Early Draft of the Kelo opinion surfaces

Ah, the spectre has finally crossed the Atlantic.

It’s not exactly theft (or the abolition of property) either,
though. Perhaps it might be illuminating to consider other
cases in which (1) sometimes someone does X to someone else
and pays for it, and that isn’t a crime; (2) sometimes someone
does X to someone else uncompensated, and that is a crime;
and see how it looks when (3) someone does X to someone against
their will but compensates them (presumably at what some third
party determines to be the market rate).

– X is “having sex with”. Case 1 is prostitution, which is
less clearly acceptable than (other?) commerce but generally
regarded as a matter for the consciences of the individuals
involved. Case 2 is rape. Case 3 looks a lot more like rape
than like prostitution to me.

– X is “demanding labour from”. Case 1 is employment, which
few seem to mind much. Case 2 is kidnap and slavery, or
something of the kind. Case 3 is, I suppose, kidnap and
indentured servitude of some sort. Again, seems much nearer
to 2 than to 1.

Anyone got an example where 3 *isn’t* much nearer 2 than 1?

Some noble sentiments indeed, albeit in support of an untenable conclusion. Nevertheless, I must call shenanigans. For one thing the un-American (anti-American? Note to self: Must ask KR’s opinion on this matter) spelling of labor. Also when I retyped the selections into a MS Word document and then placed same over a pdf file I made of the original HTML on this web page THEY LINED UP EXACTLY- word for word and letter for letter. Hence, shenanigans. I’m quite up on the latest terms of art in Internet document authentication so I’m not sure whether these selections constitute fakes or frauds or perhaps both. Maybe someone can clarify matters.

Perhaps they will fall into the newly-minted category of “fake but accurate”? Truth is so confusing these days.

As popular as the activist Scalia Four are around here, I would have expected to see at least a couple of posts addressing the actual decision the majority wrote. _Kelo_ is pretty closely in line with US eminent domain case law right back to _Bradley_ (1896), and very much in the tradition of deference to a state court in findings of fact.

What has people worked up, I think, is the fact that Pfizer is a privately held corporation; eminent domain to build a street zoned for shopping is different from eminent domain to build a private mall. The redevelopment project, however, already had to meet judicial review in the Connecticut court, under the standard that the project as a whole met a legitimate “public use” and was only incidentally aimed at Pfizer. An analogous situation would be an airport expansion in a one-airline hub city, which clearly benefits one private company but does so in pursuit of a public rationale into which circumstances might equally have plugged any other company. Under longstanding case law, this situation falls within the scope of the 5th Amendment takings clause.

Certainly, such situations are ripe for abuse, but a competent court had already determined that no such abuse had occurred here. Judicial deference, working as designed.

The crux of the issue seems to be the amount of money that is transferred to the recalcitrant property owners. Of course the property in question will be worth more than replacement value, market value for existing use, etc….

There is no reason that we can not legislate that any windfall profits be generously shared with the current owners.

Thus we serve both the public good and ensure that private individuals standing in the way of the public good are not unduly harmed.

I do sometimes think that CT would benefit from having a lawyer on board.

then you lie down with a cold towel over your head and it goes away?

I don’t think the SC could have done anything else.

Other than Thomas, the dissents were unwilling to even meaningfully question whether using eminent domain to upgrade “blighted” inner city areas was appropriate. They agreed that it most certainly was acceptable, and cited as justification a series of legislative findings as to the evils of blighted neighborhoods, and how those evils affected the public collectively.

But then they felt that it was wrong to use eminent domain to take land to upgrade “economically distressed” regions, and they dismissed out of hand legislative findings regarding the evils of economically distressed neighborhoods.

So, in the minority view (sans Thomas), comprehensive plan for urban renewal: good place to use eminent domain. Comprehensive plan for revitalization of economically distressed regions: not a good place to use eminent domain.

My reading of the majority opinion is that they recognized this contradiction, which is basically saying that the govt can take from the poor and give to the middle class and rich, but not take from the middle class and give to the rich and very rich.

They couldn’t find a principled distinction between the two. The minority’s distinction, the legislative findings regarding how blighted areas were really really bad, was pretty paper thin since setting levels of priority like that is largely a legislative perogative, and if you’re going to let them do it in one case, you kind of have to let them decide always.

So, lacking a legal justification for separating the two, and having only politicl justifications regarding just how much eminent domain the american people want to accept, they decided on a hands off approach where the majority of the decision making gets made at local levels by elected officials, ie, the political branches.

