Eminent Domain Moratorium

Jacob Sullum | July 12, 2005

Responding to popular outrage over the U.S. Supreme Court's recent decision upholding the use of eminent domain for economic development, Connecticut legislators and Gov. M. Jodi Rell are calling for a moratorium on the practice until the legislature can decide whether it should be permitted. The moratorium would prevent forced transfers of property from one private owner to another that are aimed at generating jobs and tax revenue. The Institute for Justice, which represented the New London, Connecticut, property owners who brought the Supreme Court case, says the moratorium should apply to them as well. "When government intrudes on our homes," Rell said, "it must have a defensible reason. In the New London case, the reason was not defensible."

Comments

|7.12.05 @ 2:04PM|#

nice.

|7.12.05 @ 2:07PM|#

Whoa! Some good news to come out of my state for a change! You go, Jodi! And please tell the city of Bristol to keep its hands off the cheap mall two blocks from my house, okay?

|7.12.05 @ 2:08PM|#

What will be considered defensible? Or better yet, who will decide that? I have a feeling property oweners may be at the mercy of whoever is in elected office at the time.

|7.12.05 @ 2:13PM|#

Yogi,
You are at the mercy of whoever is in elected office, but you get to vote.
If they really want to, Yogi, they can draft you into the armed services. I would recommend not electing that sort of person, though.

|7.12.05 @ 2:19PM|#

I am certain that if I were a Connecticut legislator, I would be outraged that the U.S. Supreme Court refused to intervene to stop an exercise of eminent domain authorized by Connecticut law that my colleagues and I could have done something about at any time.

|7.12.05 @ 2:21PM|#

I predict that this thread will turn into joe vs. everybody else.

|7.12.05 @ 2:27PM|#

No, I'm all for having these issues debated and settled in the political branches. They're political issues.

|7.12.05 @ 2:36PM|#

This actually sounds like good news. Somebody go dig Warren out from under his pile of empty booze bottles so he can read this.

|7.12.05 @ 3:15PM|#

and nobody ever argues about political issues on H&R. ;)

What will be considered defensible? Or better yet, who will decide that? I have a feeling property oweners may be at the mercy of whoever is in elected office at the time.

the point is, Kelo ain't. for the realistic fan of property rights, this is a step in the right direction.

|7.12.05 @ 3:22PM|#

E.D. protections can be witten in to state constitutions and laws. So elect people to state government that will do just that. Problem solved.

|7.12.05 @ 3:23PM|#

Posturing and pandering. Nothing will change.

|7.12.05 @ 3:24PM|#

Actually, zach, the Kelo majority didn't say that such a judgement call was unnecessary, just that making that call was the job of the legislature, not the courts.

This action and the debate that follow it are the implementation of the reasoning in the Kele decision, not a refutation of it.

|7.12.05 @ 3:27PM|#

joe vs. everybody else

I loved that movie

|7.12.05 @ 3:33PM|#

Kelo allows the state to take your property for nearly any damn reason it wants to. That the citizenry may petition a state government to stop taking property for a specific purpose like graft-infested, "urban non-renewal" simply misses the point of creating specific enumerated rights. Indeed, the point of having constitutional rights is to keep from having to go beg the legislature in the first place.

|7.12.05 @ 3:36PM|#

"Indeed, the point of having constitutional rights is to keep from having to go beg the legislature in the first place."

And the point of a having a judiciary charged with interpretting the Constitution is to recognize that the meaning and application of those rights is not immediately apparent in every situation.

|7.12.05 @ 3:39PM|#

thecoach:
"You are at the mercy of whoever is in elected office, but you get to vote."

Oh goody. Lucky me.

|7.12.05 @ 3:45PM|#

And the point of a having a judiciary charged with interpretting the Constitution is to recognize that the meaning and application of those rights is not immediately apparent in every situation.

Yeah. It would be nice to have judiciary that would apply the plain English of the Constitution to situations where the state has obviously over-reached.

Still, I guess you go to court with the judiciary you have.

|7.12.05 @ 3:47PM|#

Let's say, just for the sake of argument, that it's OK if private property is taken for "public use." Or at least let's just say that we won't argue with it. (Just for the sake of argument.)

Now, "public use" is a phrase in need of definition. Whether you want to go to a contemporary dictionary, or a dictionary circa 1789, or court precedents, or whatever, you need to define it.

Regardless of how it's defined, the meaning should have, well, meaning. It should be something that's circumscribed. Some might construe it loosely, others narrowly, but it had damn well better have some sort of limits on it.

If the meaning is too broad then it becomes "Whenever the government feels like it." That's clearly no good. We can debate what the proper meaning is, but any blank check meaning is clearly no good. I mean, ideology aside, the phrase "public use" was put there to imply some sort of limitation, and blank checks aren't much of a limitation.

If in Kelo the Supremes had taken a hard case and deferred to the discretion of local officials I wouldn't be arguing with joe. The problem is that they didn't take a hard case. Rather, they set a precedent so broad that just about any sort of taking is now OK if the local authorities feel like it. ED is now a matter for the political process and is no longer subject to limits. Which sort of defeats the whole point of having the phrase "public use" in there in the first place. I mean, I thought the phrase was put there to limit the circumstances under which the political process could be used to take property.

Basically, in Kelo the Justices handed the other 2 branches of government a blank check. Not good.

|7.12.05 @ 3:48PM|#

See, I would think that if the language was so plain, and the overreaching so obvious, then somebody would have noticed of the course of the last century and a half.

But then, I don't assume my mental powers tower over those of such jurisprudential midgets as severl dozen United States Supreme Court justices.

|7.12.05 @ 3:50PM|#

I don't assume my mental powers tower over those of such jurisprudential midgets as severl dozen United States Supreme Court justices.

On the other hand, if you assume they MUST know more simply because of who they are, you're not just making an argument from authority; you're making it against yourself.

|7.12.05 @ 3:51PM|#

thoreau, the SCOTUS did not say that the government can take land for any reason, but that they have to take it for a public purpose. They then deferred to the legislative branch to make the judgement of what is a public purpose and what is not.

Who would you prefer making that judgement call - the courts, or the branch that is most answerable to public?

Jeff|7.12.05 @ 3:59PM|#

Both Eminent Domain and Moratorium sound like death-metal bands.

|7.12.05 @ 4:01PM|#

joe-

First, I don't presume that I'm smarter than the Justices. Smart and knowledgeable people frequently make bad decisions by abdicating responsibility.

Second, I don't want the third branch of government to decide each and every act of ED. But I do want them to draw some sort of line. If they don't, then the phrase "public use" becomes a blank check for the other 2 branches. That sort of defeats the purpose of having a written Constitution and Bill of Rights, if you let the other 2 branches decide what is and isn't free speech, what is and isn't due process, etc.

So, in a nutshell, I think the courts should:

1) Draw a line that falls short of a blank check.
2) Strike down uses of ED that clearly cross the line.
3) Defer to local authorities on hard cases that are close to the line.

Is that an unreasonable or arrogant stance?

|7.12.05 @ 4:08PM|#

Good news? Hmph. Must be a prank. No news is good news for liberty, deez daze.

|7.12.05 @ 4:09PM|#

hey whaddya know, this thread has become joe vs. everybody else. lol... anyway:

Actually, zach, the Kelo majority didn't say that such a judgement call was unnecessary, just that making that call was the job of the legislature, not the courts.

right. in other words, that the constitution didn't already forbid ED seizures for private use, and that state and local legislatures thus have the power to decide whether or not they'll allow it.

This action and the debate that follow it are the implementation of the reasoning in the Kele decision, not a refutation of it.

ok. either way, it's a refutation of the idea that ED ought to be used, or ought to be permitted to be used, for transferring property between private parties for the sole purpose of generating increased tax revenue.

again, this is a step in the right direction. i think a constitutional amendment is what's really called for, but i'm too much of a realist to think that'll happen in the near future.

|7.12.05 @ 4:10PM|#

Let's adapt joe's reasoning to something else in the Bill of Rights:

"The Constitution says 'Congress shall make no law respecting an establishment of religion,' but of course, there's no definition of what law might constitute an establishment of religion, or even what counts as 'religion.' Those questions are best left to the other 2 branches."

And joe, by your logic, none of us simpletons should ever disagree with a Supreme Court decision. After all, where did we go to law school?

|7.12.05 @ 4:19PM|#

You people need to get it through your stupid fucking heads. "Public Use" is anything that will make more money for me and my pals.

Now quit yer fuckin' bellyachin' and go buy yer own fuckin' City Council and Local Planning Board. Don't ya know how th' free enterprize system works?

|7.12.05 @ 4:19PM|#

thoreau,

The courts did draw a line that falls short of a blank check - they forbade private takings, which are takings that are not done to serve a public purpose. Like the line or not, they drew it.

