the dictionary.

Chris

Judy G. Russell
July 2nd, 2005, 03:40 PM
My own view of the world is that the rascals always need to be voted out. And the rascals are, by definition, anyone in power at the time of an election. So when Democrats have everything in their hands, I tend to vote Republican. But now, when the GOP has so much power -- the House, the Senate and the Presidency -- I will vote Democrat.

fhaber
July 2nd, 2005, 05:31 PM
Even this Fabian Bakuninite is forced to disagree, violently. And I'm at the moment purely a downtrodden renter.

You know things are peculiar when you can see things to applaud in Justice Thomas' dissent. It's not just Blacks who'll get the short end of this stick. I can see this a lever to impoverish the Negatively Selected, whatever their race or color. Since the wealth of most Americans lies largely in their homes, imagine what a simultaneous threat to both their domicile and their financial security will do to dissent.

Big Brother doesn't have to wear a Federal hat.

-Libertarian for a day

Dick K
July 2nd, 2005, 08:55 PM
And a so-called conservative court makes a decision that undermines private property rights.
"So-called," indeed. In this particular case, it was the liberal members of the court who supported the decision and the conservatives who opposed it.

You want a real scare, look up Facism in the dictionary.
I tried, but that word does not appear to be in any of my dictionaries.... (Just out of curiosity, what is so frightening about the dictionary definition of fascism? Fascism itself is abhorrent, of course, but I don't see why the dictionary definition should give me goose bumps. Surely, you do not really think this country is headed toward fascism, do you?)

Wayne Scott
July 2nd, 2005, 11:40 PM
Is this the Duck?

Wayne Scott
July 2nd, 2005, 11:56 PM
The developer indeed cannot challenge in the courts. However, the developer can make nice campaign contributions to the people who CAN challenge in court.
Understand, I'm not disagreeing with you at all, just being cynical. . . a privilege of the very elderly. (I became cynical at about the ripe old age of 9 or 10 years.)

Curm, very Curm

Dick K
July 3rd, 2005, 12:48 AM
Is this the Duck?
Wayne -

Well, if it walks like one and quacks like one,....

MollyM/CA
July 4th, 2005, 10:45 AM
You know, I don't see this as a case of "liberals" wanting to claim property for parks or whatever. I see it as a case of legislature (if you can call city planning boards and the like legislature) hijacking property for profit. And this kind of shortsightedness is not something generally associated with "liberals" but rather the reverse.

In this benighted semi-rural area, or maybe that should be beblighted, it is a tradition that the planning commission members and often other city officials stay in office for long enough to get the insider information on the direction of development, buy up all the land they can in those directions, and quit (and retire as zillionaires when they sell it).

chrishays
July 4th, 2005, 11:27 AM
Hmmm so Judy, you vote against your best interest 50 percent of the time?

I'm a life long Democrat. My father was a depression child. When the
Democrats lost the congress recently, he commented "well, I guess people
will have to learn what happens when the Republicans are in charge" [again].
The last time they had this much power, we had the roaring twenties,
followed by the 29 crash, and the Great Depression. Don't think it can't
happen again. Oh it will take longer; The economy is much larger and has
more inertia, and laws were passed to prevent crashes again. And, of
course, the Republicans at every opportunity try to gut or eliminate those
laws. Have you noticed we have national banks again? The regional bank
laws were passed to prevent a total collapse of the banking industry, and it
complemented the creation of the FDIC. Now it is very possible in a serious
economic crisis that the FDIC could be quickly bankrupted. Not a good thing
IMHO.

Its also turned identity theft into a major industry.

I always advise people to look at how many numbers to the left of the
decimal point they have in their annual income. If it is six or greater,
the Republicans are your guys. But if it is five or less... to vote
Republican is to vote against your own economic best interest. Of course if
you are a six figure who cares about those less fortunate, you might make
another choice.

The Democrats are the only party that ever championed the working class (and
yes we have a class based society, we are just in denial about it).

The events of 1968 were horrible and crippled the party for many years to
come. Bad decisions were made about getting in bed with the enemy. I think
the party is now licking its wounds and realizes how foolish that was. At
least some of them are.

Politicians are a little like school teachers. In your academic career you
have lots of mediocrity, and a few absolute dogs. But then there are the
one or two exceptions that truly inspired you. They make up in part for the
tapestry of mediocrity.

The Republicans now have become truly evil. Delay just laughs and thumbs his
nose at campaign finance rules. Carl Rove creates strategies to align the
most gullible voters behind the very party that will ultimately destroy
them.

I think if we ever get the truth about 9/11, we'll find it was all financed
by oil money, and a lot of it was from the US. The only problem was that no
one thought those towers would actually fall.. Just a fire and a few
hundred dead is all they wanted. Evil...

Nuff said. 2006 is crucial, because the crooks have figured out that if
they rig the votes in Ohio and Florida, they can get the White House.
(Don't think so? www.blackboxvoting.org) Did you know that the memory
cartridges used in the voting machines have executable code? And there is
zero security on the handling of those.

We need to get control of the electoral process back, or we might as well
move to Canada or New Zealand.

The founders inadvertently stuck us with a two party system when they
devised the electoral college. Until the country wakes up and decides to
make that constitutional amendment, we are stuck with it and must make the
best of it.

Peace!

Chris

Judy G. Russell
July 4th, 2005, 11:42 AM
I don't see this as a case of "liberals" wanting to claim property for parks or whatever. I see it as a case of legislature (if you can call city planning boards and the like legislature) hijacking property for profit.
And even if you leave off the last two words ("for profit"), I have trouble with the concept.

Judy G. Russell
July 4th, 2005, 11:46 AM
Hmmm so Judy, you vote against your best interest 50 percent of the time?
Nope, I don't see it that way. And especially not here in NJ where Republicans tend to be moderates (note the specific and deliberate use of the phrase "tend to be" since some of them most definitely are NOT moderate). Where power is concentrated in too few hands, the electorate is in trouble. It's true that generally speaking power concentrated in liberal Democratic hands is less troubling to me than power concentrated in conservative Republican hands (all the Democrats tend to do is go after my pocketbook -- the Republicans tend to go after my liberties), but I'd prefer a balance that forces both the liberals and the conservative to the center.

chrishays
July 4th, 2005, 12:11 PM
Actually, the Republicans go after your children's pocketbook. Although they don't raise taxes, they spend like drunken sailors and run the deficit up. Sooner or later someone has to pay.