I guess you can criticize the justices for all switching positions on how activist the courts should be in matters of local government, but that’s pretty much what the decision was about- is this a place where local governments should be constantly questioned by judges? Or a place where local governments should sort out and decide what does and does not benefit the public?

Incidentally, that’s also probably the best way to understand Kennedy’s concurrence. He argued that in this case, with a comprehensive economic revitalization plan executed as part of a government program to fix a region that had been condemned as economically distressed, there wasn’t enough danger of abuse for the Court to put local governments on a permanent short leash regarding their takings power. But he suggested that maybe there could be categories of takings in the future that are greater risks of abuse, that might justify a presumption of improper takings, and strict court oversight.

The whole thing is about activism versus restraint in court oversight of local government, and its a good illustration of how there’s really no one who believes “always restraint!” or “always activism!” Its about whether the particular issue is such that its justified.

Obviously, people disagree on that.

So Marx is writing for the SC now? Very interesting indeed.

…and if it doesn’t fit, you must evict.

Let’s not forget that when O’Conner says

“Any property may now be taken for the benefit of another private party, but the fallout from this decision will not be random,” O’Connor wrote. “The beneficiaries are likely to be those citizens with disproportionate influence and power in the political process, including large corporations and development firms.”

She ‘s just pointing out that there is a long tradition of private companies screwing state and local governments and getting away with it. At least my hero Scalia and the conservatives Rehnquist and Thomas joined her. If only one more Justice understood public use as use by the public, and not some tortured connection to proposed tax revenue and perhaps higher employment. Because my link shows many examples of companies promising tax revenue and jobs and then blowing town when the fallout starts to settle. Thanks US Supreme Court for reinterpreting “Public Use” to mean Private Use that might, might, help the public (if the stars align correctly and enough backroom deals occur).

Thing is, public use does NOT mean use by the public, in the sense of entering the place and making use of it.

“The public” doesn’t enter and use a military base. But its certainly public use. The same is true of power plants, etc. The public makes use of the benefits provided by the land, not the actual physical land.

You cannot pay fair market value when taking under Eminent Domain.

I think this may be related to the distiction in the “Manifesto” quote above – between ‘individual property’ that indeed has no fair market value and ‘capital’ that most certainly does. What’s being expropriated in Kelo is ‘individual property’, correct?

Some of the comments above confuse political problems with legal problems. Many of the economic development programs are handled badly by local government, or result in big corporations screwing the locals in various ways.

That doesn’t mean that economic development programs are unconstituional as a matter of law, however–that simply means that local governments are doing a bad job, and the voters need to make them do a better one.

Other comments above seem to reflect the view that ALL eminent domain is wrong. There’s certainly no support for that notion in the constituion, which expressly allows eminent domain. Lurking behind some of this resistenace to Kelo is that radical notion that even regulation of private property, e. g., environmental laws, ought not to be allowed.

_I do sometimes think that CT would benefit from having a lawyer on board. At present, we have none._
Isn’t Micha still nominally involved in the blog? And isnt’ he a lawyer by now?

Francis, pretty close. The lines were drawn the exact same except O’Conner agreed with the majority, but abstained from the decision.

But you’ve gotten you reasons wrong. In Lawrence the dissent is outraged over the courts decision to federaly mandate that individuals have a “fundamental right” to sodomy, even though nothing but a tortured stream of case law could get you there from the Constitution.
In Kelo, the dissent is outraged over the courts decision to allow state governments to infringe upon the specific, Constitutionaly enumerated right to property.

It is the same old debate between living document interpretation and original intent (if you want to change it, amend it) interpretation.

Scott, fair market value is the amount that a willing buyer would pay to a willing seller. It doesn’t say anything at all about whether the seller actually is willing.

“Market value” implies the transaction is voluntary by both parties (i.e. it took place in the market instead of the courtroom). The “fair market value” of your car isn’t $10 just because I’d probably be willing to pay that to take it from you.

Jet,
Note that the idea that the court found a “fundamental right to engage in sodomy” comes only from the dissenting opinion, and that there’s no such claim (since it would be stupid) in the majority opinion. That was a dishonest bit of rhetoric on Scalia’s part to say the least. Kennedy’s opinion in Lawrence does allow people to engage in sodomy w/o state interfearance, but to say that it found a “fundamental right” to sodomy was sophistry of the first rate. (I can’t tell if you endorse this bit of nonsense by Scalia or not, but either ways, it was nonsense.)

