What's Yours is Mine

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The Supreme Court has rendered its verdict in Kelo v. New London, and the widely-expected result has come to pass: a 5-4 loss for property rights. As Raich taught us that growing pot in your backyard for personal consumption is "interstate commerce," Kelo informs us that taking people's homes to hand over to private developers building an office complex is a "public use."

You do wonder: Now that the "liberal" justices on the court have sided with the drug warriors against cancer patients, and with a plan to rob people of their homes for the benefit of wealthy developers, will some court-watchers on the left begin to question the wisdom of having let economic freedom become the red-headed stepchild of modern jurisprudence?

UPDATE: The opinions are here. As with Raich (in a sense just a reaffirmation of Wickard), we're just seeing a particularly outrageous confirmation of what was already, in effect, the law. As the majority opinion says, quoting an earlier decision, the "Court long ago rejected any literal requirement that condemned property be put into use for the … public." Which is to say, they've rejected the notion that "public use" means anything more stringent than: "legislators want to do this." The Court's view is that any "public purpose" will do, and such purposes apparently include increased tax revenue. The straightforward implication is that any taking of a private residence to hand it over to a business, or just from a poor person to a wealthy person, will be a taking in service of a public purpose: As a general rule, the rich pay more taxes than the poor, and businesses pay more taxes than households.

UPDATE 2:The Institute for Justice's press release on the verdict is here.

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  1. WHAT THE FUCK IS GOING ON IN THIS GODDAMN COUNTRY? HAVE WE LOST OUR FREAKING MINDS?!?!?!?!?!?

  2. I apologize for that last comment. I’m just really upset right now.

  3. I’m not sure if the five justices who voted for live in the District or in the ‘burbs, but Carol Schwartz should follow her Alcohol Ban bill by offering up the lots of any of the five up to any developer who want them.

  4. Disgusting, disgusting, disgusting.

    Please read O’Connor’s dissenting opinion.

  5. If all you Gore/Kerry Would Have Been Better people had your way, we’d be looking at a generation of this crap. Now at least there’s some hope. (Not that I wouldn’t put it beyond Bush to screw it up.)

    I’m willing to trade eight years of mismanagement of the budget and foreign policy, and temporary attacks at free speech to protect long term rights under the Constitution.

  6. Insert your own string of profanity and vitriol here. No matter what you choose to insert, it can’t express how disgusted I am.

  7. This is simply terrible news. It’s hard to say which decision is worst, Raich or Kelo, but between the two of them, I truly fear what things will be like in ten years.

    Is there no place on the planet where freedom is sacred? Where can I move to…Poland? Is that it?

  8. Are the opinions online yet? Anybody have a link?

  9. Hey, now reality is just like SimCity – I can demolish anything I don’t like, at any time!

  10. What RandyAyn said.

    Good to see that Scalia decided to stick to his principles this time. Of course, he didn’t have a chance to stick it to those damn hippies this time.

  11. The bastards!

    Quoting the AP story:

    Justice John Paul Stevens wrote for the majority…joined by Justice Anthony Kennedy, David H. Souter, Ruth Bader Ginsburg and Stephen G. Breyer.

    Justice Sandra Day O’Connor.. issued a stinging dissent…. joined in her opinion by Chief Justice William H. Rehnquist, as well as Justices Antonin Scalia and Clarence Thomas.

    O’Connor has surprised me. Given the deference she has usually shown state government, which may have something to do with her having been a state, not a federal judge, I fully expected her to side with the landgrabbers. Souter and Kennedy have gone completely native, though. Remember when we used to chuckle about Souter being a “stealth libertarian” on the court? Feh.

    Kevin

  12. A very sad day indeed.
    A Waco-style holdout would be fun, but that would be expecting too much from the homeowners.
    However, one can dream…

  13. It may be legal to demolish that neighborhood, but that doesn’t mean it’s a good idea. Grumble grumble.

    Still, I don’t like Julian’s implication that the justices should conform their decisions to the outcomes they want. That eminent domain can be used for a “public purpose” other than the physical occupation of the land by the government is settled law, and was not the question before the court.

  14. kevrob,

    I wonder if O’Connor’s western upbringing played a role. That is an unusual split.