Chris

Judy G. Russell
July 4th, 2005, 01:09 PM
Actually, the Republicans go after your children's pocketbook. Although they don't raise taxes, they spend like drunken sailors and run the deficit up. Sooner or later someone has to pay.
That's new to this particular batch of Republicans, though. I haven't seen that nearly as much in any of the prior versions.

Dick K
July 4th, 2005, 05:11 PM
I think if we ever get the truth about 9/11, we'll find it was all financed by oil money, and a lot of it was from the US. The only problem was that no one thought those towers would actually fall.. Just a fire and a few hundred dead is all they wanted. Evil...
Is there any factual basis for this incredible allegation, or is it just another wild conspiracy theory?

Lindsey
July 5th, 2005, 07:30 PM
I see a major difference between correcting blight, on one hand, and wanting economic growth on the other.
And I don't; not in terms of the legal questions, anyway, and certainly not in this particular case, where the whole town had been designated as economically depressed. I don't see a real big difference between wanting to correct blight and wanting to correct a seriously depressed local economy.

That doesn't mean I want to see large-scale development projects replacing old neighborhoods willy-nilly, but I do think there's a case to be made that the decision as to what is and is not in the public interest in that regard is best left up to state and local officials and not put in the hands of the federal government to decide.

--Lindsey

Lindsey
July 5th, 2005, 07:42 PM
So when Democrats have everything in their hands, I tend to vote Republican. But now, when the GOP has so much power -- the House, the Senate and the Presidency -- I will vote Democrat.
I'm sure there are people her who will refuse to believe this, but I have tended to follow the same pattern. As the sailing instructors at summer camp used to tell us, "When the boat heels (http://encyclopedia.laborlawtalk.com/Sailing#Heeling), you hike (http://www.uhh.hawaii.edu/~sailing/UHHSailingSite%20folder/UHHSailingSite/Glossary/Hiking.html)." And that's why I pretty much stopped voting for Republicans after 1980: I'm just trying to do my part to keep the ship of state from capsizing.

--Lindsey

Lindsey
July 5th, 2005, 07:57 PM
Its also turned identity theft into a major industry.
Be sure not to miss the saga of U.S. Rep Randy "Duke" Cunningham (R-CA), here (http://www.nctimes.com/articles/2005/07/02/news/top_stories/20_13_257_1_05.txt) and here (http://www.signonsandiego.com/news/metro/20050705-9999-1n5duke.html) for starters. There's a new twist every day, it seems!

--Lindsey

Judy G. Russell
July 5th, 2005, 09:06 PM
And I think the best case to be made is in favor of taking many of these decisions out of the hands of government, altogether. Why some elected flack is in a better position to decide if my perfectly well-kept home should be razed in favor of some development is simply beyond me. A road, okay. An airport, okay. But some private deveopment? I just don't think that's what the Takings Clause should be about.

Judy G. Russell
July 5th, 2005, 09:08 PM
"When the boat heels (http://encyclopedia.laborlawtalk.com/Sailing#Heeling), you hike (http://www.uhh.hawaii.edu/~sailing/UHHSailingSite%20folder/UHHSailingSite/Glossary/Hiking.html)."
My first thought on reading that what that works only when the water isn't over my head...!

Dick K
July 5th, 2005, 10:04 PM
And I think the best case to be made is in favor of taking many of these decisions out of the hands of government, altogether. Why some elected flack is in a better position to decide if my perfectly well-kept home should be razed in favor of some development is simply beyond me. A road, okay. An airport, okay. But some private deveopment? I just don't think that's what the Takings Clause should be about.
Judy,

And that pretty much sums up the difference between the collectivist and the traditionalist: The former assumes that the welfare of the individual will be taken care of by promoting the interests of society as a whole, while the latter (a group in which I find myself and with which I suspect you identify) believes that the welfare of society is simply the sum of the welfare of the individuals which make it up.

Judy G. Russell
July 5th, 2005, 10:39 PM
I've never been one for labels, and probably defy any real attempt to put me into one since I tend to be liberal on most social issues, conservative on most fiscal issues, and smack dab in the middle on just about everything else. But it has always seemed to me that government's singular role is to do for the individual those things the individual cannot do alone.

Dick K
July 5th, 2005, 10:52 PM
But it has always seemed to me that government's singular role is to do for the individual those things the individual cannot do alone.
Hard to argue with that...

Judy G. Russell
July 6th, 2005, 12:05 AM
Well, unfortunately, folks don't always see eye to eye about just what things an individual can't do alone but ought to. Some folks see it as including causing regime change half a world away...

Mike
July 7th, 2005, 02:59 AM
But it has always seemed to me that government's singular role is to do for the individual those things the individual cannot do alone.
I tend to have waver between your thought and the philosophy of a former co-worker: "Government's role is to stop your neighbor from whacking you upside the head. If it does anything more, it's out of bounds."

Dan in Saint Louis
July 7th, 2005, 08:24 AM
The case involves the City of New London CT which wants to allow a private developer to do a major redevelopment of some waterfront property to include condos and office buildings and the like.
From a local paper:

"BUILD St. Louis, a group that advocates for small businesses, cites a striking statistic: For every dollar you spend at a locally owned business, about 40 cents remain in the local economy; for every dollar you spend at a business that is managed from out of town, less than 20 cents is recycled locally."

"The figures of 20 cents and 40 cents come from studies conducted in Austin, TX; Santa Fe, NM; and Salt Lake City."

So those who claim that turning this property over to private developers need to know that only 20 cents of each dollar is likely to stay in town, double that if the developer himself is local. Since developers in similar situations generally get zero taxation for the first couple of decades as an incentive, that doesn't leave much benefit for the city.

But quite a bit for the developer! Follow the money..........

Judy G. Russell
July 7th, 2005, 09:19 AM
Follow the money..........
Indeed. That's a pretty damning statistic.

Dan in Saint Louis
July 7th, 2005, 10:45 AM
Indeed. That's a pretty damning statistic.
And it certainly does not support the contention that this "eminent domain" seizure was for the public good. Well, maybe 20% of it was.

Judy G. Russell
July 7th, 2005, 01:27 PM
You need to be registered to read this, but there's an interesting Op Ed piece from the NY Times (http://www.nytimes.com/2005/07/05/opinion/05tierney.html) this week on this issue.

