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The Post-Kelo Backlash Continues
Alabama has just outlawed private-to-private eminent domain transfers, except in "blighted" areas.
|7.27.05 @ 3:43PM|#
Wouldn't the term "backlash" suggest an action that is somehow
in opposition to the thing being backlashed against?
"Kelo" said that the states should set their own standards for the
use of eminent domain. Alabama's response was to set standards for
the use of eminent domain.
Good for Alabama.
|7.27.05 @ 3:47PM|#
Russ R,
The working definition of blight is "galloping vacancy." A degree
of vacancy and abandonment in an area that is sufficienty
pervuasive as to result in, by itself and without external economic
pressures, further abandonment and vacancy within and adjacent to
the district.
|7.27.05 @ 3:55PM|#
The Alabama Legislature is actually in recess but the Governor called a special session to deal with the budget. They passed this as a "get something on the books" measure. My rep was on the radio monday(?) stating that they'll revisit ED with a more strongly worded AL Constitutional amendment when they reconvene in Sep(?).
|7.27.05 @ 3:56PM|#
Blighted? Pretty much covers the whole state, doesn't it?
Ok, OK, Lyrnyd. I know. Southern man don't need me 'round
either.
Amy Phillips|7.27.05 @ 4:00PM|#
According to the New York Times and the state of New York, Times Square was "blighted" and could therefore be seized to build a new building for the newspaper. Somehow I'm doubting that land in one of the most heavily trafficked areas of a city with astronomical land values was having a big problem with buildings being abandoned and left vacant.
|7.27.05 @ 4:02PM|#
Blighted? Pretty much covers the whole state, doesn't
it?
Thought provoking. Could then surrounding states sieze the blighted
state and divy it up for the greater good of the public?
Or maybe the federal government would sieze it and then transfer it
to a stateless government! Oh yeah, the US isn't into rebuilding
states! :-)
|7.27.05 @ 4:10PM|#
joe
Wouldn't the term "backlash" suggest an action that is somehow
in opposition to the thing being backlashed against?
"Kelo" said that the states should set their own standards for the
use of eminent domain. Alabama's response was to set standards for
the use of eminent domain.
Just last year they placed Amendment 3 on the ballot and it passed.
The bad thing was, the general public didn't know what the hell it
meant. Here was the wording:
"to authorize a county commission of any county or any municipality
therein to perform certain actions for the purpose of economic and
industrial development in the county"
If anyone had read the actual amendment back then, they would have
seen that the local government was given the right to take anything
for whatever reason they saw fit. I would caution that Alabamians
judge politicians by their actions and not their words, I'm sure
they have left themselve plenty of wiggle room.
|7.27.05 @ 4:12PM|#
Why all this fury over ED? It's much better for government to seize your property and pay you something for it than the other increasingly popular statist tactic--calling your property a wetland or endangered species habitat.
|7.27.05 @ 4:14PM|#
Amy,
That was pretty silly. Of course, there's nothing to stop the New
York Assembly from crafting a tighter definition of "blighted."
|7.27.05 @ 4:16PM|#
JMoore,
Well, the government can never truly give you market value in the
case of ED.
|7.27.05 @ 4:17PM|#
I know, but it's better than nothing. Not that I favor its use, especially for private-private transfers.
|7.27.05 @ 4:20PM|#
That, BTW, was a minor threadjack meant to draw attention to the
excellent article on the Endangered Species Act.
Apologies for the interruption... now back to our regularly
scheduled bitching... :)
|7.27.05 @ 4:22PM|#
Apologies for the interruption... now back to our regularly
scheduled bitching... :)
Come now, a little threadjacking could never derail the standard
bitching.
|7.27.05 @ 4:22PM|#
"Alabama is merely recognizing the wrongheaded nature of the Kelo decision..." by doing exactly what Kelo authorizes, in the manner it recommends.
|7.27.05 @ 4:28PM|#
Blighted is anything that the government's cronies call
"blighted".
If there are black people or hispanics living there, they don't
even need their cronies to tell them it's blighted.
|7.27.05 @ 4:39PM|#
The Oregon house is working on a similar bill.
