Early Draft of the Kelo opinion surfaces

by Kieran Healy on June 24, 2005

An anonymous correspondent (signing himself only as “The Moor”) sends me two snippets from what he assures me is a section of the majority opinion in Kelo vs New London that was cut at the last minute:

You are horrified at our intending to do away with private property. But in your existing society, private property is already done away with for nine-tenths of the population; its existence for the few is solely due to its non-existence in the hands of those nine-tenths. You reproach us, therefore, with intending to do away with a form of property, the necessary condition for whose existence is the non-existence of any property for the immense majority of society. In one word, you reproach us with intending to do away with your property. Precisely so; that is just what we intend. From the moment when labour can no longer be converted into capital, money, or rent, into a social power capable of being monopolised, i.e., from the moment when individual property can no longer be transformed into bourgeois property, into capital, from that moment, you say, individuality vanishes. You must, therefore, confess that by “individual” you mean no other person than the bourgeois, than the middle-class owner of property. This person must, indeed, be swept out of the way, and made impossible.

And another:

In fact, this proposition has at all times been made use of by the champions of the state of society prevailing at any given time. First comes the claims of the government and everything that sticks to it, since it is the social organ for the maintenance of the social order; then comes the claims of the various kinds of private property, for the various kinds of private property are the foundations of society, etc. One sees that such hollow phrases are the foundations of society, etc. One sees that such hollow phrases can be twisted and turned as desired.

{ 72 comments }

1

abb1 06.24.05 at 5:46 am

Ah, the spectre has finally crossed the Atlantic.

2

rea 06.24.05 at 7:18 am

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

3

Kieran Healy 06.24.05 at 7:24 am

I think if someone is absolutely unwilling to part with something, and someone else comes along and takes it anyway, handing over some money in return, then an exchange has certainly taken place, but I wouldn’t say it was a “sale” under the usual definition of that word.

4

jet 06.24.05 at 7:32 am

Rea,
The transaction in inherently unfair. First, power is now given to local city governments to decide what is fair or not. Second, you, as the homeowner will now have your property confiscated and you will be paid the market value for that property, regardless of its investment value or extra value to you personally. The city then gets to make extra cash through the new Wal-Mart that is opened there. The Wal-Mart turns the property into a huge investment as it is now zoned commercial and worth 10X what it paid the city to steal it from you. And the city officials who made this decision. Well they are assured that their reelection coffers will overflow with Wal-Mart money, cause that is what bought-and-paid for means.

Just as the Supreme Court spit in the face of the 10th amendment, in Bush vs. Dieing Cancer Patients; the Supreme Court now is hosing down the 5th amendment with a long string of urine in Kelo.

…nor shall private property be taken for public use, without just compensation.

How the hell is giving it to Wal-Mart or a mega-housing corp “public use”. I’m part of the public, do I get to use it?

5

g 06.24.05 at 7:35 am

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?

6

jet 06.24.05 at 7:39 am

g: Very succinct, that is a great way of putting the arguement.

7

Barry Freed 06.24.05 at 7:49 am

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.

8

john 06.24.05 at 7:51 am

Rea:

If the state can achieve a positive return on the investment made in the purchase of property through the present value of the increased tax revenue, then the property owner has by defintion been underpaid. End of story. This fact alone is a demonstration that compenation was not just, and if compensation was just by this measure, the state would be indifferent to the use of eminent domain. It would not choose to do so for private users, and would only do so for true public purposes such as highways, etc.

9

Kieran Healy 06.24.05 at 7:53 am

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

I deny everything! And if the quotations turn out to be fake, then CT would like to break that story, too.

10

abb1 06.24.05 at 8:07 am

…a demonstration that compenation was not just…

Stop whining, people. Compelling Public Interest is The King here. Be grateful for being compensated at all, you greedy little bastards.

11

Barry Freed 06.24.05 at 8:07 am

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

12

eudoxis 06.24.05 at 8:25 am

Hillarious! How absurd the complaints about this decision are.

13

Joshua W. Burton 06.24.05 at 8:28 am

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.

14

Anonymous 06.24.05 at 8:35 am

Good lord. Those supposed excerpts are not even in the realm of something destined for a supreme court opinion. They may have served as an interesting point of conversation here, but, honestly, you should know better.