Dan in Saint Louis
July 7th, 2005, 02:24 PM
You need to be registered to read this, but there's an interesting Op Ed piece from the NY Times (http://www.nytimes.com/2005/07/05/opinion/05tierney.html) this week on this issue.
"Today, having belatedly realized that downtown would benefit from people living nearby, the city is trying to entice them back to the Hill by building homes there." Weren't WE at this point closer to the top of this thread?

"The city managed to clear out shops and an office building to make room for a new Lazarus department store, built with $50 million in public funds, but Lazarus did not live up to its name. It has shut down and left a vacant building. Meanwhile, the city's finances are in ruins, and businesses and residents have been fleeing the high taxes required to pay off decades of urban renewal projects and corporate subsidies."

Lindsey
July 7th, 2005, 03:52 PM
And it certainly does not support the contention that this "eminent domain" seizure was for the public good. Well, maybe 20% of it was.
Aren't you ignoring the fact that the development was projected to provide several hundred (one account that I read said as many as a thousand) new jobs? Not to mention the potential tourist/recreational attraction that the marina and newly public access to the waterfront provide?

In any case, are you seriously asserting that you, or the business community in Texas, or 9 justices in Washington, DC, are better qualified to judge what is in the best interests of the people of New London, CT than the people of New London themselves are? That, to me, is the question this case boils down to: Who decides what is in a community's public interest?

--Lindsey

Lindsey
July 7th, 2005, 04:01 PM
You need to be registered to read this, but there's an interesting Op Ed piece from the NY Times (http://www.nytimes.com/2005/07/05/opinion/05tierney.html) this week on this issue.
John Tierney is a hard-line conservative--the NYT's replacement for William Safire, if I'm not mistaken. The Times itself (http://www.nytimes.com/2005/06/24/opinion/24fri1.html?n=Top%2FOpinion%2FEditorials%20and%20O p-Ed%2FEditorials) came down on thie side of the Court majority. (There's a charge to read the editorial, unfortunately.)

--Lindsey

Lindsey
July 7th, 2005, 04:25 PM
And I think the best case to be made is in favor of taking many of these decisions out of the hands of government, altogether.
Ummm--the Supreme Court doesn't qualify as "government"? It sure seems to most of the time that people are complaining about "government interference" in their lives.

Why some elected flack is in a better position to decide if my perfectly well-kept home should be razed in favor of some development is simply beyond me.
It's beyond me, quite honestly, why a group of unelected judges who may never have even set foot in the state are necessarily better qualified to judge that than are elected officials who are directly accountable to the community in question.

It's not that I don't understand the moral position you are taking; I just don't understand the legal argument that would achieve the result that you want.

--Lindsey

Dick K
July 7th, 2005, 05:15 PM
In any case, are you seriously asserting that...9 justices in Washington, DC, are better qualified to judge what is in the best interests of the people of New London, CT than the people of New London themselves are? That, to me, is the question this case boils down to: Who decides what is in a community's public interest?
Yes. Those "9 justices in Washington, DC," have the authority and the responsibility to see that the actions of local governments do not override the constitutional rights of all the people living under those governments.

From your argument, it would logically follow that the "9 justices in Washington, DC," were not better qualified than the people of Kansas, South Carolina, Virginia, and Delaware to judge whether desegregating public schools was in the best interests of all the people of those states. Brown v. Board of Education put paid to that.

Dan in Saint Louis
July 7th, 2005, 06:24 PM
Aren't you ignoring the fact that the development was projected to provide several hundred (one account that I read said as many as a thousand) new jobs? Not to mention the potential tourist/recreational attraction that the marina and newly public access to the waterfront provide?Having studied neither political science nor economics, I can only go by the previously-mentioned studies. Only a small fraction of the money stayed in the community.

In any case, are you seriously asserting that you, or the business community in Texas, or 9 justices in Washington, DC, are better qualified to judge what is in the best interests of the people of New London, CT than the people of New London themselves are?Well, the "people" of Pittsburgh (not actually, of course -- and that may be the problem) didn't do such a great job of predicting, did they? Should we expect those "representing" the people of New London to do any better? Do the "people" actually get to decide, or is it their duly-purchased "representatives"?

That, to me, is the question this case boils down to: Who decides what is in a community's public interest?Indeed that IS the question. Should the people themselves get to decide, or will that choice be awarded to the best politicians money can buy?

ONE MORE TIME: Follow the money.

Judy G. Russell
July 7th, 2005, 08:01 PM
I just don't understand the legal argument that would achieve the result that you want.
The legal argument is that the Takings Clause does not extend to replacing one private use with another private use, at least not in the absence of blight.

Judy G. Russell
July 7th, 2005, 08:02 PM
I understand Tierney's biases. But even the biased can occasionally be correct.

Judy G. Russell
July 7th, 2005, 08:05 PM
That, to me, is the question this case boils down to: Who decides what is in a community's public interest?
But even if it is in the interests of a community to, say, eliminate all crime, that would not allow that community to indiscriminately arrest people, search their homes or tap their telephone conversations. New London can certainly decide what's in its interest. But it can't implement its views where the result is to unconstitutionally deprive private citizens of their rights.

Now you're right that the Supreme Court -- entrusted by the Constitution with the sole right to determine what deprivation is and isn't constitutional -- has said New London can do what it has chosen to do. But that same Supreme Court and the same Constitution give me the right to think and to say the Court was wrong.

Lindsey
July 7th, 2005, 10:19 PM
Yes. Those "9 justices in Washington, DC," have the authority and the responsibility to see that the actions of local governments do not override the constitutional rights of all the people living under those governments.
I'm afraid that the only right the US Constitution grants you when it comes to the Takings Clause is the right to be compensated fairly for the property the government takes. There is an implied restriction that the taking should be for "public use," but the Constitution itself is silent as to exactly what is meant by the term "public use." The Supreme Court has, since at least 1896, decided that "public use" is synonymous with "public benefit." And they have always given great deference to states and localities to decide what is and is not in the public benefit. What you are asking is for the Court to overturn a century of precedent--not an impossible thing, but hardly a trivial one.

From your argument, it would logically follow that the "9 justices in Washington, DC," were not better qualified than the people of Kansas, South Carolina, Virginia, and Delaware to judge whether desegregating public schools was in the best interests of all the people of those states. Brown v. Board of Education put paid to that.
I am not aware that Brown v. Board of Education turned on the Takings Clause.