It's a backlash because it is spurred by people who were unhappy to
learn that the court would essentially strip the words "public use"
from the constitution. They responded in the only way they could;
if you're fine with that result, great. But I do wonder how you can
square this with say, Roe? If you believe Roe was wrongly decided,
then of course this question is irrelevant.
Imagine a state says, we want to set our own standards for the use
of eminent domain laws to allow transfer to private parties when we
think it serves a public purpose - after all it should be a local
policy matter. Someone else claims it's a violation of the plain
meaning of the "public use" clause of the Constitution. The court
finds that, no it's not - states are allowed to read "public use"
in a broad enough way that they are not barred from such activities
and may set their own standards.
Now, the same state wants to set its own standards for abortion.
Someone claims it's a violation of, well... not some specific
clause (as in Kelo)... but I'm sure it's in there somewhere. And
they court says, yep, clearly this isn't a matter for local policy
making because there's a penumbra in here that says so - you are
barred from setting your own standards for abortion.
How can the clear text of the constitution exert virtually zero
restraint on state action, but this is ok because the states can
simply set their own standards, while some vague notion or penumbra
can essentially exert an all out bar on state action?
And just for the record, I don't believe abortion should be
illegal.
|7.27.05 @ 4:45PM|#
"How can the clear text of the constitution exert virtually zero
restraint on state action..."
Easily, Brian - the Constitution contains no such clear language
setting standards for the use of eminent domain, other than ruling
out obviously-corrupt private takings. If the founders had wanted
to limit the situations in which the states could condemn land,
they would have done so.
This "plain language" was so plain that Supreme Courts have been
reading it the other way since the founding of the country.
|7.27.05 @ 4:57PM|#
So you agree that the term is essentially meaningless? And if
not, let's hear an example of where "public use" could ever turn a
decision in a federal court. You're big on practical results and
not all this theory stuff - courts don't generally substitute their
decisions for local policy makers where the locals have authority;
so as long as the locals can find some (any!) pretext to call it
"public purpose" the courts are now pretty much bound to accept
that. So again, how does "public use" have any real (practical)
meaning? I mean seriously, why is that phrase in there if it means
basically nothing.
And, no matter how clear or unclear the guidance is for Kelo, it�s
far clearer than Roe, is it not?
|7.27.05 @ 5:07PM|#
If the founders had wanted to limit the situations in which
the states could condemn land, they would have done so.
And if they had wanted to set standards for when a pregnancy could
be terminated they could have.
[No standards] other than ruling out obviously-corrupt private
takings
Which is why the constitution used the term "corrupt private
takings" right? Hmmmm perhaps if that's all they meant, no corrupt
private takings, they could have bothered to say so.
|7.27.05 @ 5:07PM|#
Alabama is merely recognizing the wrongheaded nature of the
Kelo decision..." by doing exactly what Kelo authorizes, in the
manner it recommends.
Authorizing? Why couldn't this law have been passed before
Kelo?
|7.27.05 @ 5:09PM|#
ok joe,
thanks for the lesson on "blight". I'll admit, it's not a term I've
often had to deal with.
I somehow feel that the labeling of an area as "blighted" is rarely
confined to the narrow description you've given.
Now, if "galloping vacancy" constitutes blight (ie, an area is SO
bad that people aren't even willing to inhabit it, thereby
returning the land to "the commons") I can accept that the
government is justified in reclaiming the land, BUT, only if
property taxes are also in arrears.
That's about the edge of my envelope on property rights.
|7.27.05 @ 5:14PM|#
That should have more correctly read: "If they had wanted to
limit the situations in which the states could outlaw abortion,
they would have done so."
So if leaving one area to the states is the result of a lack of
clear standard setting by the founding fathers, even with the words
"public use", how is abortion not left to the states?
|7.27.05 @ 5:16PM|#
joe,
You can defend Kelo all you want to based on its twisted
federalist logic, nevertheless it remains a wrongly made
decision.
...the Constitution contains no such clear language setting
standards for the use of eminent domain...
It uses the term "public use" which was indeed a clearly
articulated concept in 1791.
If the founders had wanted to limit the situations in which the
states could condemn land, they would have done so.