Secondly, there is no right to be free from Eminent Domain, the way there is a right to free speech, gun ownership, assembly, security in one's person and papers, etc. The Fifth Amendment defines your rights in ED - you have to be paid just compensation when it is used, and it can only be used for a public use (defined, in an example of clear line drawing by the court, as using the land to advance a public purpose - again, you may not like the line, but they drew one).

The founders could have put a definition of public use that required public ownership or occuption of the land by the publica into the document if they wanted to. They did not, and instead left the definition of public use to its meaning under common law. And there it sits, following the continuing shaping and moulding that common law carries out.

The common law states that the term "public use" refers to using the land to further a public purpose. If the legislature(s) want to change that, they can change it.

|7.12.05 @ 4:22PM|#

joe-

They drew something that they're calling a line. But how meaningful is it? All they have to claim is that the taking is part of a plan to improve the local economy and standard of living. There are very few things that can't be packaged that way.

Lines should be meaningful, not merely present.

|7.12.05 @ 4:25PM|#

Joe-
Since the Kelo decision said that higher tax revenue (not just jobs) counts as a public purpose, how does this not bar ANY private taking so long as the recipient will pay a higher tax bill?

|7.12.05 @ 4:25PM|#

And joe, by your logic, none of us simpletons should ever disagree with a Supreme Court decision. After all, where did we go to law school?

joe doesn't even completely agree with the decision. he just thinks that none of us really understand what the decision meant or why it was made, and has taken it upon himself to enlighten us.

|7.12.05 @ 4:26PM|#

To wit, if the connected developer swears up and down that his plan will significantly boost tax revenues and make the place nicer to live in, and the city council goes along with it, no court will stop it.

Well, hell, every developer claims that he's going to work wonders for the local economy and quality of life. If the Supremes are signing off on any use of ED for any such project, the line that they drew is indeed meaningless.

|7.12.05 @ 4:26PM|#

...in such a way that he creates the illusion of being firmly in support of the decision, whether or not he means to.

|7.12.05 @ 4:29PM|#

Thoreau:

Kinda like a parent "drawing a line" with their kids. "You kids are only allowed to go out on weeknights if it's for 'educational purposes'". Then watch the ways the kids twist their parties to fit the description. 'But, ma, we were doing a sociological study on the effects of high school parties on teenagers'. Oh, well then...

MP|7.12.05 @ 4:31PM|#

The common law states that the term "public use" refers to using the land to further a public purpose.

joe, I assume you are deriving this definition from prior SCOTUS rulings (particularly the rulings regarding blight and Hawaii land redistribution). I'm not sure it is accurate to equate "common law" with SCOTUS precedents. When I see "common law", I equate that to concepts that generally predate SCOTUS. Maybe that's just me though...

In any event, it is always important to keep in mind that it was SCOTUS who slowly transformed "public use" into "public purpose". However, that shouldn't discount those of us who believe that Kelo simply compounded prior bad SCOTUS decisions, decisions that are still relatively recent in the historical context of this country. For someone so well versed, it is still surprising how easily you defer to precedent.

|7.12.05 @ 4:33PM|#

MP, actually for a country that's only 230 odd years old, the decisions aren't so relatively recent.

that doesn't make them good decisions in any way, but i'm just sayin.

|7.12.05 @ 4:36PM|#

"in other words, that the constitution didn't already forbid ED seizures for private use, and that state and local legislatures thus have the power to decide whether or not they'll allow it."

Right. The ruling affirmed that the Constitution doesn't forbid that.

"either way, it's a refutation of the idea that ED ought to be used, or ought to be permitted to be used, for transferring property between private parties for the sole purpose of generating increased tax revenue." You're getting weaselly with the word "permitted." The ruling stated that states are permitted to decide how to use ED - they can ban these sorts of takings, or allow them. Action by Connecticut to ban them is consistent with this statement.

Uh, Steve, the other branches define what is a religion, and what is religious expression, all the time. Can Uncle Jed chuck his property tax bill because he murmurs a Julia Child recipe in Pig Latin once a month in his living room? Nosiree.

MP|7.12.05 @ 4:41PM|#

actually for a country that's only 230 odd years old, the decisions aren't so relatively recent.

1954 - Berman v. Parker
1984 - Hawaii Housing Authority v. Midkiff

Fifty years is historically recent to me.

|7.12.05 @ 4:44PM|#

thoreau, Jennifer, to be honest, I would have preferred a clearer line myself. If the mayor tells his police chief to do something horrible, the chief can point at this case and that ruling and tell him, for certain, that he can't do that, because the city will get sued, and lose. If the mayor tells his Planning Director to do something horrible, we've basically got nothing except an appeal to his decency. I don't know how many mayors you know...

Steve, "And joe, by your logic, none of us simpletons should ever disagree with a Supreme Court decision." No, by all means, disagree. But there is a huge difference between claiming that your preferred result is a better one, and accusing the justices of stupidity and neglegence, which is exactly what you're doing when you claim that the "public use" clause cannot possibly, honestly, legitimately be read to allow for dispositions into private hands.

|7.12.05 @ 4:49PM|#

I would have preferred a clearer line myself.

So why exactly do you go around defending this ruling? You see the dangers in this ruling, you see the need for some sort of meaningful line, not a line that sounds nice in theory but has no force in practice. Yet you insist on arguing with the rest of us over Kelo.

I know that on other matters of ED you have very real disagreements with other posters on this forum, but on Kelo it seems like you're arguing because you can't bring yourself to agree with us.

|7.12.05 @ 4:49PM|#

thoreau, there is no language in the Constitution declaring that the judgements the states and municipalities make as they do their work have to be wise. There is, however, a whole boatload of case law that makes it perfectly clear that the wisdom of policy decisions is none of the courts' business.

Just as an appellate judge is not allowed to disregard the trial judge's findings of fact without a very clear showing that the contrary is true, neither are the courts allowed to set aside the political branches' judgement calls about what will, and what will not, serve a public purpose.

That said, I agree absolutely that city and state governments - that is, the politicians who run them - are way to willing to accept developers' promises about the good their projects will do. This is not a constitutional issue, however, but one that needs to be solved through legislation.

I've got this idea for a National Planning Commission, that city planners have to get permits from when the city wants to do a taking. The Commission would have to be empowered to rule on the merits of the case by enabling legislation in Congress.

|7.12.05 @ 4:52PM|#

MP, SCOTUS rulings are a continuation of common law. Whatever you think about the "living constitution," everyone agrees that common law is still with us.

And I disagree with those who reject all the precedents because the precedents are sound, not merely because they are precedents.

|7.12.05 @ 4:53PM|#

See, joe, if the only thing at stake here was the wisdom of a plan, well, I'd agree that the courts have no role here. But there's a right at stake: Your right to own and enjoy your property. The Constitution doesn't make that right inalienable, but it does mention a condition that must be satisfied before that right can be infringed.

Yes, I know, that condition is poorly defined, but if the other 2 branches of government (the ones that get to exercise power and have close contact with cash-laden developers) are allowed to define it, then they'll define it out of existence. "Public use is whatever I feel like!" So we need a third branch of government to enforce some sort of line, and say that on one side of the line the courts will allow the other 2 branches to decide the wisdom of the taking for themselves. But if the other 2 branches cross that line, well, the courts will step in and protect the homeowner's rights.

You'd agree with me if I were talking about, say, due process. Why are you in disagreement here?

|7.12.05 @ 4:54PM|#

joe,

Of course, the other 2 branches make some judgments about freedom of religion. But if they were given the leeway that SCOTUS gives city planners, they'd be free to decide that no, Mormonism isn't a real religion at all, or, no, mandatory prayer-time in public school isn't really an establishment of religion.

|7.12.05 @ 4:59PM|#

LOL, joe, do you realize that you just corrected me by practically repeating my own words back to me?

zach: state and local legislatures thus have the power to decide whether or not they'll allow it.
joe: states are permitted to decide how to use ED - they can ban these sorts of takings, or allow them.

again, thank you for trying to further clarify events for me, but i already understand what happened, and am still not happy about it.

|7.12.05 @ 4:59PM|#

"So why exactly do you go around defending this ruling?"

I defend it against the charge that it is wrong on the law, and wrong on the Constitution. It is not. I defend it against the charge that the majority plainly violated their oaths, and ruled in a way that is unconstitutional they did not.

There is a certain range of outcomes that would have been constitutionally viable. This decision is certainly within that range.

MP|7.12.05 @ 5:01PM|#

To restate joe's positions:

joe believes that "use" = "purpose". No rationale for this is supplied beyond deference to the aforementioned SCOTUS opinions.

joe believes that the role of SCOTUS is not to exist as a final arbitor of Constitutional questions when those questions deal with matters of "public policy". The court should defer anything related to public policy to the other branches of government. No rationale is given on why this doesn't also include Lawrence v. Texas, Brown v. Board of Education, etc.

|7.12.05 @ 5:03PM|#

I defend it against the charge that it is wrong on the law, and wrong on the Constitution.

joe, there are many Constitutional questions over reasonable people may disagree. But the Supremes didn't merely interpret the Constitution in a way that I wouldn't, they actually rendered a provision of the Bill of Rights meaningless. As I explained above, although in theory there's a line, in practice any developer can spew a line of BS about how his project will improve the local economy and standard of living. So in practice this ruling basically said "To hell with the 'public use' clause."