--Lindsey

Lindsey
July 7th, 2005, 10:28 PM
Well, the "people" of Pittsburgh (not actually, of course -- and that may be the problem) didn't do such a great job of predicting, did they? Should we expect those "representing" the people of New London to do any better? Do the "people" actually get to decide, or is it their duly-purchased "representatives"?
There is no Constitutional requirement that governments be omniscient, or even particularly wise. If there were, we would have an ironclad impeachment case against the Bush Administration.

Should the people themselves get to decide, or will that choice be awarded to the best politicians money can buy?
In a democratic system, elected officials are assumed to represent the voice of the people. Are you saying that leaving the decision up to an unelected panel of judges is the equivalent of "letting the people decide"? I'm sorry, I don't see it that way.

--Lindsey

Lindsey
July 7th, 2005, 10:56 PM
The legal argument is that the Takings Clause does not extend to replacing one private use with another private use, at least not in the absence of blight.
Well: to quote Charles Fried, a professor of law at Harvard University (who is inclined to be critical of Kelo),

The 5-4 decision, though disappointing, came as no surprise. Twenty-five years ago the court allowed Hawaii to take, if it paid compensation for, the leasehold interests of a few landowners and transfer them to private tenants in order to break the landowners' oligopolistic hold. If such a redistributionist program satisfied the Constitution's "public use" requirement, then it is hard to see why New London's purpose—to increase employment, fatten tax rolls, and remove some blighted properties in order to create a redevelopment zone—would not also count as a public use.

This is, by the way, from the first part of a very entertaining exchange (http://slate.msn.com/id/2121410/entry/2121470/) on Slate.com over the last few decisions handed down by the Supremes at the end of the session. Unfortunately, you have to view each entry separately, but I think it's worth that little bit of trouble. Only the first four deal with Kelo. The rest concern the decisions that followed it.

As far as my own reasoning goes, I found this post (http://www.dailykos.com/storyonly/2005/6/25/201045/439) earlier today on the Daily Kos blog that is pretty close to the way I see this case. "Armando", too, seems to find O'Connor's dissent confused and contradictory. I haven't read all of Thomas's dissent, but I have read enough of it to know that he is once again arguing from the perspective of "original intent," which is a philosophy of Constitutional interpretation that I reject. And when Thomas insists that the only way to properly understand the wording of the Constitution is to consult an 18th-century dictionary, well...what can I say?

--Lindsey

Lindsey
July 7th, 2005, 11:03 PM
I understand Tierney's biases. But even the biased can occasionally be correct.
But they are always suspect...

Actually, Tierney has a point about urban redevelopment not having a great track record in turning communities around, but it's irrelevant to Kelo. As I said to Dan, there is no Constitutional requirement that governments be either omniscient or wise.

--Lindsey

Judy G. Russell
July 7th, 2005, 11:17 PM
I'm not particularly defending O'Connor's dissent (and certainly not Thomas'!). I'm staking out my own territory.

Judy G. Russell
July 7th, 2005, 11:18 PM
But they are always suspect...
As are those of anyone identified with either side generally. I mean, seriously, Tierney's are no more suspect than Maureen Dowd's.

Lindsey
July 7th, 2005, 11:27 PM
But even if it is in the interests of a community to, say, eliminate all crime, that would not allow that community to indiscriminately arrest people, search their homes or tap their telephone conversations.
Ah, well--now you've gone outside what is covered by the Takings Clause, and you're encroaching on rights that are explicitly protected in other parts of the Constitution.

Now you're right that the Supreme Court -- entrusted by the Constitution with the sole right to determine what deprivation is and isn't constitutional -- has said New London can do what it has chosen to do. But that same Supreme Court and the same Constitution give me the right to think and to say the Court was wrong.
I'm really not trying to argue the rightness or wrongness of the Kelo decision, even though I seem to have allowed myself to be drafted into defending it. But all I was really trying to say at the beginning of this discussion was that it seemed to me that the Court was only following decades of precedent, and by that token, I didn't see how they could be characterized as out of control, or how it could be said that there was no principled basis for the decision that they made. (The Washington Post editorial page (http://www.washingtonpost.com/wp-dyn/content/article/2005/06/23/AR2005062301698.html) called the decision unjust but correct; I'm not sure I'd go as far as "unjust," but certainly I think it is unfortunate, and other than that, I'd say I'm pretty much in agreement with the Post.)

--Lindsey

Dan in Saint Louis
July 8th, 2005, 08:21 AM
In a democratic system, elected officials are assumed to represent the voice of the people. Are you saying that leaving the decision up to an unelected panel of judges is the equivalent of "letting the people decide"?
"Assumed" in the first sentence says a lot. One of the faults of our present form of government is that once elected, there is nothing that requires officials to actually follow the wishes of the people.

This is not a simple problem. If it were, it would have never gotten this far. We have some poor citizens who have not the resources to defend their own property rights. We have the bought/elected officials who are more likely to "represent" the developer's deep pockets than the people they were elected to serve. We have the developers themselves, who might return about 20% of the investment to the community if they don't go bankrupt first. And finally we have the courts, who may be so far from the gritty reality of the situation that the principles they apply are too abstract to be relevant.

Maybe it's time to re-visit the concept of "town meeting" government.

Lindsey
July 8th, 2005, 11:36 AM
One of the faults of our present form of government is that once elected, there is nothing that requires officials to actually follow the wishes of the people.
That's what elections are for. Now: That said, there's no question but that corruption is a problem that is growing at an alarming rate, and threatens to completely subvert the proper purpose of government. Take a look at Molly Ivins's most recent column (http://www.sltrib.com/opinion/ci_2845941) on this subject. And I highly recommend the Harper's article she mentions there on the growing abuse of earmarks--it is quite sobering.

Town meetings are all well and good, but they work best in small, contained communities. They're not very practical for large urban areas. And direct democracy carries its own dangers (cf the state of California). Recommended reading on this subject: Fareed Zakaria's The Future of Freedom: Illiberal Democracy at Home and Abroad (http://www.fareedzakaria.com/books/index.html) .

--Lindsey

Lindsey
July 8th, 2005, 11:37 AM
I mean, seriously, Tierney's are no more suspect than Maureen Dowd's.
Quite true; and I don't much care for Maureen Dowd, either.