Your legal ignorance just astounds me. The Fifth Amendment didn't
originally apply to the states you moron. Its incorporated via the
14th Amendment. The Fifth Amendment's provisions originally only
applied to the Federal Government, and the understanding of those
provisions in 1791 was crystal clear.
This "plain language" was so plain that Supreme Courts have
been reading it the other way since the founding of the
country.
No, again you know nothing of the jurisprudence in this area; the
concept of "public purpose" for something besides roads, bridges,
etc. only comes about in the 20th century (and generally during the
middle part of that century - that's why almost all the
jurisprudence cited by the majority comes from, you guessed it, the
1950s onward). If there was indeed such a plethora of 19th century
case law, the Court would have cited to it, but it didn't. If you
had read Kelo you'd know this. Sorry, you lose
(again).
|7.27.05 @ 5:20PM|#
Brian Courts,
joe's judicial philosophy is this: if I like it, it must be in the
Constitution, if not, well it isn't. There really is no point in
having such a document in his opinion.
|7.27.05 @ 5:23PM|#
Brian Courts,
Well, again, the Fifth Amendment wasn't originally written for the
states, so its a rather stupid idea to make such a demand on its
language.
nmg|7.27.05 @ 5:26PM|#
joe: ""Kelo" said that the states should set their own standards
for the use of eminent domain. "
No it doesn't. It states that the reason New London gave was indeed
constitutional, *not* that states should set their own standards.
The Supreme Court set the standard, and that standard happens to be
extremely broad, so broad as to be meaningless, but still it was
the Court that approved the standard. "Kelo" did *not* give free
reign for states to define the limits of our constitution right of
protection from eminent domain except for "public use".
The court simply agreed with and approved New London's argument
that their reasons for the taking could fall under "public use".
There is a huge difference between that decision and giving states
the responsibility to define it themselves.
nmg
Matt Welch|7.27.05 @ 5:35PM|#
"Kelo" said that the states should set their own standards
for the use of eminent domain.
Yes, Joe, that is what was *recommended.* What was *allowed*,
however, was for those standards (of what's considered "public
use") to be as broad as merely hoping that a new private owner
would be better than the old one, without any fear whatsoever of
running afoul of the Constitution.
Doing "exactly what Kelo authorizes" is not at all the same as
doing "exactly what Kelo recommends." Kelo *authorizes* my house
being leveled, if L.A. City Hall decides a new owner would be in
the better interests of the public. Kelo *recommends* that
California define "public use" a little clearer, perhaps even in
such a way to protect my house (which I actually don't own, but you
follow me) from getting replaced by a mini-WalMart.
This is not a difficult distinction to understand, is it?
|7.27.05 @ 5:41PM|#
Matt Welch,
Well, they can take it so long as the action is in the majority's
words "not irrational."
|7.27.05 @ 5:52PM|#
Well, again, the Fifth Amendment wasn't originally written
for the states, so its a rather stupid idea to make such a demand
on its language.
Hakluyt,
Yes, that's a good point. I meant the whole thing rather more
rhetorically anyway, but let's substitute congress for intent
purposes and the states as only incorporated later by the 14th, to
the extent they are. (Are they're any provisions of the Bill of
Rights left unincorporated to the 14th as applies to the
states?)
|7.27.05 @ 6:05PM|#
Brian Courts,
Well, Second Amendment remains so (though at least one circuit has
recognized its incorporation - of course most states guarantee the
individual right to bear and only one states it doesn't exist -
Massachusetts).
Anyway, given the limited nature of the federal government at the
time its not surprising that "public use" wasn't problematic. joe
essentially argues that the term is completely impenetrable, and
that it is therefore virtually meaningless, which is a load of
hogwash.
|7.27.05 @ 6:05PM|#
Brian Courts,
Note that in Boston I have been told that you have to get a permit
to carry mace.
|7.27.05 @ 6:31PM|#
Eh. There are so many examples of the abuse of the term "blighted" that saying it's an exception is clearly meaningless. The other day I drove by a single small business in my city that's being EDed for a hotel, and it certainly doesn't fit the definition of "blighted." (and I believe my state is one that has the "blight" requirement)
Kira Zalan|7.27.05 @ 7:12PM|#
A day after the Kelo decision was delivered, Freestar Media LLC
submitted a proposal in the town of Weare, New Hampshire where
majority opinion writer, Justice Souter, owns a farm house. They
requested that the town board condemn the land and give it to them,
as private developers, who promise to construct the Lost Liberty
Hotel in its place. Their tax revenue would no doubt be higher than
the reported $2,500 that Justice Souter paid in property taxes last
year. It would create employment and attract tourism. The town has
a website, and an economic development committee, which has
identified its two main goals: 1) Encourage the formation of new
businesses, and 2) Promote tourism. However, contrary to its stated
goals and the legally sanctioned purpose of economic development,
the town�s board turned down the proposal.