Bad interpretations on hard issues are one thing. But tossing out a part of the Constitution (or doing something that clearly has that effect) is something else.

There's no way that the ruling in Kelo can be considered Constitutionally sound if the "public use" criterion can be satisfied whenever a developer spouts a line of BS about how great his project will be.

|7.12.05 @ 5:04PM|#

thoreau,

"Yes, I know, that condition is poorly defined, but if the other 2 branches of government (the ones that get to exercise power and have close contact with cash-laden developers) are allowed to define it, then they'll define it out of existence."

That must explain why Connecticut is about to put a moratorium in place on private dispositions, in order to figure out the best place to draw the line. Because of the impossibility that they could decide to draw a line.

|7.12.05 @ 5:06PM|#

joe,

The meaning is quite apparent as the term in question was used in 1791. Indeed, essentially the Court made the term in question hollow enough to be able to fill with just about any old thing.

As to recognizing its plain meaning, you do realize that not every jurist accepts that the plain meaning, or the historical meaning, etc. is the appropriate standard, right?

And no, SCOTUS are not a continuation of common law. The SCOTUS is not a common law court and never has been one. Some state courts are common law courts however.

Here's a question for you: distinguish a private from a public use. Give us a principled example based on Kelo. Until you can do so, there is no reason to take you seriously.

thoreau,

The Fifth Amendment came into being in 1791.

|7.12.05 @ 5:10PM|#

OK, fair enough, I over-stated it. The other 2 branches aren't guaranteed to immediately abuse this ruling. But this ruling removed the notion of an explicit, enumerated right that courts will uphold. Instead we're now at the tender mercies the other 2 branches.

Again, the phrase "public use" was put in there as an explicit limitation on when the other 2 branches of government could invoke a power. The implication of an enumerated limit is that the courts will smack down the other 2 branches if they cross that line. In theory the Supremes might have drawn a line, but in practice that line can be crossed whenever a developer spews a line of BS. There's no getting around that fact.

Before Kelo, the people could hope that courts might defend their property rights if the other 2 branches of government made a decision that crossed a line. Now there is no (meaningful) line, and property owners are at the mercy of the other 2 branches of government. We've gone from 3 safeguards to 2, effectively, and that is worrisome. Abuse might not become ubiquitous, but it will undoubtedly become more frequent than it was before. That is indisputably a bad outcome, and it happened because the courts gave the "public use" phrase a meaning so broad that it is in effect meaningless.

|7.12.05 @ 5:11PM|#

Hakluyt-

Thank-you for the correction.

|7.12.05 @ 5:11PM|#

joe,

Let me note that by arguing that the Constitution "evolves" as you say, you are doing exactly what CJ Mashall condemned in Marbury - allowing any old whim trump the pre-eminent text of government.

stephan Kinsella|7.12.05 @ 5:13PM|#

Well golly gee, it looks like maybe such abuses CAN be tackled on a local level. So maybe I was right that the Supremes should have dismissed Kelo on the grounds that the 5th Amendment simply does not apply to the States.

|7.12.05 @ 5:20PM|#

thoreau,

To quote CJ Marshall:

It cannot be presumed that any clause in the constitution is intended without effect..."

joe,

To quote CJ Marshall:

"That the people have the original right to establish, such principles, as in their opinion, shall most conduce to their own happiness is the basis on which the American fabric has been erected. ... The principles, therefore, so established, are deemed fundamental. And as the authority from which they proceed is supreme, and can seldom act, they are designed to be permanent."

MP|7.12.05 @ 5:22PM|#

No, Stephan, I think the incorporation doctrine of the 14th amendment is pretty sound. Although I agree that substantive due process is BS, I do think that the privileges or immunities clause clearly was intended to implement the incorporation doctrine.

Anyhow, that distracts from the root issue, which is the definition of Use. Even if you disagree with the Incorporation doctrine, you still have to define Use as it applies to Federal takings.

|7.12.05 @ 5:22PM|#

joe,

I have to ask, is there any sort of government use, etc. of private property that you oppose? Because I can't recall ever seeing you actually call for a limitation of government powers in the area of property rights.

|7.12.05 @ 5:27PM|#

MP,

Yeah, the Supreme Court focused on the wrong clause of the 14th Amendment. Blame the Slaughterhouse Cases.

|7.12.05 @ 5:33PM|#

Anyhow, that distracts from the root issue, which is the definition of Use. Even if you disagree with the Incorporation doctrine, you still have to define Use as it applies to Federal takings.

Good point! What's to stop Congress from taking land for the purpose of (supposedly) improving interstate commerce?

What's that you say? You say that the Interstate Commerce Clause isn't a blank check? Well, that's the same point that we're trying to make about "public use."

The bottom line is that the biggest problem with our courts isn't their eagerness to exercise power and smack down the other 2 branches of government. No, the problem is their willingness to turn passages in the Constitution into blank checks.

|7.12.05 @ 5:42PM|#

Simple translation
House: Oh shit! They're pissed!
Senate: We need to act now
Gov: or get fired!

|7.12.05 @ 5:57PM|#

The Times reported that much of the furor over eminent domain is coming from the Christian Right, who feel that Churches, with their tax-exempt status, will get bulldozed in favor of shopping centers.

Thanks for once, Christians.

Of course, I think granting Churches tax-exempt status is fucking stupid, but thanks anyway.

|7.12.05 @ 6:07PM|#

The Times blames christians for everything. I'm starting to think they have developed a twitch and need to be fitted with nice white suits with extra long sleeves and fancy buckles. Then they can sit in the corner and rock back and forth while mumbling "christians... Bush... christians... land... christians, you're very clever young man but it's christians all the way down"

MP|7.12.05 @ 6:10PM|#

The Times reported that much of the furor over eminent domain is coming from the Christian Right, who feel that Churches, with their tax-exempt status, will get bulldozed in favor of shopping centers.

Do you have a link? I'd love to see how the Times comes to the conclusion of "much". Maybe a small fraction (and thus not particularly worth reporting on), but "much" is doubtful.

|7.12.05 @ 6:30PM|#

Thanks for the fair and balanced explanation of my arguments, MP. But if I may, I'd like to suggest that you're leaping to the "aha, contradiction!" argument a little too readily. One can endorse both judicial modesty (deferring to the legislature on policy questions) and still agree with Lawrence and Brown, by recognizing that the question "Does is violate a person's rights?" is a different question from "Is this a question of good policy?"

There are a number of different arguments being put forth. One of them is that the takings in question are a bad idea. People bring up the speculative nature of the benefits, the dishonesty of developers who promise those benefits, and the gullibility of the legislators who accept those promises. This is not the court's business, and separation of powers is an important doctrine.

Now, that doesn't answer the question of whether takings violate the owners' rights. But then, it's not supposed to. It just refutes the argument some raise, or kinda sorta raise, that the Supreme Court erred in deferring to the city's judgement about the project's benefits.

|7.12.05 @ 6:46PM|#

joe-

I agree that, overall, assessing the validity of a developer's claims should be the province of the city's planning department (executive branch), mayor (executive branch), and city council (legislative branch).

But you're missing my point: This isn't just a matter of policy for the other two branches of government. This is a matter where the Constitution laid down a criterion, and if the courts interpret the criterion too loosely then the other 2 branches of government can ignore the fact that the Constitution laid down a criterion. We can debate how to interpret that criterion, but it has to be something stringent enough that it can't be satisfied solely by saying that the local economy and standard of living will improve.

Why? The best reason is simply that the Constitution says the power of ED is a circumscribed power, something that can't just be exercised willy-nilly. We can debate about just how circumscribed it should be, but if the effect of the ruling is that ED can be used whenever the other 2 branches feel like it then the power is no longer circumscribed at all. That's clearly going too far.

In, the end, there's no getting around the fact that, in the aftermath of Kelo city governments can now take property whenever the political will is there, nullifying the whole notion that this power is supposed to be Constitutionally limited in some way.

You can keep saying that "it's a policy question" and "it's for the other branches of government", but the Constitution laid down a criterion, a limit, or whatever you want to call it. When the other two branches of government ignore the Constitution, the judiciary is supposed to smack them down. It's that simple. But the Supreme Court set down a criterion so loose that in practice the judiciary now has to take the other two branches at their word any time they want to take property.

The judges will say "Is it for public use?"

The city will say "Yes."

The homeowner will say "But they're giving it to the mayor's biggest campaign contributor!"

The mayor will say "This is part of a comprehensive plan for community redevelopment."

The homeowner will say "That plan is bunk!"

The mayor will say "The plan is sound."