--Lindsey

Lindsey
July 8th, 2005, 11:40 AM
I'm staking out my own territory.
And that's fine; I'm just trying to get a sense of how you've drawn the boundaries. ;)

--Lindsey

Dan in Saint Louis
July 8th, 2005, 02:39 PM
That's what elections are for.Problem is, elections happen to late to do anything about bad decisions made today. And the candidate with the most votes doesn't always win. We cannot predict from a candidate's statements and promises what he will really do when the chips are down. And in the end, votes are for sale.

We may have the best political system in the world, but that doesn't mean it is the best it could be.

Judy G. Russell
July 8th, 2005, 03:13 PM
I never said they were out of control. I do think the decision is wrong.

Dick K
July 8th, 2005, 10:15 PM
So, invoking the Takings Clause obviates any need to pay attention to the rest of the Constitution or to the Bill of Rights?

Lindsey
July 8th, 2005, 11:00 PM
Problem is, elections happen to late to do anything about bad decisions made today.
But elected officials have to worry that what they do today will affect their chances of success in the next election. And it's up to the electorate to be sure they are held accountable.

And the candidate with the most votes doesn't always win.
What--you have an electoral college system there in Missouri?

We may have the best political system in the world, but that doesn't mean it is the best it could be.
I never said that it did, but it's not the job of the Supreme Court to make up for the shortcomings of the political system.

--Lindsey

Lindsey
July 8th, 2005, 11:03 PM
I never said they were out of control. I do think the decision is wrong.
No, you didn't say they were out of control (though I think you did concur with the pronouncement that they were "dufuses"), but "out of control" has been a common characterization with people who took exception to the Kelo decision.

--Lindsey

Lindsey
July 8th, 2005, 11:04 PM
So, invoking the Takings Clause obviates any need to pay attention to the rest of the Constitution or to the Bill of Rights?
What other parts of the Constitution do you feel were at issue here?

--Lindsey

Dick K
July 8th, 2005, 11:39 PM
The pork barrel may have a long and revered history in congressional deliberations, but it is all too often put to appalling ends. (Come to think of it, one--well not the sainted Molly Ivins, of course, but one--could say the same thing about the filibuster.)

Dick K
July 8th, 2005, 11:43 PM
What other parts of the Constitution do you feel were at issue here?
Since I do not consider the proposed use of the seized land to constitute "public use" within the meaning of the Fifth Amendment, I believe the seizure amounts to deprivation of property, without due process of law.

But I stress that is only my opinion. The Supreme Court has made its decision, and while the Court is by no means infallible, its decision is the law of the land. I just don't have to like it, and I still think it was wrong.

Judy G. Russell
July 9th, 2005, 07:07 AM
"out of control" has been a common characterization with people who took exception to the Kelo decision.
I have a great disliking for the tendency these days to say, "Well, other people who agree with your bottom line use that line of reasoning, so you must either defend their reasoning or back off from your position." I have my reasons for disliking and disagreeing with the Kelo decision. They have nothing to do with the Court being out of control.

But yeah, when people make a decision that I really think is very seriously wrong, I do use the word "doofuses".

At least when I'm being nice.

MollyM/CA
July 9th, 2005, 09:38 AM
The other excuse for permitting of development (all kinds) that's often put forth is that building whatever it is will provide ### jobs. In both of the two fights of this sort in which we've been personally involved, the wannabe developer was from far out of the county (Hong Kong's a looooong way from Napa County!) and had already set up with a contracting firm in the Los Angeles area --there wasn't, shall we say, a Chinaman's chance that the local bulldozer/backhoe guy who was so vociferously in favor would have ever seen a cent.

Anyone know what a "Chinaman's chance" is? "Chinaman" is such a denigrative term in California (I specify only because I don't know about elsewhere) that I hesitated to use it. But the thought of being enlightened made me do it.

MollyM/CA
July 9th, 2005, 09:53 AM
One might also bear in mind that "compensated fairly" for the property the government takes is defined by government, or by the agency involved, and that they can usually make their price stick.

When they built the so-called "Manteca Bypass" for traffic on CA state 120 (major route to Yosemite), they (CalTrans, the state highway agency) wanted to take 2 of the 5 acres of our then property, at about a tenth of what we would have gotten if we'd wanted to (and had been able to in the then zoning) put it on the open market. We didn't owe anyone any money and didn't particularly need $3000 so told them to go fly a kite (we were looking hard for a bigger place anyway). Our neighbors evidently did, as most of them sold immediately, leaving us prey to a campaign of rudity and harrassment on the part of the CalTrans agent, who used to drive up, lean on the horn, and yell threats (fortunately he was too scared of the dog or too scared of the trespass laws he was already violating to go through the gate) about how if we didn't sign that instant they'd invoke eminent domain and we'd get nothing. Until I called the sheriff the second time...

MollyM/CA
July 9th, 2005, 10:00 AM
Hey, thanks for the pointer to the Ivins column. One of the best I've seen by her. Wotta woman. Wotta writer!

Dan in Saint Louis
July 9th, 2005, 10:16 AM
But elected officials have to worry that what they do today will affect their chances of success in the next election.Their chances in the next election have more to do with how much they spend than anything else.

What--you have an electoral college system there in Missouri?No, of course not. But this issue has gone Federal, and I'm sure it will again.

it's not the job of the Supreme Court to make up for the shortcomings of the political system.Then what IS SCOTUS' job? Is it not to balance out the politics of the other two branches?

Dick K
July 9th, 2005, 02:05 PM
Anyone know what a "Chinaman's chance" is? "Chinaman" is such a denigrative term in California (I specify only because I don't know about elsewhere) that I hesitated to use it. But the thought of being enlightened made me do it.
The term probably has its origins in the dangerous tasks (mainly blasting) assigned to Chinese workers in the construction of the transcontinental railroad. Another possibility is a reference to the probability of a Chinese miner striking it rich during the California gold rush--presumably because the Chinese reputedly had little if any knowledge of geology and mining technology.

chrishays
July 9th, 2005, 08:23 PM
Is there any factual basis for this incredible allegation, or is it just another wild conspiracy theory?

Its not so wild. If you think about it, the members of (darn... name of the organization escapes me.. but they are the architects of this administration) have stated that what was needed was "another pearl harbor" to get the American public back on the war path so that the military industrial complex could once again control everything. That is in writing.