15

decon 06.24.05 at 8:46 am

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.

16

Kieran Healy 06.24.05 at 8:46 am

Good lord. Those supposed excerpts are not even in the realm of something destined for a supreme court opinion. They may have served as an interesting point of conversation here, but, honestly, you should know better.

Um. Oh dear.

17

Kieran Healy 06.24.05 at 8:48 am

I would have expected to see at least a couple of posts addressing the actual decision the majority wrote.

I do sometimes think that CT would benefit from having a lawyer on board. At present, we have none.

18

g 06.24.05 at 8:52 am

Oh dear, indeed. Mister Anonymous, I suggest that you pick a random sentence
from the article and ask Google where it comes from.

19

dsquared 06.24.05 at 9:03 am

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?

20

Kieran Healy 06.24.05 at 9:04 am

Yes, of course. It’s after midnight on a Friday night here in Australia. A man can get strange notions.

21

Pat 06.24.05 at 9:23 am

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.

22

rea 06.24.05 at 9:42 am

Well, in fact, I’m an attorney with some small experience litigating these issues, although that’s not the primary focus of my practice. If I were on the Supreme Court, I might construe “public use” a tad more narrowly than did the majority in Kelo.

Calling the decision the end of private property, however, is ridiculous. The decison is not out of the mainstream of the last century or so of condemnation jurisprudence. The legal system on the whole resolves these issues, not perfectly, but fairly well. Beware those who call for radical change in the guise of protecting private property

23

dofp 06.24.05 at 9:45 am

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

24

jet 06.24.05 at 9:53 am

Damn lawyers are making the Supreme Court’s decision sound perfectly reasonable.

25

abb1 06.24.05 at 9:56 am

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

26

eudoxis 06.24.05 at 10:00 am

One can easily imagine that the poor and politically disconnected will continue to be the main target of redevelopment plans. The distinction between puplic use and private gain, such as it was, is blurred. If there is no principled distinction between the value of one property versus another, there is much less so between a private individual contribution to public use or private gain.

27

jet 06.24.05 at 10:14 am

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).

28

Brett Bellmore 06.24.05 at 10:22 am

“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.”

True, it’s more in the nature of the straw that broke the camel’s back, rather than a thousand pound boulder. But the camel is still lying there with a broken back, all the same.

29

Pat 06.24.05 at 10:54 am

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.

30

Scott 06.24.05 at 11:05 am

You cannot pay fair market value when taking under Eminent Domain. Fair market value is what the owner will willingly accept, and if you take the house, it wasn’t given up willingly. So yes, if I want $100 to sell you a $10 bill, $100 is the fair market value (even if you’d be insane to pay it).

Unreasonable? No. If I sell something to you for $X, then X is worth more to me than what I sold, but what I sold is worth more to you than X. The thing I sold doesn’t have an inherent ‘value’ that is the same for everyone who could own it.

If what I said is above is wrong, then it is impossible for any exchange to be fair to both parties.

31

abb1 06.24.05 at 11:22 am

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?

32

Scott Lemieux 06.24.05 at 11:36 am

Yes, clearly if the Supreme Court doesn’t start reading substantive content into the phrase “public purpose” after a couple hundred years of not doing so private property will essentially cease to exist, just as it already has in the liberal democracies that don’t have a takings clause at all.

33

rea 06.24.05 at 11:45 am

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.

34

David Moles 06.24.05 at 11:56 am

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.

Those of you inclined to simplify Kelo in terms of “taking from the middle class to give to the rich” may want to consider Hawaii Housing Authority et. al. v. Midkiff et. al., in which the SC upheld the authority of the state government of Hawaii to condemn large rental tracts owned by a handful of rich landowners, break them up, and transfer them to the renters.

(Of course, for the modern conflicted progressive it’s not quite that simple, since the reason so much property was in the hands of these few rich landowners was that it was a descendant of the pre-colonial Polynesian feudal system, and this could be looked at as yet more colonialist expropriation of aboriginal land… Then again, I suspect a lot of those renters were native Hawaiians, too.)

35

Matt 06.24.05 at 12:09 pm

_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?

36

Francis 06.24.05 at 12:26 pm

ooh pick me; pick me. (or not)

what’s really entertaining about the split between majority and dissent is its relationship to the Lawrence (texas homosexuality) decision.

i haven’t had time to line up the judges exactly, but i’ll bet that the dissent is pretty close to the same in both decisions.