The judges will say "The merits of the plan are a policy matter for the other 2 branches to decide. The taking is upheld."

So, all the other 2 branches really have to do is draw up a plan, spew a good line of BS, and they're off the hook. Sure, I just described most of politics, but the point is that ED is no longer circumscribed by the Constitution. It's now just one more piece of politics as usual.

I can't make it any clearer than that. If you still don't get it, I don't know what else to say.

|7.12.05 @ 6:46PM|#

One can endorse both judicial modesty (deferring to the legislature on policy questions) and still agree with Lawrence and Brown, by recognizing that the question "Does is violate a person's rights?" is a different question from "Is this a question of good policy?"

But in the eyes of the founding fathers, do you think that if they had to choose between "the Supreme Court protecting people's rights" and "the Supreme Court promoting good policy (which is somehow in conflict with the idea of promoting rights)", they would have chosen policy?

Also, doesn't this also mean that civil rights legislation should also be left to the states? The Constitution won't let states turn black people into slaves or take away their right to vote, but that's pretty much it. Suppose a state decides to charge black people higher taxes (to compensate for the greater likelihood of incarceration, maybe), or refuse to allow atheists to hold government jobs like schoolteacher. Should things like this be left to the states as well?

|7.12.05 @ 6:47PM|#

I posted before I saw Thoreau's. His points are better than mine.

|7.12.05 @ 6:50PM|#

Segregation was simply part of a comprehensive plan for managing local policy and economic development. It was a policy matter that should have been decided by the other 2 branches of government without judicial interference.

Anthony Gregory|7.12.05 @ 7:27PM|#

"Although I agree that substantive due process is BS, I do think that the privileges or immunities clause clearly was intended to implement the incorporation doctrine."

MP, the privileges or immunities clause specifies "citizens." Do you think it would be more Constitutional for the State of California to deny illegal immigrants of due process rights in trial, than it would be to deny those same rights of citizens?

The 14th Amendment is highly problematic.

|7.12.05 @ 7:56PM|#

You know, while I'm happy the Connecticut legislature is stepping into this, it doesn't make me feel warm and fuzzy. Here's why:

Private property (until recently) was an explicity enumerated constitutionally protected right. It is no longer. The fact that it takes the whim of a local legislature to make or break it might be good for residents in Connecticut- but not for the other forty nine states. If this whole 'property rights' thing were NOT an enumerated right, then rightly, those are the minutae which are supposed to be handled by the states' government.

But now that we've effectively had a constitutionally protected right removed, it's like nullifying the first amendment, and then saying "let the local governments hash it out".

There are some who say the same thing should happen to Roe v. Wade- and I would imagine that the very people (they know who they are) who think this is an issue for the states would be horrified if Roe V. Wade were returned to the states. At least with Roe V. Wade, there's no explicit, enumerated right to an abortion.

It's property rights, people. This isn't some obscure, tortured 'right', some clever lawyer 'discovered' in the constitution through highly elasticized readings and interpretations. It's spelled out. Clearly. Words mean things.

Paul

Paul

|7.12.05 @ 8:06PM|#

thoreau - hear, hear!!

Paul - but then you're ignoring all the precedent of the SCOTUS that has a more nuanced meaning of private property and what the definition of the word 'use' (as in public use) is. ;)

Yup, no matter how you slice it, Kelo sucks ass.

|7.12.05 @ 8:12PM|#

the SCOTUS did not say that the government can take land for any reason, but that they have to take it for a public purpose. They then deferred to the legislative branch to make the judgement of what is a public purpose and what is not.

And if that doesn't scare you to the core of what makes us free people, I have no idea what will. 1. Public purpose is not public use. 2. The patriot act has all kinds of provisions which allow law enforcement to breach all kinds of constitutionally protected rights, as long as they say it's fer fightin' terrorists. What's the difference? Hey, that's good enough for me! The folks doing the searching say it's for good stuff! The local governments say the property's for good stuff, so let 'em take it! Let the legislators decide!

Wrong. The courts decide, that's what courts do. They decide stuff. For the courts to say "just tell us the plan is for public use er purpose". Then the court goes further to say it won't judge the efficacy, realism, basis or sound logic, value or validity of the plan, just that there must be a plan?

I hate to inform you, but when it comes to our ENUMERATED rights, that's EXACTLY what the government tends towards: taking those rights away under the guise of a 'good plan'. It's necessary, really. We really promise. We're good guys, so give us the blank check. We won't misuse it.

News flash: When we give the government that blank check, we become a nation of men, not a nation of laws. It's ok as long as our guy's in there. (Hyper-encapsulated history lesson for those who were asleep when this was taught: The constitutional rights TRANSCEND the men in office, and stand above the elected officials.)

The SC is SUPPOSED to judge the use/misuse of exactly this thing. Otherwise, it never would have been enumerated in the constitution. The PURPOSE of rights being enumerated in the const., is so when they are challenged (or percieved to be challenged) the SC steps in and makes a judgement. The SC has now EXPLICITY stated that it makes no judgement, no interpretation of a property taking, as long as the government doing the taking 'CLAIMS' it's for the public -use- (scratch that) purpose.

Up theirs.

Paul

|7.12.05 @ 8:25PM|#

Hakluyt, It's so totally you. Welcome back! Don't swear at anybody.

"The meaning is quite apparent as the term in question was used in 1791." True, there was very little argument about the meaning of the takings clause in 1791. The knew that the definition of taking required the government to become the owner of the land, not merely to issue regulations that effected how it could be used. They also knew that a mill owner could flood the land of his upstream neighbors' land, because the operation of his mill, his privately owned for profit business, provided a public benefit. Yup, the meaning was plain when the amendment was adopted. However, the jurists of that period would not have even been able to formulate the question whether these takings were allowed under the Fifth Amendment, much less hold an opinion, any more than they would have held as opinion as to the validity of laws banning machine guns or explosive rounds.

"As to recognizing its plain meaning, you do realize that not every jurist accepts that the plain meaning, or the historical meaning, etc. is the appropriate standard, right?"

First, "plain meaning" and "historical meaning" are different concepts. Maybe you should just merge them into "natural meaning," and be done with it. ;-) Second, yes I do, though every faction of jurisprudence recognizes some variety of adherence to the meaning of the text, some connection between the black letter and how it is to be read in light of new circumstances. Those who make a point of trumpeting their determination to pretend we still drive around in buggies like to paint scary pictures of Michel Foucault being nominated by the next Democratic president, but all of them pick and choose which history they like.

"And no, SCOTUS are not a continuation of common law. The SCOTUS is not a common law court and never has been one. Some state courts are common law courts however." I stand corrected.

"Here's a question for you: distinguish a private from a public use. Give us a principled example based on Kelo."

A taking done for an illegitimate public purpose, such as the removal of left-handed people from a community. A taking done for no public purpose, such as giving the owner of one pool hall ownership of the other, as a favor to him.

There could also be arguments made about a lack of planning to justify the takings rendering them a violation of due process, or the disproportionate impact of the project on low income people violating equal protection (this is all about the little guy, remember). Yet for some reason, the Institute for Justice, which is such a reliable friend of the downtrodden, didn't see fit to argue these points. I wonder why.

"Until you can do so, there is no reason to take you seriously." I feel all tingly where by bathing suit goes when you talk like that.

MP|7.12.05 @ 8:31PM|#

MP, the privileges or immunities clause specifies "citizens." Do you think it would be more Constitutional for the State of California to deny illegal immigrants of due process rights in trial, than it would be to deny those same rights of citizens?

Yes.

The 14th Amendment is highly problematic.

Then amend the Constitution. Don't re-interpret it to fit your view of the way things should be.

|7.12.05 @ 8:33PM|#

thoreau, I do agree that the lack of review is troubling. But I think this is best remedied by looking to the Equal Protection and Due Process clauses.

But you are wrong, Kelo did not change what cities may do, just affirm what everyone realized was the status quo. I re-recant from a couple weeks ago.

|7.12.05 @ 8:39PM|#

Jennifer, Paul, the Fifth Amendment protects property rights by requiring the government to pay you when it uses eminent domain. It does not enumerate a right not to have your property taken by eminent domain.

BTW, as far as "public use is not public purpose, dammit!" - even the O'Connor dissent recognized that public purposes that ended with a private disposition could be legitimate. She discusses the need for a clear line, and even makes some of the "blank check" arguments. So no, that jusicial sentiment is not the equivalent of the politicized insistance that public use can only involve ultimate government ownership.

|7.12.05 @ 8:41PM|#

Regarding Kelo and the 14th amendment:

I understand the arguments that have been made on this forum against the "incorporation doctrine." I don't agree, but I understand.