They probably didn't orchestrate it, but doesn't it strike you as odd how so many security holes were found, so many opportunities missed to prevent 9/11 in the first place? And nobody has been fired! If you did your job as badly as these guys, wouldn't you expect a pink slip? And, Bush gives these guys promotions and medals!!!

I think it isn't too much of a stretch to say that there is a really good possibility that they just stayed out of the way and let it happen. These are the kind of people that are in our government now.

There is one person I know of who served in the air force that says that when you have jet liners turning off their transponders and making U-Turns (well documented), that is a big red flag and there would be an immediate alert and scramble. There wasn''t until well after the first plane hit. (Remember "My Pet Goat"?)

Some heads should have rolled. Why didn't they?

Chris

Dick K
July 9th, 2005, 08:43 PM
Its not so wild.
I am afraid it definitely is.
If you think about it, the members of (darn... name of the organization escapes me.. but they are the architects of this administration) have stated that what was needed was "another pearl harbor" to get the American public back on the war path so that the military industrial complex could once again control everything. That is in writing.
Uh-huh. Well, when you think of the name of the organization which was "the architects of this administration" and can provide a citation for what you say "is in writing," let us know.
They probably didn't orchestrate it, but doesn't it strike you as odd how so many security holes were found, so many opportunities missed to prevent 9/11 in the first place?
No, it does not strike me as odd at all. Hindsight is 20/20, and one can discover all sorts of "amazing" coincidences after the fact. As Penn Jillette once said, "You can find all sorts of words after an explosion in a Scrabble factory."
I think it isn't too much of a stretch to say that there is a really good possibility that they just stayed out of the way and let it happen. These are the kind of people that are in our government now.
It is far too much a stretch. Absent any real proof, a claim that officials of our government knowingly stood by and consciously allowed the events of 9/11 to happen is simply vicious slander.
There is one person I know of who served in the air force that says that when you have jet liners turning off their transponders and making U-Turns (well documented), that is a big red flag and there would be an immediate alert and scramble. There wasn''t until well after the first plane hit.
Now it is a big red flag and would be the basis for an immediate scramble, but it is precisely because of 9/11 that it is so today. Once again, hindsight is 20/20. (Incidentally, I am a retired Air Force officer, if that means anything, and my first active duty assignment was with an Airborne Early Warning and Control Wing.)
(Remember "My Pet Goat"?)
Yes. So what? The President does not give the signal to scramble jets, and the "My Pet Goat" business took place after the attack.

Lindsey
July 9th, 2005, 11:16 PM
deprivation of property, without due process of law.
I don't believe due process was an issue raise by the plaintiffs. Kennedy's concurring opinion, however, has been read by some as indicating that claims under the Due Process clause may be valid in cases "in which the risk of undetected impermissible favoritism of private parties is so acute that a presumption (rebuttable or otherwise) of invalidity is warranted under the Public Use Clause" or where the projected economic benefit to the community is de minimus. Neither of those claims, however, was made in this case.

--Lindsey

Lindsey
July 9th, 2005, 11:27 PM
One might also bear in mind that "compensated fairly" for the property the government takes is defined by government, or by the agency involved, and that they can usually make their price stick.
Well, it's not entirely one-sided; my own mother once sat on a jury in an eminent domain case to decide just compensation for the property being taken. You can take your case to court if you don't feel you're being offered reasonable compensation. But of course, you have to figure the costs of going to court against the additional amount you think your property is worth. And a realistic valuation get doesn't include, "Well, if it were eventually zoned for xxxxx, I could get..."

--Lindsey

Lindsey
July 9th, 2005, 11:35 PM
Hey, thanks for the pointer to the Ivins column. One of the best I've seen by her. Wotta woman. Wotta writer!
Molly Ivins is one of my favorites, and besides being a terrific writer, she is a wonderful human being. She was critical of the Kelo decision, but that's fine, I don't always have to agree with her to enjoy her columns. And in any case, I'm not so much trying to defend the outcome of the case as to defend the Court's reasoning in reaching the decision they did.

--Lindsey

Lindsey
July 9th, 2005, 11:39 PM
Their chances in the next election have more to do with how much they spend than anything else.
In which case the fault, dear Brutus, is not in our stars, but in our selves. Or in the immortal words of Pogo, "We have met the enemy, and he is us."

Then what IS SCOTUS' job? Is it not to balance out the politics of the other two branches?
Silly me, I thought their job was to be the court of last resort in federal cases and the ultimate authority on the meaning of the U.S. Constitution.

--Lindsey

Dick K
July 10th, 2005, 12:49 AM
I don't believe due process was an issue raise by the plaintiffs.
I never said it was <sigh>.

Dan in Saint Louis
July 10th, 2005, 09:33 AM
Silly me, I thought their job was to be the court of last resort in federal cases and the ultimate authority on the meaning of the U.S. Constitution.
And in what way does this NOT represent trying to keep the politics of the other two branches from dominating the government?

While I have this window open, a local reporter has also added this:
http://tinyurl.com/bkxa3 (http://tinyurl.com/bkxa3)

Lindsey
July 10th, 2005, 10:59 AM
I never said it was <sigh>.
My point was that you were making a claim for the plaintiffs that the plaintiffs themselves did not make.

(What's with the sighing? Are you trying to do an Al Gore imitation?)

--Lindsey

Lindsey
July 10th, 2005, 12:12 PM
And in what way does this NOT represent trying to keep the politics of the other two branches from dominating the government?
Ideally, politics shouldn't play into it at all. The justices are supposed to be interpreting the law, not weighing the political effects. Not that I think that politics doesn't sometimes enter into things (I think that's one reason David Souter voted one way on the Establishment case in Kentucky and the other way on the one in Texas--he was cognizant that it was less disruptive to remove something hanging on a wall than to bring in the front loaders to remove large granite monuments from the front lawns of courthouses all over the country.) But political balance is not the job of the Court. Yes, if one or another branch oversteps its Constitutional authority, the Court should slap them down. But that's the extent of it.