So much for poetic justice. Justice Souter�s influence in his
community shielded him from his own ruling. No other rational
justification can be found.
Thankfully, the legislative branch is now busy at work attempting
to shield private property rights from the Supreme Court ruling. It
seems that the two may have switched roles, with the House
defending the Constitution, and the Supreme Court writing new
laws.
I thought I saw Alice the other day! Or maybe it was Justice Souter
�skipping in Wonderland, immune to and above the laws he
passes.
|7.27.05 @ 9:59PM|#
Brian, the Constitution is, indeed, quite clear on limits to
takings, much clearer than on abortion. My point is that the limits
imposed at the federal level, while clear, are not very broad. A
clearly private taking, done just to enrich a friend of a high
official, would be illegal (not a public purpose in sight). As
would a policy of taking property owned by libertarians (an invalid
public purpose). The authors of the Constitution were big on
states' rights, and they recognized the states' right to weild
sovereign powers, including the right to decide when the use of
eminent domain powers was desireable.
"perhaps if that's all they meant, no corrupt private takings, they
could have bothered to say so" They did - by including the word
PUBLIC.
|7.27.05 @ 10:00PM|#
Russ R, "I somehow feel that the labeling of an area as
"blighted" is rarely confined to the narrow description you've
given."
Right you are. This authority has often been abused, and the states
would be wise to promulgate limits.
|7.27.05 @ 10:04PM|#
Sorry Hack, but you need to do more reading.
"It uses the term "public use" which was indeed a clearly
articulated concept in 1791." A concept which included the right to
condemn land for the construction of private roads, to be owned by
private parties, and closed to public use at their discretion, from
the beginning of the Republic, and before.
Said precedent was then used to justify the condemnation of land
for privately owned railroads, including those that only served
private mines and were themselves not open to the public.
But as you say, I clearly know nothing of the law or history in
this area. Ass.
|7.27.05 @ 10:08PM|#
OK, nmg, you got me - the Supreme Court did indeed establish, or
rather, re-articulate, a standard - to wit, the taking must be done
for a public purpose.
However, they left it to the states to determine which public
purposes the eminent domain power could be invoked for. Connecticut
could thus define economic development as a satisfactory public
purpose, and Alabama could declare it to be unsatisfactory.
I conflated the two concepts in the post you flagged - nice
catch.
|7.27.05 @ 10:11PM|#
"joe essentially argues that the term is completely
impenetrable"
No, Hack, just the opposite - the meaning of the term is quite
clear. You disagree with the definition the court provided, you
think it's too broad - that's all well and good. But it's still a
clear definition: in shorthand, public use = public purpose.
Nothing impenetrable there.
|7.27.05 @ 10:15PM|#
Matt, I said that the action, defing the situations in which ED
can be used, was consistent with the Kelo decision. I didn't say
that is was required by the Kelo decision.
That's not a difficult distinction to understand, is it?
Actually, it probably is for Haklyut. He considers "public use =
public purpose" to be "impenetrable."
|7.27.05 @ 10:43PM|#
"... nor shall private property be taken for not
obviously-corrupt private use or public use or public purpose,
without just compensation. Obviously-corrupt private takings are
strictly forbidden."
source: Joe's Infinitely Changeable Constitution, Being a
Revision to Better Comport with the World According to Joe
|7.27.05 @ 10:50PM|#
Hey, gang, let's pretend we don't know that "public" and
"private" are opposite concepts!
Woo hoo!
|7.27.05 @ 11:03PM|#
So, the NLDC isn't private? Or is it a conflation of public and
private, of your two opposites? Either way, you, sir are
wrong.