If the Supremes had used Kelo to rule against the incorporation doctrine then I could understand why Stephan Kinsella might be happy. But that's not what they did. They ruled that a portion of the Bill of Rights is meaningless. You can applaud that if you like, but remember that they didn't just relax a restriction on the states. They also relaxed a restriction on the actions of Congress. I hope I'm wrong on this, but I fear that some day Congress will give us all an object lesson in the dangers of this ruling.

|7.12.05 @ 9:07PM|#

joe-

I thought that, prior to Kelo, if a city wanted to take property under ED it had to show that it was either combating blight (i.e. really awful neighborhoods, not merely a neighborhood that falls short of City Hall's hopes for the region) or else that it was going to build a school, a road, a park, etc.

And I thought that in Kelo nobody was alleging blight, at least not under old standards.

As to the lack of review: OK, at least you grant that it's troubling.

But how will due process claims fly? The city can say "Look, we held hearings. We had deliberative processes. We heard counter-arguments. But, at the end of the day, this is what we decided." And it will do no good to argue the merits of the case because the courts will find (quite correctly) that the process was thorough (due), so the merits of the result are a policy matter rather than a judicial matter. And the homeowner won't be able to argue that the decision was not merely unwise but unconstitutional, because the city will say "Look, we had a comprehensive plan for economic development, and our local political process was used to scrutinize and approve the plan."

I guess the homeowner could argue that the city council already had its mind made up before the hearings and reviews and other elements of due process started, so that the "due process" was in fact a sham, but what of it? They can always deny it, and insist that they approached the decision with an open mind. As long as they aren't dumb enough to put anything on paper, on a hard drive, or on tape, they're safe.

As to equal protection: I mean, the whole idea of taking property to revitalize a community is that the old owners will have less money than the new owners. So if the homeowners argue that they were discriminated against based on income, well, the city council can say that that's sort of the point, and point out that it was OK with the Supremes in Kelo.

If the homeowners argue that this was done because of their race, well, a few things. First, the sad fact is that ethnic enclaves frequently do have lower incomes, lower property values, and more crime than other parts of the city. The city can probably get away with arguing that factors other than race motivated the decision to take property and build a shopping mall. And if somebody says "Why didn't you use ED to shut down the trailer park with the meth labs?" they can probably come up with a rationale "Well, the trailer park lacked proximity to the major roads and office parks that make &ltinsert enclave name here> a prime candidate for commercial development" or something like that. And that pretext may or may not be total BS, but if it sounds convincing enough then the courts could find that the merits are a policy matter.

So I don't see how equal protection and due process arguments will protect people from havin their homes given to the mayor's biggest campaign contributor.

|7.12.05 @ 9:07PM|#

I should add something to this: "the Fifth Amendment protects property rights by requiring the government to pay you when it uses eminent domain. It does not enumerate a right not to have your property taken by eminent domain."

It limits to the government's authority to use eminent domain to public projects, but limiting the government's authority is not the same thing as enumerating a right.

|7.12.05 @ 9:52PM|#

There were two opinions written on this decision. One cited many hair-splitting precedents which stretched the meaning of 'public use' to its present non-meaning; the minority opinion cited the Constitution of the United States and included words to the effect that if this definition stood then nobody's property was safe. Four out of nine justices explicitly thought this decision was a bad idea; the others seem to have implicitly thought it was a bad idea, but "it's the law."

|7.12.05 @ 10:16PM|#

It's easy to envisage the terrible rationale that government may use to justify the seizing of private property from lower tax paying owners and then giving it to higher tax paying owners:

"The government will be better able to provide important and even ESSENTIAL services with the MORE PRODUCTIVE owners..."

And certainly, politically well connected folks will be able to prevail on the government to sieze desired property for them...all in the "public interest" of course.

The seizing of private property by the state for the benefit of other private owners offends so many peoples' sense of justice that more popular political movements and initiatives, such as this one in Connecticut may arise as a result of the Supremes' outrageous ruling.

|7.12.05 @ 10:46PM|#

joe:

I'm all for having these issues debated and settled in the political branches. They're political issues.

the Kelo majority didn't say that such a judgment call was unnecessary, just that making that call was the job of the legislature, not the courts.

joe seems not to understand that the central idea, indeed the genius, of our constitution is to limit what political majorities may do to individuals and political minorities.

joe:

Who would you prefer making that judgement call - the courts, or the branch that is most answerable to public?

This is also an error of logic. If the practice of taking private property for the benefit of other privte owners is forbidden by law, than no one has to make "that judgment call".

Also, by joe's rationale, it could be said that "If torture was only legal as a punishment, the branch of government that is most answerable to public could decide when it would be appropriate"

MP|7.13.05 @ 12:28AM|#

But how will due process claims fly?

Substantive Due Process, baby! If there is no "rational basis" for the law, then it fails Due Process.

From Bradley's dissent in the Slaughterhouse Cases:

"In my view, a law which prohibits a large class of citizens from adopting a lawful employment, or from following a lawful employment previously adopted, does deprive them of liberty as well as property, without due process of law."

Bradley somehow found fundamental (common law) rights in the Due Process clause of the 14th amendment. I believe that the origin of "Rational Basis" traces back to Justice Stone's opinion in US vs. Carolene:

"...and that a statute would deny due process which precluded the disproof in judicial proceedings of all facts which would show or tend to show that a statute depriving the suitor of life, liberty or property had a rational basis."

Thus, SCOTUS has built for itself the power to overrule any law, at any level, that they find unsatisfactory because it is irrational.

|7.13.05 @ 1:24AM|#

Thus, SCOTUS has built for itself the power to overrule any law, at any level, that they find unsatisfactory because it is irrational.

Yet they give Congress a blank check on so many things.

|7.13.05 @ 3:51AM|#

joe,

The knew that the definition of taking required the government to become the owner of the land, not merely to issue regulations that effected how it could be used.

Actually, that's not true; the concept of a regulatory taking is found in many 19th century court decisions. And of what is and is not a "taking" is not at issue here; its whether the taking is a for a "public purpose."

From the Fifth Amendment:

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

They also knew that a mill owner could flood the land of his upstream neighbors' land, because the operation of his mill, his privately owned for profit business, provided a public benefit.

That is a tort. In early common law an action for trespass would lie for any unauthorized entry - be it by a person or a thing. It could also be construed as a private nuisance. Anyway, I challenge you find a single case in either the state or federal courts in the early republic comes to the conclusion that you reach. You won't find any.

However, the jurists of that period would not have even been able to formulate the question whether these takings were allowed under the Fifth Amendment much less hold an opinion, any more than they would have held as opinion as to the validity of laws banning machine guns or explosive rounds.

This is a fallacious argument. Seizing land for private use (which is what you really advocate) was something fought throughout the 19th century in many contexts; be it for railroads, new factories, etc.

Those who make a point of trumpeting their determination to pretend we still drive around in buggies like to paint scary pictures of Michel Foucault being nominated by the next Democratic president, but all of them pick and choose which history they like.

Oh come on. Are ham-handed insults the really the best you can do? Indeed, if your problem is that some jurists don't adhere to certain principles, that doesn't seem like much of argument for abandoning the Constitution.

A taking done for an illegitimate public purpose, such as the removal of left-handed people from a community.

That's a not a taking! Read the Fifth Amendment's language:

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

PROPERTY! PROPERTY! PROPERTY! Just to clue you in, the 13th Amendment bans slavery and involuntary servitude (except in the case of prisoners, and even they aren't classified as property - real or chattels).

If you don't even understand the basic parameters of the clause, then I suggest you learn a little bit more about it than you do now. :)

A taking done for no public purpose, such as giving the owner of one pool hall ownership of the other, as a favor to him.

Sorry, this sentence makes no sense whatsoever; "ownership of the other?"

There could also be arguments made about a lack of planning to justify the takings rendering them a violation of due process, or the disproportionate impact of the project on low income people violating equal protection (this is all about the little guy, remember).

Both of these parameters persume that government may take property at a whim. Indeed, if the government loses all they have to do is re-double their efforts in planning or decrease the impact. These aren't barriers. If you know how government works you realize quite quickly that it will learn to jump through whatever hoops the court requires no matter what the merits of the government effort are. Not trying to sound cynical here, but really, come up with some less shitty than this. This is just a further illustration that you don't believe in private property rights.

I'll repeat my earlier query:

I have to ask, is there any sort of government use, etc. of private property that you oppose? Because I can't recall ever seeing you actually call for a limitation of government powers in the area of property rights.

|7.13.05 @ 4:00AM|#

joe,

First, "plain meaning" and "historical meaning" are different concepts.

I know, that's why I differentiate them.

thoreau,

You are correct. The majority created an entirely new "public purpose" standard out of thin air.

And yes, a sham purpose is quite difficult to prove barring stupidity by the government officials.

To follow up your comments on D.P. and E.P., note that these are always the "last gasp" claims of parties that have lost on other counts; and they generally are not considered convincing by the courts. Indeed, since the courts generally presume that localities are being honest, etc. whatever paper-thin barriers joe wants to put up become virtually meaningless.

|7.13.05 @ 4:08AM|#

For those who haven't read Kelo (meaning you joe), I would recommend Thomas' dissent. His discussion of the term "use" is fascinating.