As far as the Maplewood case that you linked to: I of course have no knowledge of the specifics of that case, but if it is true that Maplewood is not trying to cure any financial distress with the redevelopment plan under consideration, that's a different situation from New London, and they may well have a case, either under the Takings Clause, or under the Due Process Clause. See Anthony Kennedy's concurring opinion in Kelo, about which Walter Dellinger of Duke University Law School had this to say in that exchange on Slate I mentioned earlier in this thread:

There are some government economic regulations that ought to be struck down—many of the occupational licensing laws, for example—but stretching the Takings Clause to reach them seems misguided. Those who would like to see greater judicial protection of economic liberties (and to some degree, I am among them) should instead use the Due Process Clauses of the Fifth and 14th Amendments to demand that economic regulation generally satisfy a moderate level of judicial scrutiny. The aim would be to invalidate at least the worst cases of government transfers of property from one set of private interests to another without advancing a public purpose. Justice Kennedy's essential concurring opinion contains the seeds of such an approach. Although it has less bite than the dissenters wanted, it potentially has far broader reach than the constitutional text of the Takings Clause. Kennedy's approach has the virtue of flushing out what Professor Cass Sunstein, of the University of Chicago, has called "naked preferences" for parties who have exerted improper influence on governmental officials. "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 if it has merit," Kennedy wrote yesterday. There is no logical reason why his test should be limited to takings when it applies equally well to more extensive categories of economic regulation. Conservatives need to better recognize who their true friends are.

And if the people of Maplewood are upset with their councilman, they should make sure he feels the heat. And they should cultivate public opinion to put other council members on the hot seat, too. Politics is not entirely about money: numbers still count.

--Lindsey

chrishays
July 10th, 2005, 12:21 PM
Well, you obviously believe exactly the way they want you to believe. There were plenty of signs before 9/11, but they were either ignored or supressed. The FBI agent who was repeatedly denied access to a warrent to seize one of the terrorists hard drives... that is just one.

And no, you are incorrect, the planes would have scrambled had normal procedures been followed. Interestingly, the delay in the "my pet goat" incident may have allowed things to get much worse... so the pres has blood on his hands.

Interestingly, Chaney was the one who finally gave the order... an order which he had no authority to give, by the way.

If anyone following this is the least curious, a couple of interesting sites: www.blackboxvoting.org is Bev Harris' foundation to investigat electronic voting fraud. What she has uncovered should make every red blooded American's blood curdle. www.therandirhodesshow.com is full of current information and has some interesting archival material as well.

Remember, apathy kills.

Chris

Dan in Saint Louis
July 10th, 2005, 01:18 PM
Politics is not entirely about money: numbers still count.Lindsey, I am glad that you are less cynical than I am. I just read a poll result a couple of hours ago. 58% of those responding favored medical research using embryonic stem cells, 29% opposed it, and 13% were undecided. You can tell how much weight those "numbers" carry in the White House.

Dick K
July 10th, 2005, 02:02 PM
Well, you obviously believe exactly the way they want you to believe.
Yeah, right.

When you come up with some solid evidence or citations backing the wild conspiracy theories, let me know.

Dick K
July 10th, 2005, 02:08 PM
My point was that you were making a claim for the plaintiffs that the plaintiffs themselves did not make.
No; I was making a point for me.

Look; I am not saying that SCOTUS was out of control or even that they are doofuses. I readily recognize that a legal case can be (and was) made for the position taken by the majority.

I am simply saying that I think that position was--for various reasons--wrong. And, in that, I come down on the side of four members of the Court. I am very disturbed by the apparent approval of the idea that an American's home is his castle...unless someone offers to pay higher taxes if that someone can be given ownership of the castle.

Lindsey
July 10th, 2005, 02:27 PM
I readily recognize that a legal case can be (and was) made for the position taken by the majority.
Good; that is all I was trying to say.

--Lindsey

Dan in Saint Louis
July 10th, 2005, 03:38 PM
I am very disturbed by the apparent approval of the idea that an American's home is his castle...unless someone offers to pay higher taxes if that someone can be given ownership of the castle.Or even if they pay NO taxes as a result of being given ownership. Aren't most of these developments tax-abated as an incentive?

Dick K
July 10th, 2005, 03:48 PM
Or even if they pay NO taxes as a result of being given ownership. Aren't most of these developments tax-abated as an incentive?Well, my understanding is that the proposed development in New London would augment the tax base.

Mike
July 15th, 2005, 03:16 AM
Taken for Home Depot

http://atlanta.bizjournals.com/atlanta/stories/2005/07/11/story1.html?page=1

Dick K
July 16th, 2005, 10:29 PM
Taken for Home Depot

http://atlanta.bizjournals.com/atlanta/stories/2005/07/11/story1.html?page=1
Mike -

Those stories are absolutely appalling. Of course, it will be interesting to see the apologists for the SCOTUS decision tie themselves in knots as they simultaneously decry the growing hegemony of "big box" stores and sigh that (a) it is a decision which is up to the states, and (b) well, the big boxes do contribute to the public good by paying more taxes (and hiring more minimum wage workers) than rich absentee landlords who let the land lie fallow....

Judy G. Russell
July 17th, 2005, 03:45 PM
It's exactly that kind of use of the Takings Clause that makes the Kelo decision so wrong in my opinion. When a local government can decide, for whatever reason (and virtually without review by anyone, including the courts), that ordinary private use A outweighs ordinary private use B, the Takings Clause has (IMO) been perverted.

Wayne Scott
August 3rd, 2005, 11:55 AM
I don't usually find myself in agreement with Rehnquist, Scalia and Thomas, but this time they joined with Justice O'Connor in an opinion I agree with in its entirety -- and I disagree with the five-member majority.

The case involves the City of New London CT which wants to allow a private developer to do a major redevelopment of some waterfront property to include condos and office buildings and the like. The idea is that the redeveloped property will produce significant tax benefits to the city. So far so good. The hitch is that there are already private land owners in the affected area, and they're not interested in giving up their homes to the private developer. (Those objecting to this "take from me and give to him" scheme include a woman born in 1918 -- in the house where she still lives and which her family has owned for more than 100 years. Her husband has lived with her in that house since they were married -- 60 years ago.)

So the City wants to use its power of eminent domain and take the property away from the existing owners and turn it over to the private developer.

Uh... no. I cannot conceive in a million years that the Takings Clause of the Fifth Amendment that allows a municipal or state government (or the feds, for that matter) to take private property for public use includes the right to take it from one private owner and giving (or selling) it to another private owner. Nope nope nope.