In Lawrence, the dissent is outraged over the court’s interference in a state’s decision to interfere with personal liberty; in Kelo the dissent is outraged over the court’s refusal to interfere in a state’s decision to interfere with economic liberty.

hmmmm.

37

jet 06.24.05 at 1:36 pm

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.

38

Dan Simon 06.24.05 at 1:44 pm

The really entertaining part is watching conservatives who were vigorously defending democratic rule against judicial tyranny until yesterday, suddenly finding a Strange New Respect for an activist, expansive interpretation of “fundamental Constitutional rights”. Apparently, the prospect of getting to pick the next members of America’s de facto ruling junta has gotten them to rethink the wisdom of democracy even faster than I expected it would.

39

Scott 06.24.05 at 2:15 pm

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.

40

jet 06.24.05 at 2:23 pm

Dan Simon,
it was the liberal “activist” on the supreme court who ruled in the majority on Kelo. The 3 conservatives and one moderate where the ones in the minority.

41

Matt 06.24.05 at 2:32 pm

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.)

42

Pat 06.24.05 at 2:32 pm

Jet-

Activist, used by people more intelligent than Rush Limbaugh and/or planarian worms, doesn’t mean liberal. It means the court keeping other branches of government on a short leash by taking lots of cases and invalidating lots of decisions.

Stringently policing the line between “fixing urban blight” and “fixing economic distress,” for example, would entail taking many cases, and judging/invalidating many legislative acts of many local governments.

That’s judicial activism. It doesn’t matter whether its liberal or conservative.

And it isn’t automatically bad. Its just a style of judging. People tend to love it or hate it depending on whether it goes their way.

So, the irony is, the judges who usually support restraint are arguing for a very active, “activist” court, and the judges who usually are willing to take on a lot of cases are arguing that this is an issue inappropriate for large scale judicial review.

43

jet 06.24.05 at 3:03 pm

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.

44

David Moles 06.24.05 at 3:36 pm

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.

And it’s not $50K just because I’d probably be greedy enough to sell it for that and you’d probably be dumb enough to buy it, either. A single transaction is not a market. It’s $11K, because that’s what a buyer in my zip code should expect to pay for a 2002 Solara SE V6 with 48,000 miles on it, and what a seller in my zip code should expect to get. You can claim that’s not what the words mean till you’re blue in the face, but that’s what the law means by them.

45

CKR 06.24.05 at 3:46 pm

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.

46

abb1 06.24.05 at 3:53 pm

Well, it may be true for 2002 Solara SE V6, but what’s the monetary value of the house where you were born and grew up, where your father built that swingset and treehouse for you, etc. There’s no market for sentimental values.

47

Kieran Healy 06.24.05 at 4:36 pm

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.

ckr, it has to be said that my source has been questioned in many ways, and at many times.

48

Dan Simon 06.24.05 at 4:36 pm

Jet, I’m using “judicial activism” in the only sense in which it makes sense to me: the (ab)use of judicial authority to overrule democratically enacted laws. And yes, Pat, many hypocrites do “tend to love it or hate it depending on whether it goes their way”–but I’m not one of them. I take a principled stand against it, irrespective of its political direction in any particular case.

The recent battle over judicial nominees in the US has been accompanied by much ranting on the right about liberals trying to defend their favorite judicial fiats from the righteous fury of an outraged democratic populace. And I’ve agreed with much of that ranting. But I’m also under no illusions regarding how ideological conservatives would feel about antidemocratic judicial rulings if the Supreme Court were to suddenly fall into the hands of their soulmates–as it well might, any day now. And Kelo is an elegant demonstration that when the chips are down, conservatives have no more compunction about imposing their politics undemocratically, through a tyrannical judiciary, than liberals do.

49

Brett Bellmore 06.24.05 at 4:39 pm

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.

50

Francis 06.24.05 at 4:53 pm

brett, start the process for subdividing. even if you don’t complete it, the city will have to pay you based on what you could have gotten had you completed the subdivision process.

jet, i just disagree with your post 37 and following. Kelo is precisely in line with 200 years of con. law regarding deference to the legislative branch on the factual determination of whether a use is public or not. It would have been far more “activist” (terrible word) for the Court to assert the right to judicial review of that legislative determination.