Jadagul|7.13.05 @ 6:34AM|#

I think the real problem here is an almost complete breakdown in the separation of powers over the past century or so. It used to be that legislatures and executives considered themselves responsible for not violating the Constitution. Now they figure that it's the Court's job to police constitutionality, so they don't have to worry about it (see Bush on McCain-Feingold). I suspect that the Court's recent upswing in activism is simply taking on responsibilities that the other branches used to exercise on their own.

The problem is that we still pretend that the other branches worry about constitutionality. As I understand it, Kelo doesn't say "there are no limits on when Eminent Domain can occur"; it says "You can only use ED for a public purpose. It's your responsibility only to use it for a legitimate public purpose, because we can't tell whether you're misusing your power." This works as long as the other branches are honest and willing to self-regulate. But in our current climate of "the Court is the sole [as opposed to final] arbiter of Constitutionality," the rule we can't determine if this is constitutional transmutes into this is constitutional. The Connecticut legislation referenced in the original post is a rare example of the self-policing that really should happen more often, and on which the Court's decision was premised.

I wrote about this a bit more on my blog. Or, if you want to read a piece by someone who can actually write, this is a really good discussion (albeit one that has nothing to do with Kelo).

|7.13.05 @ 9:31AM|#

thoreau,

"I thought that, prior to Kelo, if a city wanted to take property under ED it had to show that it was either combating blight (i.e. really awful neighborhoods, not merely a neighborhood that falls short of City Hall's hopes for the region) or else that it was going to build a school, a road, a park, etc."

These types of takings took place before Kelo (NYT building), and the logic of previous decisions was understood to provide the legal basis. While Kelo was the first time the court has explicitly ruled on this question, the court was being asked to rule on a practice that was widely considered to be constitutional, not to establish a novel doctrine to allow what had heretofore been forbidden.

"But how will due process claims fly?" I believe it would require additional legislation in Congress to establish standards and conditions, and authorize some body (judicial or administrative board) to review local and state plans for adherence to these standards. I'm not sure the body of law exists, through previous decisions, to allow the federal courts to establish these standards on their own.

"As to equal protection: I mean, the whole idea of taking property to revitalize a community is that the old owners will have less money than the new owners." Not, that is not the idea, or at least it should not be. In New London, for example, the plans included waterfront parks, commercial space, and other features that would change the role the neighborhood played in the city's economic and social life. "Economic cleansing" should not be allowed under any circumstances, and I include snob zoning under that category. Unfortunately, the lawyers at IJ would rather gnaw off their own legs than help establish this legal protection for lower-income people.

MP|7.13.05 @ 9:46AM|#

Unfortunately, the lawyers at IJ would rather gnaw off their own legs than help establish this legal protection for lower-income people.

That's an absurd and insulting statement to make. Just because they don't agree with your reasoning behind your interpretation of the Constitution does not imply that they are intentionally using a strategy that avoids protecting lower-income people.

|7.13.05 @ 9:53AM|#

george, there were four decisions written about the case. Of those, three (the majority opinion, the concurrance, and one of the two dissents) thoroughly rejects Thomas's anachronistic reasoning.

Cripe, Haklyut, you missed about half my points.

'And of what is and is not a "taking" is not at issue here; its whether the taking is a for a "public purpose."' Though it deals with a diffderent section of the takings clause, the Lucas decision still represents a departure from the originalist understanding of the Fifth Amendment, a necessary one, based on changing circumstances and government practices. That was my point. And I reject your assertion that the doctrine of regulatory takings was anything but a novel invention of the Renquist court.

"That is a tort. In early common law an action for trespass would lie for any unauthorized entry - be it by a person or a thing. It could also be construed as a private nuisance." Except it was a tort that was rejected by the courts, on the grounds that the Mill Acts allowed the entry in the furtherance of an important public purpose (economic development).

"That's a not a taking!" It is if the process of removing them involved taking their property, so they have to move. Which is why the example I gave began "A taking done for..." Between that and your lack of knowledge that the word "other" can functinon as a noun, I'm amazed you can even read the decisions.

"Seizing land for private use (which is what you really advocate) was something fought throughout the 19th century in many contexts; be it for railroads, new factories, etc." So now we're in the 19th century/industrial era? I thought we were discussing the original, plain meaning of the text. This is why I accuse people like you, and Justice Thomas, of "picking and choosing which history they like."

And I've read Thomas's dissent, O'Connor's much better dissent, as well as the majority decision, thank you very much. Don't parachute in here ten threads later and tell me what I know and don't know about the case, ass.

|7.13.05 @ 10:01AM|#

MP, yes it is insulting. IJ and their defenders have been insulting everyone who doesn't agree with THEIR Fifth Amendment interpretation, and accusing them of not caring about "the little guy." This has been their main PR strategy - big bad rich people using their muscle against low income people. If you make that argument, and then refuse to argue on bahalf of low income people, and only make the legal argument that just so happens to establish a precedent that, hey look at that, would allow the rollback of policies that their rich bankrollers would like to see overturned, you bet I'm going to call you on your phoney populist bs.

And if you'd care to go back a week or two, Matt Welch had a post, with lengthy thread following, about how those gosh darn progressives don't care about the poor, because they agreed with the majority's interpretation of the phrase "public use."

So take the mote out of your own eye, buddy. If you run around spouting off about what a great defender of the downtrodden you are, and then refuse to argue in favor protecting the downtrodden, I'm going to call you on it.

|7.13.05 @ 10:03AM|#

The idea of a clear and meaningful line sticks with me...

In order to increase the public good, the state may develop a well-thought plan of cataloging every citizen's activities in public space and all activities already subject to some state regulation. (It'll help us prevent terror attacks)

Now, there's a bit of Constitution that says citizens have a right to privacy, but that privacy has been determined to have some limits, and can be invaded after some procedure.

Well, the Surveillance Ministry wants to honor the right to privacy, so it enacts bureacacy to keep itself from recreationally sniffing your underpants without three stamps of approval, and goes on to do it part to beat the terrorists.

I protest to the SCOTUS, over the state's nose in my underpants being unConstitutional, because there's no public good in the sniffing (the evidence shows I'm not a terrorist nor have I given any indication of such inclination). The Court could rule that there's precedent to allow invasion under some circumstances, and it up to the legislatures to determine the difference between a good sniff and a bad sniff.

The Court upheld a nominal right to privacy, drawing a clear line that the public good must be served in order to uphold a violation. Where's my effective right to privacy?

|7.13.05 @ 10:08AM|#

Unfortunately, the lawyers at IJ would rather gnaw off their own legs than help establish this legal protection for lower-income people.

Oh, to be as wealthy as the shopowners in downtown Pittsburgh defended by IJ...

|7.13.05 @ 10:10AM|#

Well, Dynamist, I suppose some folks here would point out that NOWHERE does the Constitution state that you have a right to keep the government's nose out of your underwear. Furthermore, having your underwear sniffed by bureaucrats can be defined as a Public Good, because what if your underwear were dirty and stinky and you tried to wear it out in public? And when you're indulging in your "right to privacy" you're probably not doing anything to increase the city's tax revenues.

|7.13.05 @ 10:12AM|#

Please note the phrase, "...THIS legal protection."

I'm sure they quite like to protect lower income people, when they can be used to further their political aims. My point is, they don't seem terribly interested in addressing the problem they claim to be so concerned about - that lower income people keep getting the short end of the stick in government actions.

|7.13.05 @ 10:17AM|#

that lower income people keep getting the short end of the stick in government actions.

Has there ever been a society where this WASN'T the case? All humans are corrupt, all governments are made of humans, therefore all governments are prone to bribery, and rich people can bribe more than the poor. And now that higher taxes is considered sufficient cause to take away a person's property, this'll get even worse; rich people can generally pay more taxes than the poor.

|7.13.05 @ 10:23AM|#

Thoreau, why do you discuss anything with Joe especially the issue of takings? Joe is a planner which means that he gets to pull wacky ideas out of his ass, insist they make all of us better, smarter, stronger and happier and implement them. Of course he sees nothing wrong with takings. He "takes" every day in his job. Zoning (another form of taking) probably comes as naturally as breathing to him. PLANNER = TAKER.

|7.13.05 @ 10:29AM|#

"Has there ever been a society where this WASN'T the case?"

There have probably been about as many such socieities as have enjoyed gender equality, racial equality, and untainted procedures for appointing political officials.

We don't throw our hands up and say "That's life" about those problems; we shouldn't do the same about poor people getting screwed. But we do.

Some of us do, anyway.

Jadagul|7.13.05 @ 10:32AM|#

<snark>And the rest of us become libertarians.</snark>

|7.13.05 @ 10:35AM|#

Joe-
The people who oppose Kelo aren't "throwing up their hands and saying we're screwed" in regards to government giving people the short end of the stick; they're trying to STOP it. Whereas you sound like you're trying to JUSTIFY it.

|7.13.05 @ 10:44AM|#

No, Jennifer, they are NOT trying to prevent poor people from getting the short end of the stick - they're after an entirely different end, and have hooked up with a set of poor people who they considered useful to their efforts to achieve that end.