Matt, I’ll grant that was some uncareful wording by Scalia, but it is still quite a stretch to get from the 14th amendment to sodomy as “protected expression of liberty” (although I support full and equal gay rights, I think this was a poor vehicle for those rights).

Pat, as far as I know, “activist judges” has usually been a label used for those who bend or reinterpret the Constitution in a manner that those who wrote it did not intend for. Joseph Story’s opinion on the 5th amendment makes quite clear what the original intent was thought to be in his day (when he could probably talk to a few witnesses of the Constitutions writing). And the government taking property from one private party and giving it to another private party was expressly against the original intent of the 5th amendment, regardless of the case law that’s been leading up to Kelo. And since those who don’t consider original intent very important are considered liberal, activist judges and liberal judges are synonymous (since they both appear to interpret the Constitution as they please).

I have no idea how you came to interpret “judicial activism” as judges enforcing the Constitution on local governments. Kind of like calling judges who enforce the right of women to vote when the state says they can’t, “judicial activists”. Hogwash.

Amazing that so many on this thread assume the legitimacy of these extracts or ignore the question. Seems to me they’re obviously fakes from the diction and the spelling cited above.

I’m not accusing you of faking them, Kieran, and you’ve cited an anonymous (and therefore questionable) source.

All I know is, I’m living on 16 acres of undeveloped property, with subdivisions popping up all around, and I just saw any chance that I’ll be allowed to hold onto my retirement savings until I’m ready to retire, go up in smoke.

rea,

“It’s not exactly doing away with private property, to take something and PAY FOR IT, now is it?”

And likewise it’s not exactly doing away with a woman’s right to her body, to rape her and PAY FOR IT, now is it?

Nominally is a nice way of putting it. Though maybe you have to pass a bar to count as a lawyer–except in academia.

““It’s not exactly doing away with private property, to take something and PAY FOR IT, now is it?”

“And likewise it’s not exactly doing away with a woman’s right to her body, to rape her and PAY FOR IT, now is it?

Property = sex for you,huh?

I am puzzled that so few people recognize the writing of Karl Marx. It is so obvious. Of course, you chance of getting the book right is 50/50 since he wrote only 2. My guess is “The Communist Manifesto” is because in the first book, “Capital,” Marx diagnoses the syndrom. On the second one, he offers the solution.

Whenever I read cant such as “…comprehensive economic revitalization plan executed as part of a government program to fix a region that had been condemned as economically distressed…” I know the writer is pulling my leg. Or at least I hope so. The very idea that govt can do anything more for economic development that provide sound weights and measures and honest courts — ok, WPA-type projects in extremis are fine with me too — is preposterous. I don’t think that anyone can cite even one eco development program which used condemnation and was successful. The economy simply doesn’t work that way. Eminent domain is NOT an essential of the sort of eco devlopment projects which succeed.

Yes…..it is really quite interesting that so many on the left are so willing to defend this coercive and massive redistribution of wealth from working class homeowners to private developers and big corporations.

It’s hard to see how any substantive (as opposed to procedural) constitutional restriction on takings of property can be justified when the 5th and 13th amendments are read as permitting conscription.

John,

Here is the different, here is a good analogy when it come to conscription. (1) The government conscript you to fight WWII or (2) the government conscript you, and then lease you out to work for a major corporation.

When it comes down to it, this ruling makes perfect sense. If the Commerce Clause means that the federal government can regulate wheat grown in your backyard for pure personal consumption because you would have had to purchase that wheat if you hadn’t grown it. Then confiscating private property go give to another party as private property because some 19th hole board meeting decided that a few jobs and some tax revenue would be created, can be considered “public use”. What a crock of utter shit. Lawyers get so caught up in their own words that anything sounds reasonable after they rubbed their asses on it.

The only good thing to come out of Kelo was the O’Conner showed she might have some balls and actually gives a shit about the Constitution after all. Other than that, it was just more damage to the Consitution furthering the concept that it can mean what it explicitly does not.

Do “blight” and “economic distress” have specific meanings at law? (I mean, I’d say that Contra Costa County, CA, is blighted by overpriced subdivisions… does that count?)

By the way, this case was litigated by the right-wing “Institute for Justice”, which turns out to have initially been funded by the hard-right Koch family foundations, run by two deeply unscrupulous and wealthy brothers. The IJ is now soliciting donations under the name “Castle Coaltion”, which I suppose will protect people who own castles.

“Just because you’re on their side doesn’t mean they’re on your side.”