"In February 1998, Pfizer Inc., the pharmaceuticals manufacturer,
announced that it would build a global research facility near the
Fort Trumbull neighborhood. Two months later, New London's city
council gave initial approval for the New London Development
Corporation (NLDC) to prepare the development plan at issue here.
The NLDC is a private, nonprofit corporation whose
mission is to assist the city council in economic development
planning. It is not elected by popular vote, and its directors and
employees are privately appointed. Consistent with its mandate, the
NLDC generated an ambitious plan for redeveloping 90 acres of Fort
Trumbull in order to 'complement the facility that Pfizer was
planning to build, create jobs, increase tax and other revenues,
encourage public access to and use of the city's waterfront, and
eventually build momentum for the revitalization of the rest of the
city.'"
O/Connor, J., dissenting
Or maybe the retired Justice is a liar?
|7.28.05 @ 1:09AM|#
joe,
The problem is, if "public use" = "public purpose", the language is
not impenetrable, but superfluous. It doesn't restrict takings at
all. Aside from bribery-induced takings, already implicitly
forbidden in the Constitution's articles, what taking by a
publicly-elected govt would not be considered "public
purpose"?
Matt Welch|7.28.05 @ 3:16AM|#
I said that the action, defing the situations in which ED
can be used, was consistent with the Kelo decision. I didn't say
that is was required by the Kelo decision.
No, what you said is that the action is "doing exactly what Kelo
authorizes." You're really getting tiresome with this BS, joe.
|7.28.05 @ 6:30AM|#
Hakluyt,
How is it that "the government can never give you the market value"
in cases involving ED? The economic problem (actually, there are
several) with ED is that the government ONLY gives the owner the
market value for his or her property which is always less than the
value the owner places on this property (otherwise the owner would
simply sell the property). Unfortunately for advocates of ED, the
difference in value is significant from the standpoint of
economics.
There should not be any in-principle difficulty with the government
accurately calculating the market value of a piece of property.
Whether or not it does in all cases is a completely different
matter...
|7.28.05 @ 8:59AM|#
Aside from bribery-induced takings, already implicitly
forbidden in the Constitution's articles, what taking by a
publicly-elected govt would not be considered "public
purpose"?
Exactly. crimethink cut to the heart of the issue. The Supremes
interpreted the "public use" phrase so broadly that it becomes
meaningless in practice. Now, I'm not going to claim that I have a
crystal ball and I can tell exactly what the Framers had in mind,
but I'm sure they meant for "public use" to mean
something, for it to be a constraint on the power
of the legislative and executive branches to take private
property.
The courts interpreted "public use" so broadly that as long as a
city council claims to have a plan to improve the community the
courts will have to defer. And I'm all in favor of separation of
powers, but if the Constitution explicitly lays out a limitation on
a power, well, the courts have an obligation to uphold that
limitation. Deferring in all cases (or setting such a loose
criterion that in practice any city council can wiggle through it)
defeats the whole purpose.
That is the fundamental issue. We can debate the proper meaning of
"public use", but however you approach it, the phrase still has to
mean something, and it has to be stringent enough to bar
more than just bribery. That, at a minimum, is something that any
reasonable person should be able to agree on.
joe, why are you doing this?
|7.28.05 @ 9:54AM|#
thoreau, crimethink,
"Aside from bribery-induced takings, already implicitly forbidden
in the Constitution's articles, what taking by a publicly-elected
govt would not be considered "public purpose"?"
Private takings done to help out a buddy, absent any bribe or quid
pro quo, would also be forbidden. There has to be a public purpose
- that's the boundary. If the government does a taking for the
public purpose, it stands. If there is no public purpose, it does
not. The fact that this restriction is not as broad as you'd like
does not make it absent.
joe basher, Development Authorities are strange beasts. But your
argument is irrelevant - the public purpose comes not from the
project's achievement of the NLDC's purpose, but that established
by the City Council. That they hired a private party to do their
business is no different than a city hiring a paving contractor to
pave the roads - it's still a public project, done at the behest of
the government, for a public purpose.
Who pissed in Matt's Cheerios? All this over the word
"backlash!"
|7.28.05 @ 9:57AM|#
"joe, why are you doing this?"