If they were actually interested in protecting poor people from government depredations, they wouldn't have left the Equal Protection argument lying on the table.

They left it lying on the table, because defining economic status as a category of concern under Equal Protection violate their political and judicial philosophy. For all their chest beating and posturing, they'd rather see those people lose their homes than see that doctrine become enshrined in the law. Which would be fine, if they hadn't emitted so many greenhouse gasses proclaiming their concern for the little, and impugning everyone else's.

As for me, I've been arguing a couple of narrow points of law. One of which - the proposals to create protections under EP and DP - have the protection of low income people from getting pushed around as their primary motivation, not merely as a pretext.

|7.13.05 @ 10:47AM|#

joe-

I don't claim to be an expert on IJ, but you can't always judge a lawyer's ideology by the arguments that the lawyer makes in court. I don't know why IJ chose to make some arguments and not others. My guess would be that in their brief they followed a strategy that they thought would have the best chance of swaying 5 Justices to their side of the case. And that in oral arguments their time is limited.

Mind you, maybe I'm wrong on this. But I don't know enough to conclude with certainty that IJ avoided arguments about disproportionate effect on poor people because they found the arguments distasteful.

The only thing that I do know about IJ is that the cases they take seem (for the most part) pretty worthy to me. If they are cherry-picking cases that suit an agenda, well, the fact remains that (most of) their cases seem pretty worthy to me. And I say that as a libertarian with decidedly left-leaning sympathies.

Now, if I should find out that they deliberately refrain from making arguments that would win worthwhile cases, solely because they find those arguments distasteful to their economic snobbery, then I would change my mind about IJ. I wouldn't necessarily change my mind about their cases, but I would conclude that this particular band of litigators is not a very decent bunch of people.

But I don't know enough to draw that conclusion.

|7.13.05 @ 10:53AM|#

Jennifer

joe and his faction believe they have a monopoly on all compassion and social virtue. You are either "with them" or you are "with the eaters of children".

protecting lower-income people = taking from other people

gender equality = absolute adherence to the agenda of the radical gender feminists

racial equality = racial preferences for the politically favored

untainted procedures for appointing political officials = procedures which guarantee that our faction is in power

Any questioning of any of these positions is bigotry, hatred, homophobia, racism or some other demonization.

|7.13.05 @ 11:03AM|#

I could defend joe's stance on the grounds that it's better to keep as many states' rights as we can instead of deferring even more to the feds.

But I think it's extremely naiive to think that legislators are going to ever make more than a symbolic gesture toward granting more liberty to individuals when the vast majority of the populace want the liberties of others to be limited.

Jadagul|7.13.05 @ 11:06AM|#

Joe: I could be wrong, but it seems to me that if we applied equal protection to economic status, welfare would be unconstitutional. I suppose you can wriggle out of it somehow, but if the government isn't allowed to discriminate based on economic status, I want my welfare check! They can't deny it to me just because I have money and all those poor people don't; that's discrimination (I actually have a communist friend who says we can't means-test Social Security because it would violate EP in exactly that way). I'm curious if you have a way out of that one.

Whoever-you-are whose name doesn't show up: lay off of Joe. I disagree with him on a lot of things, but he strikes me as an honest, forthright, decent guy who happens to have political beliefs that are 1) really wrong but 2) not so wrong that he thinks we're completely insane. We should treasure people like him, because we can actually talk to them and have interesting discussions that might even be productive. Save the rants for the actual trolls.

|7.13.05 @ 11:19AM|#

[blank]: I prefer to be an unaligned Eater of Children. It's not that I'm anti-joe, as much as I'm pro-baby soup.

MP|7.13.05 @ 11:23AM|#

Now, if I should find out that they deliberately refrain from making arguments that would win worthwhile cases, solely because they find those arguments distasteful to their economic snobbery, then I would change my mind about IJ.

I don't see how, if one has an established set of principles, and then constructs arguments based on those principles while ignoring arguments that are contrary to those principles, one can be simultaneous accused of being unprincipled yet praised for pulling out all the stops to achieve a particular goal. Is it truly honorable to win at all costs, even if that means disregarding the philosophical foundations that underly your theory of law and justice?

I agree with joe that it is unfair to accuse those who support the jurisprudence behind Kelo of having an agenda to hurt (or a willingness to disregard the needs of) lower-income people. I also believe that it is entirely possible that one's principled stance on Constitutional interpretation may lead to outcomes that are socially undesirable. If one desires a particular outcome, the only honorable approach is to take steps that are still consistent with your fundamental principles. If your principles force you to accept a Constitutional interpretation that doesn't help you achieve your desired outcome, then the only pricipled approach is to work to amend the Constitution. Those who would re-interpret it to satisfy their outcome driven desires are people I truly despise.

(Note to joe, I'm not accusing you of being one of these people. I've always seen you be very consistent with your principled view of the law. I do, however, strongly reject your view.)

|7.13.05 @ 11:58AM|#

I don't understand these arguments. No one anywhere has any right to take anything of mine without my permission.

|7.13.05 @ 12:05PM|#

thoreau,

I suggest the mystery of IJ's political leanings can be cleared up by a two minute visit to their website. I believe it's www.ij.org. You will probably like the ideology on display, but that doesn't change the fact that it is as obviously the central purpose of their litigation as that of the Rutherford Institute. And I never claimed that their ideology was "economic snobbery," just a conservatism in which the alleviation of injustice towards the "little guy" plays much less of a role than it seems to play in their extensive PR campaigns.

Thank you, MP. FWIW, I don't consider the IJ to be hostile, or even neutral, towards the well-being of poor people. I just don't believe that the desire to advocate for them plays as much of a role in their philosophy as it does in mine, or as the IJ claims it does in their press releases.

|7.13.05 @ 12:10PM|#

I just don't believe that the desire to advocate for them plays as much of a role in their philosophy as it does in mine,

Thanks again for reminding us how much better you are.

|7.13.05 @ 12:18PM|#

Also, I don't have the equal-protection-based-on-economic-status thing entirely ready for the racetrack yet. There was, howeve, an affordable housing/snob zoning case in Jersey that used EP to knock down exclusionary zoning. In addition, you are allowed to violate equal protection standards if you can show a compelling public interest in doing so - and the alleviation of poverty is such an interest - and show that the actions you propose are intended to meet that end, have a good chance of meeting that end, and are tailored to involve as little of the equal protection violation as they can without infringing on the pursuit of the public goal.

If an equal protection standard was adopted, the city would have to defend its plans from the charges that 1) they discriminated against the poor, 2) the change they're pursuing in the neighborhood would not advance a legitimate public goal, and 3) the "footprint" of the takings was larger than it absolutely had to be. What's more, their arguments would be reviewed using a "strict scrutiny" standard, meaning that the courts would not defer to the city's assertions, but would require a showing, and many of the irrelevant objections to the decision that have come up on these threads (tax revenue isn't really a compelling public interest, they real purpose is "economic cleansing," they could have revitalized the neighborhood with rezoning and much more limited land acquisitions, the benefits aren't likely to actually come to pass) would suddenly be issues for the courts to consider on their merits.

|7.13.05 @ 2:33PM|#

joe-

I have visited their website, and I like the cases that they show: They talk the good libertarian talk about economic freedom, but unlike a lot of libertarians they tend to emphasize cases that involve "the little guy" rather than, say, complain about how the IRS is sucking Donald Trump dry.

Do they genuinely want to advance the interests of "the little guy"? Or do they just use sympathetic cases to set precedents that help "the big guy"? Or do they care about ideology above all else?

Well, I can't be sure, but I very much doubt that they are using "the little guy" as a Trojan Horse for "the big guy", given the nature of some of their cases.

They may put ideology first, or maybe they see economic freedom and the (long term) interests of "the little guy" as intertwined. I can't be sure.

What I do know is that I can't conclude much about a lawyer's beliefs from the arguments that he makes in court. Yes, some of those arguments will be based on the precedent that he would like to see emerge from the case (especially when the case is at the Supreme Court) but the lawyer's choice of arguments will also depend on what he thinks will work, what will be most likely to influence the judges to find in his favor. There's a balance to be struck, and I can't infer ideology solely from the choice of arguments made.

|7.13.05 @ 4:50PM|#

Moratoria.

You buncha moronia.

|7.13.05 @ 6:16PM|#

joe,

I responded to each and every one of your points. And to be frank, you are the one is not responding to my points. You left at least three or four unanswered.

Though it deals with a diffderent section of the takings clause, the Lucas decision still represents a departure from the originalist understanding of the Fifth Amendment, a necessary one, based on changing circumstances and government practices.

No, as I stated earlier, Lucas has a long series of precedents behind it - well into the 19th century. Only the ignorant think that the issue of regulatory takings started with Lucas.