51

John T. Kennedy 06.24.05 at 7:27 pm

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?

52

Keith M Ellis 06.24.05 at 9:38 pm

“So Marx is writing for the SC now?”

Shhh! This is a community admittance test. Don’t spoil it.

53

micah 06.24.05 at 11:31 pm

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

54

Matt 06.25.05 at 12:13 am

Micah! So glad to see you. Don’t worry- you’re already as much of a lawyer as I hope to ever be.

55

rea 06.25.05 at 12:25 am

““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?

56

Minh-Duc 06.25.05 at 12:38 am

Let me guess, “The Communist Manifesto”?

Kieran, you are simply brilliant. The funniest post on this case.

57

Minh-Duc 06.25.05 at 12:44 am

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.

58

JR 06.25.05 at 9:06 am

I thought the use of government power for the benefit of big business was called crony capitalism, not communism. And I hadn’t imagined that Marx would consider the tumble-down houses of working-class families to be “bourgeois property.” But I’ve gone back and checked the Manifesto, and I see now that it reads:

The multi-nationals have nothing to lose but their chains. They have a world to win. Corporations of all nations, unite!

So I guess I was wrong. Thanks for the correction.

59

David Sucher 06.25.05 at 10:14 am

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.

60

Lisa Williams 06.25.05 at 11:11 am

This seems like a perfect time for local legislatures to come to the rescue. I admit, I hadn’t been paying too much attention to this case. I thought, well, sometimes a highway or some other public building has to be built…then I heard that New London was tearing down someone’s house to give the property to a private developer because they believed that what got built would produce more tax revenue.

I guess I better go out and paint my fence before my town decides to take my house, bulldoze it, and put a 7-11 there; after all, commercial property tax rates are almost twice residential rates where I live.

As a citizen that’s not the way I want things to work. I’d support a law in my state banning municipalities from taking property by eminent domain for purposes other than creating public amenities (roads, police station, etc).

61

David T. Beito 06.25.05 at 6:56 pm

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.

62

Pat 06.25.05 at 10:26 pm

Wow, you’d almost think they were interested in the rule of law, precedent, and in making judicial decisions that are better thought out than the “we know improper takings when we see it” ruling by the conservative minority.

But that can’t be it, it must just be some bizarre psychological reason.

63

John Quiggin 06.25.05 at 11:05 pm

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.

64

goatchowder 06.26.05 at 1:48 am

Ah, shit. Now that they’ve done this, there’s no hope of the residents and landowners of Arlington suing Bush and his backers for stealing “The Ballbark at Arlingon” from them.

65

Minh-Duc 06.26.05 at 10:43 am

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.

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Randolph Fritz 06.26.05 at 6:38 pm

Brett, it’s very unlikely that your property would be taken for redevelopment; by and large takings are used areas where development would not otherwise occur.

By the way, so far as I can tell, a decision in favor of Kelo et al would have primarily protected residential landlords, especially slumlords, from urban renewal. I don’t think it would have particularly protected most homeowners from loss, since they are much more at risk from bad financial luck and of course renters are not even considered. Despite all talk of the rights of people to their homes, the arguments in favor of Kelo et al. seems to me not to address those rights.

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jet 06.26.05 at 11:00 pm

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.

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Pat 06.27.05 at 8:46 am

When O’Connor figures out how to explain her specific endorsement of takings for urban renewal of blighted areas, and her specific objection to takings for urban renewal of economically distressed areas, then and only then will I respect her opinion in this case.

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David Moles 06.27.05 at 2:41 pm

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?)

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Minh-Duc 06.27.05 at 8:51 pm

Compare with my county, the county next door is in “economic distress.” Let tear down the whole county. If you cannot tell the different between a slum and an average but not wealthy neighborhood, you surely belong in the Supreme Court.

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Randolph Fritz 06.27.05 at 10:08 pm

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.”

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Nick 06.29.05 at 8:28 am

g: This whole thing seems to be an A-Team episode waiting to happen. You know how they all go. A restaurant owner is being pressured to sell his place to someone else but he refuses, they call the A-Team… guns are fired but nobody is hit… a car is flipped but everyone walks away… I love it when a plan comes together.

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