Perhaps because he's batshit insane? Pugnacious? Contrarian?
Because bickering on this board beats banging his head against a
wall?
|7.28.05 @ 10:23AM|#
There has to be a public purpose - that's the
boundary
joe-
In an era where a guy growing a plant in his own yard for his own
use constitutes "interstate commerce", almost anything can be spun
as serving a public purpose.
I will grant you this much: A sufficiently small taking (e.g.
giving a single house to a developer) would probably be harder to
rationalize than a larger taking (e.g. taking over a city block,
which could be spun as part of a "comprehensive development
plan").
The fact that a more intrusive program would be easier to spin than
a smaller program does not make this limitation any more reassuring
to me.
|7.28.05 @ 10:35AM|#
Yes, thoreau, you've made it clear you think the discretion is
too broad. But the sovereign has always had extremely broad powers
to determine when to use eminent domain, and the founders of the
Constitution didnt' choose to include any language limiting this
power beyond its traditional meaning.
State Constitutions that contain stricter limits do so by including
additional language.
|7.28.05 @ 10:40AM|#
joe, the question isn't whether I think the
discretion is too broad.
The question is whether a creative city council would ever find
itself unable to justify a taking. If the answer is "no" in the
vast majority of cases, then the Court has rendered the phrase
"public use" meaningless.
If the phrase becomes meaningless then the discretion is
effectively unlimited, which is clearly against the
Constitution.
|7.28.05 @ 11:49AM|#
"If the answer is "no" in the vast majority of cases, then the
Court has rendered the phrase "public use" meaningless."
No, the answer would have to be "no" in every case for the phrase
to be meaningless.
If the answer is "no" in "the vast majority of cases," the phrase
is broad, not meaningless.
|7.28.05 @ 11:58AM|#
joe-
There's a difference between the practical and literal definitions
of "meaningless."
|7.28.05 @ 12:21PM|#
OK, I can buy that. But the two have very different
imports.
If the phrase was literally meaningless using my definition, my
interpretation of the clause would be constitutionally invalid,
because there is no extraneous language in the Constitution.
However, if the phrase was practically meaningless, my
interpretation would still clear that particular bar of
constitutionality, since nothing prevents the language of the
constitution from being read in a minimalist manner.
|7.28.05 @ 12:36PM|#
joe-
I guess it comes down to whether you want the Constitution to have
some meat on its bones. Or whether you want both edges of the sword
(the edge that grants power and the edge that limits power) to be
sharp. I'm not a purist libertoid, but it seems to me that limits
ought to have significant practical effects, not just effects that
are mostly theoretical and rarely encountered. I mean, if a
sufficiently creative city official can spin almost any taking as
serving a "public use" then the power is limited primarily by the
creativity of the official, not the Constitution.
|7.28.05 @ 4:47PM|#
thoreau,
The practical effect of the language is to require a showing of
public purpose. Where I disagree from the decision, and where I
think the Court should have put more meat on the bones, is in the
degree of deference the court gave to the plan.
The "public purpose" standard is used in many areas of the law, but
that doesn't always translate into the federal courts being bound
to treat the assertions of the government with great deference.
Even the strict scrutiny standard, among the highest levels of
review the courts impose, includes the concept of public purpose -
but it makes the government show that its actions will achieve that
public purpose, along with other things.
|7.28.05 @ 5:03PM|#
It's not even about the vast majority of cases - there is simply
NO time the court could use "public use" now as any restraint. Not
just in the vast majority, though I agree with thoreau that if it
is the vast majority the practical effect is still the same: no
meaning. But the city council would never be dumb enough to
announce a "corrupt private taking." We all know this. I think all
private takings are essentially corrupt. But all of them can be
rationalized somehow. So since we know there is
never going to be a per se corrupt private taking, the courts can't
substitute their judgment for the findings of the city council on
policy matters - so public use is, in fact, now meaningless.
I think joe's continued defense says more about the fact that he
likes the result than that it is theoretically sound. It is simply
self-serving. I'm still curious if he things Roe was wrongly
decided... and if not how that can square with Kelo in terms of
deference to the states authority.
|7.28.05 @ 7:40PM|#
Like he said, the sovereign usually has all the cards, and he likes being part of the sovereign.
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