And I reject your assertion that the doctrine of regulatory takings was anything but a novel invention of the Renquist court.

You can reject it all you want to; that doesn't explain a shitload of case law that preceded it. Anyway, you've already demonstrated that you don't know what the fuck you are talking about and probably never will because you'll never read the case law in this area.

Except it was a tort that was rejected by the courts, on the grounds that the Mill Acts allowed the entry in the furtherance of an important public purpose (economic development).

And the problem with is that it state law prior to the 14th Amendment. Thus your example is inapposite and simply ignores a change in the law; indeed, a change in the constitutional framework. Further, it fails to take into account the fact the Mill Acts were either repealed by state legislatures or overturned by state courts by the 1830s.

I refer you to: Morton J. Horwitz, The Transformation of American Law, 1780-1860

It is if the process of removing them involved taking their property, so they have to move.

That's a specious argument and you know it because you didn't mention land. You don't know what the fuck you are talking about.

So now we're in the 19th century/industrial era?

I'm there because you keep on erroneously claiming that regulatory takings cases start with Lucas. Go to your local law school and sit in on a class in property law.

You've not read Thomas's dissent; you've never read the case.

BTW, I note you avoid my question - again!

You don't make the E.P. claim because that would never fly in a court. Sorry, it just doesn't work. You continue to think that E.P. and D.P. claims are something that have great weight in the courts; they don't. They are the last, desperate efforts of any litigant. What's really wacky is that you want to hollow out and make a nullity of the "public use" language of the Fifth Amendment, and dump everything into the E.P. area. Of course, you really don't know what E.P. case law has meant over the years (as you almost admit), but so be it.

Finally, note now that everyone of your arguments has been destroyed, you've now set your sights on attacking the motives of the IJ. Honestly your efforts are laughable.

...and the alleviation of poverty is such an interest...

Got any named case law to back that assertion up with?

The problem with your E.P. analysis is that you are applying the race/national origin standard of review. Economic issues fall under the "rational basis" standard because the 14th Amendment says nothing about economic issues. Furthermore, we already have provisions of the Constitution which protect property rights; one is the Fifth Amendment. Of course the actual language of the text, etc. means nothing to you, so...

Jadagul,

Yes, applying the E.P. clause to economic status would be laughable.

|7.13.05 @ 6:18PM|#

Basically joe is an uber-judicial activist. He wants to apply the E.P. clause to areas of life that it was never meant to apply to. He essentially believes that he can write into the text whatever suits his fancy.

|7.13.05 @ 6:21PM|#

joe,

BTW, regarding the Mills Acts, you are making the same mistake that Ten Commandments activists make about state-sponsored churches in the 19th century. By appealing to the Mills Acts (like their appear to state sponsored churches) you simply ignore the change in constitutional structure following the 14th Amendment. Basically anything that states did prior to its passage that would offend the 5th Amendment are nullity.

|7.14.05 @ 12:22AM|#

Hakluyt-

This is admittedly a semantic point, but I don't think of joe as being much of a judicial "activist." In the past few months I've stated on this forum my stance on that phrase, and I'll state it again:

One can define "judicial activist" in more than one way. There are 2 particularly common usages, and I have a preference among them.

The first common usage is "substituting one's own preferences for the Constitution and/or precedent." That's certainly a reasonable usage. One objection, however, is that it would apply to almost any bad ruling when there's a Constitutional question on the table. The phrase "judicial activism" has connotations that are somewhat narrower than "bad rulings on Constitutional issues." So I'd like different terms for different types of bad rulings.

A second objection is that there's another usage that really gets to the root of the word "activism", and in that usage "activism" is not necessarily a bad thing. It can be a good thing, depending on the context.

The second usage refers to very aggressive actions by the judiciary, or a judiciary that isn't afraid to mix it up with the other branches of government and challenge them head-on when controversial issues are at stake. That isn't necessarily a bad thing, if, say, the controversy involves oppression of a minority, or some other action that the popular branches of government are especially prone to.

The biggest problem with the federal judiciary today is that they aren't willing to revoke any blank checks. They allow Congress to use a handful of clauses in the Constitution ("interstate commerce", "general welfare") to render the rest of the document meaningless. That is a very big problem indeed, but it is hardly the hallmark of a branch of government that is drunk on power and eager to assert its will despite resistance from the other branches.

joe seems to be cool with the blank checks. That means that I strongly disagree with him on many judicial matters, but "activist" is hardly the term that I'd use to describe that attitude.

Admittedly, this is a semantic point. Both usages are reasonable, but they are substantially different. When there are 2 reasonable but different usages, the most important thing for clear communication is that we pick one usage and stick with it. My preference is for the second usage, but if the first usage became standard I would of course adapt.

|7.14.05 @ 1:53AM|#

thoreau,

I'm well aware of how the term is used and joe is an activist within one of the well known meanings of the term (there are about six of them if you look at the term historically). I did go to law school after all. :) joe's guilty of articulating rights and/or powers that the Constitution simply doesn't possess either within its four corners or even by some gloss placed on it by tradition. The rest of your comments are fairly pedestrian and do not undermine my usage of the term.

Anyway, the term applies across the political spectrum, BTW; Rhenquist in the 1970s and 1980s was quite activist in expanding the court's abstention powers for example (court created abstention being a concept which is patently unconstitutional) before Scalia forcefully shot down this practice in 1988. "Liberal" jurists have been more than happy to expand the boundaries of D.P. far past what the term originally meant; that is the process that is due. The notion of substantive D.P. has literally no historical grounding prior to its invention in the 20th century.

I myself use it exclusively for those who would like the Federal Courts to become something more like law makers as opposed to law interpreters; that is those that invent rights or powers. And joe's confusion in this matters is illustrated by some of his claims; for example, that SCOTUS is a common law court (it never has been). joe essentially argues that Constitution has whatever meaning that strikes his fancy; that's why he prattles on about a "living" Constitution, about creating out of the blue an economic strict scrutiny standard for E.P., etc. No, joe is definately an uber-judicial activist.

joe is also an elitist. Witness his sneering comments about the IJ and how they must have duped their clients in the Kelo case. Apparently the clients were just too stupid to make up their own mind about what they wanted.

Anyway, one of the reasons why Scalia (I could refer you to a bunch of articles and the like he has written on the matter if you would like) and others like to pin their jurisprudence on history and tradition (and thus originalism) is because judicial review is deligitmized otherwise. The courts undermine their political authority when they cast themselves far afield of the meaning of the text. You can read more of his thoughts in: Originalism: The Lesser Evil, 57 U. Cin. L. Rev 849

|7.14.05 @ 1:58AM|#

joe,

You what is one of the funnier things about Lucas? The geography of the land in question. As of 1994 this is what the beach looked like:

House House House House Lucas Land House

The notion that sticking another house on an already crowded beach was going to lead to greater erosion is hogwash. I've seen it suggested that that graft was involved in the matter and that someone in government was attempting to force Lucas to sell low.

|7.14.05 @ 6:19AM|#

Those of us who would like to see the courts examine the original text of the Constitution and its Amendments, and research the meaning of those words, whether in the plain English of the day, or as specialized legal jargon at the time of their ratification, informed by the debates in conventions, Congress and/or state legislatures, are by no means silly to fear a Foucault taking a seat on the bench. Some of the "living constitution" crowd explicitly apply the tactics of Frankfurt School-descended "criticism", namely the Critical Studies Movement. If some marxoid comes up with a novel interpretation for "bill of attainder", he shouldn't be able to use his position as the law clerk to Justice Alzheimer to sneak an amendment into the Constitution by way of a footnote in a concurring opinion, to be mined for law review articles until the new meaning, a necessary one, based on changing circumstances and government practices... becomes popular among the clerisy of law school and polisci profs determined to turn the basic law of the land into a ouija board. If you want to change the Constitution, amend the damn thing.

As for joe's continual reference to public purpose. That term in not in the Constitution. Judges allowed themselves to use it synonymously with public use, and the precedents joe loves so could always have been reconsidered and the power of the state restricted, by returning to a more careful reading. joe, like many a "Progressive", wants judicial review to work as a one-way ratchet. I consider overturning plain error to be more important than stare decisis. As Emerson warned, "A foolish consistency...". If, in the last 50 years, local authorities have been taking greater and greater power unto themselves regarding Eminent Domain, it would have been perfectly fine for the SCOTUS to draw a much brighter line, and claw back some rights for individuals.

As for the CT moratorium, even joe could not object if Nutmeggers amended their state constitution in order to make Kelo-style takings illegal, without depending on the whims of future legislatures.

Kevin

|7.14.05 @ 10:54AM|#

Fuck you, Gary, you're dodging on the "left handed people" example makes it clear you're being disingenuous, and I'm not intersted.

I know how much law I've studied, I know which cases I've read and haven't read, and I don't really give a shit about passing muster in your fucked up little world.