Justice O'Connor has it right: "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."

This is a simply terrible decision. If Congress feels compelled to go monkeying around with the Constitution (there is the usual move afoot to amend the Constitution to eliminate flag-burning from the protections of the First Amendment), it would be well-advised to put a stop to this kind of misreading of the Fifth Amendment.

Bad move, folks. Very bad move.
It just goes to show that those sons of Beliel, Thomas and Scalia, are correct every once in a long while. This is an example of YOUR wing of the political spectrum believing that the government is best able to do everything FOR us and we are not a government OF the people, but a governement FOR the people.
Bah!
Curm, Curm, Curm

Judy G. Russell
August 3rd, 2005, 05:29 PM
This is an example of YOUR wing of the political spectrum believing that the government is best able to do everything FOR us and we are not a government OF the people, but a governement FOR the people.
MY wing? I didn't know I had one! Does it have feathers?

Bill Hirst
August 3rd, 2005, 08:38 PM
It just goes to show that those sons of Beliel, Thomas and Scalia, are correct every once in a long while. This is an example of YOUR wing of the political spectrum believing that the government is best able to do everything FOR us and we are not a government OF the people, but a governement FOR the people.
Bah!
Curm, Curm, Curm
Whatever wing that is, it must be the same wing that authored the new energy bill. It has only token efforts at energy conservation, but huge benefits for those who profit from using energy, i.e. oil and electric companies.

By the way, I think it's a featherless wing. Like vampire bats, they do their work in the dark and drain blood from their victims.

woodswell
August 3rd, 2005, 10:09 PM
Judy, There is beginning to be backlash to this SCOTUS decision:
N.J. Development Plan Causes Rumbling in Town (http://www.npr.org/templates/story/story.php?storyId=4784368)
All Things Considered, August 3, 2005 · In one of many development plans that got a boost from the recent Supreme Court decision on eminent domain, Long Branch, N.J., plans to condemn dozens of modest bungalows along the shore so a developer can put up condos. The mayor think this would be great for tax revenue. Longtime residents -- and some lawmakers -- wonder about the limits of "public interest."
The broadcast went on to discuss how angry people are about this and how the court decision has many people becoming more activist about it.
Anne

Judy G. Russell
August 4th, 2005, 09:17 AM
I suspect this sort of thing will get more of a fight here than in most places. We have a great deal more emphasis on our State Constitution here (and its greater rights to individuals) than in most states. At least I hope...

chm
August 5th, 2005, 06:12 PM
The broadcast went on to discuss how angry people are about this and how the court decision has many people becoming more activist about it.

Yes. I saw an interesting report on the TV news last night (CNN? Not sure.) about all this.

They interviewed the lady in New London who brought her lawsuit to the Supreme Court. They also interviewed an old couple who were slated to lose their home to eminent domain.

All of these residents said they will not leave their homes and will have to be dragged out. This would make quite a scene!

Eminent domain for public good - sometimes. Besides, this is nothing new.
Eminent domain for private good, for commercial good - No. And the ramifications are scary (money talks).

Carolyn

chm
August 5th, 2005, 06:15 PM
Wow.

See, we don't want this kind of thing happening, do we?

chm

Lindsey
August 5th, 2005, 10:36 PM
Eminent domain for public good - sometimes. Besides, this is nothing new.
Eminent domain for private good, for commercial good - No.
But what about when private good and public good overlap? That was the question in Kelo. And as I recall the facts of the case, the Connecticut state constitution explicitly allowed eminent domain to be used for economic development.

Yes, certainly there need to be controls in place to prevent abuse of eminent domain. And I would heartily agree that states should take steps to put them in place. But at the same time, they need to be mindful of the needs of urban areas and the adverse effect it will have on them if absolute prohibitions are put on the use of eminent domain for economic development projects.

--Lindsey

Judy G. Russell
August 6th, 2005, 09:22 AM
But what about when private good and public good overlap? That was the question in Kelo. And as I recall the facts of the case, the Connecticut state constitution explicitly allowed eminent domain to be used for economic development.
The only thing I can find in the Connecticut Constitution says:

Article I, SEC. 11. The property of no person shall be taken for public use, without just compensation therefor.

Lindsey
August 6th, 2005, 11:09 PM
The only thing I can find in the Connecticut Constitution says:

Article I, SEC. 11. The property of no person shall be taken for public use, without just compensation therefor.
I was going by what I had read in the Kelo decision. Let me check it again... OK, my mistake: it's not the Connecticut state constitution, but Connecticut state law:

After the Superior Court ruled, both sides took appeals to the Supreme Court of Connecticut. That court held, over a dissent, that all of the City's proposed takings were valid. It began by upholding the lower court's determination that the takings were authorized by chapter 132, the State's municipal development statute. See Conn. Gen. Stat. §8-186 et seq. (2005). That statute expresses a legislative determination that the taking of land, even developed land, as part of an economic development project is a "public use" and in the "public interest." 268 Conn., at 18-28, 843 A. 2d, at 515-521.

So the central point remains: The state of Connecticut had specifically said that economic development was a legitimate public use.

--Lindsey

Judy G. Russell
August 7th, 2005, 10:39 AM
I have a sneaky suspicion that CT state law may get amended... And the mere fact that a legislature says something doesn't make it either true or right. Witness the old miscegenation statutes in the south.

chm
August 7th, 2005, 05:14 PM
But what about when private good and public good overlap?

Agreed. There are shades of gray.

It's good that some states are taking action. I do think that having "controls in place to prevent abuse", as you said, is necessary.

chm

Lindsey
August 7th, 2005, 10:12 PM
I have a sneaky suspicion that CT state law may get amended... And the mere fact that a legislature says something doesn't make it either true or right. Witness the old miscegenation statutes in the south.
I hardly think Connecticut's eminent domain statutes rise to the level of laws against miscegenation--or gay marriage, neither of which are/were confined to the South.

And yes, it's possible the Connecticut law may be amended, but both the Connecticut Supreme Court and the U.S. Supreme Court were looking at the law as it was at the time of the case. It just seems very odd to me that some of the same people who are highly critical of the federal courts for not deferring more to state law are among those who are horrified that in this case, the U.S. Supreme Court didn't step in to invalidate the state law.

If Connecticut does move to amend its law, I hope the legislature will be careful not to put the state's urban areas into a deadly bind.

--Lindsey