  15. “and temporary attacks at free speech to protect long term rights under the Constitution.”

    huh?

    oh – you’re a spill constitutional milk to save the american pie. how cute.

    would you like a baloon?

    i guess since it’s your side, the attacks on the constitution are okay. but not the other side.

    the usual “greek curse” applies: may you live in a world where everybody else has your, um, principles except for you.

    perhaps the worst part of your post is that you’re assuming that “you kerry” people live here. um. um. well, your analysis and your powers of observation are about the same level. instead of a baloon, here’s a tonka.

  16. “You do wonder: Now that the “liberal” justices on the court have sided with the drug warriors against cancer patients, and with a plan to rob people of their homes for the benefit of wealthy developers, will some court-watchers on the left begin to question the wisdom of having let economic freedom become the red-headed stepchild of modern jurisprudence?”

    No, they won’t, as long as the Richard Epsteins argue that the basic post-New Deal system is unconstitutional, and get some support from the Judge Browns. As long as such views exist, most of the Left will view judicial toleration for even very bad economic regulations as the first line of defense against the conservatarians.

    (As a non-libertarian, btw, I think their fears are greatly exaggerated, and that only Justice Thomas would go even substantially toward the goal they fear. But I have seen enough of once “fringe” views becoming “mainstream” to understand the fear…)

  17. Holy shit, dude, Sploid is the best thing on the internerd!

    Gotta love their new headline:

    SCOTUS Gives Away Your Free Property

  18. >and temporary attacks at free speech to protect >long term rights under the Constitution.

    Yes, with the likes of the Flag Desecration Ammendment, anti-same sex marriage ammendment, etc. 🙁

    Think *any* Rep or Senator of *either* party will work to correct this? I don’t. It doesn’t sell to Ma and Pa Kettle as their other flash laws.

    We’re screwed. Plain and simple.

  19. ammonium,
    just make sure you do not burn any flags in your anger!

    To add to what Joe says, I too believe that this is the proper judicial deciscion, but a poor use by officials.

  20. I do not condone the murders of the innocent and children but, boy, does this make me applaud McVeighs resolve.

  21. Today is a great day for Communism and a vindication of 5-Year Plans around the country!! Rejoice in your newfound servitude!

  22. Yep, the enrichment of developers is always a legitimate public use.

  23. I’m speechless. Utterly speechless.

  24. [N]or shall private property be taken for public use, without just compensation” -Fifth Amendment, US Constitution

    Emphasis mine. So, in effect, SCOTUS has declared that anything in the private sector which is predicted to benefit “the public” via jobs, tax revenue, etc., is thereby deemed “public”?

    Or, alternately, the State can “authorize” private agents to exercise eminent domain on its behalf, and thus, circumvent the constitution.

    Holy Christ. How can they sleep at night?

  25. Joe, you’re killing me. In the wake of Raich, I watched one after another liberal op-ed page or blogger say something to the effect of: “Of course, it’s insane that this activity should be regarded as reachable under a power to regulate interstate commerce, but if this went, maybe federal antidiscrimination rules would be challenged too.” I don’t need justices to cater their rulings to my preferred outcomes; I’d settle for a sane reading of the relevant provisions. The outcomes would take care of themselves.

  26. Yep, the enrichment of developers is always a legitimate public use.

    You’re forgetting the enormous tax rebates New London residents will get due to the higher taxes paid by the new, superior development….

  27. This was once, a long time ago, a great country.

    Wonder what Washington, Jefferson, et als. would think about this. I don’t think it’s what they had in mind.

  28. to those who have read the majority texts, was a clear explanation provided for how public benefit = public use?

    the definitions are at least recognizably disparate if not clearly disparate, no?

  29. Maybe in the course of losing our freedom, we can win back use of the term liberal, which is miles more elegant than that clunker libertarian.

    See? It’s not all bad news.

  30. From the majority opinion:

    “There is no allegation that any of these properties is blighted or otherwise in poor condition; rather, they were condemned only because they happen to be located in the development area.”

    I like the idea of planning “development” right about where Justice Stevens’ house sits. Oh, you like that house? It has a meaning that is beyond money? Heh, fuck YOU, cuz we’re planning a DEVELOPMENT, beeyotch! Time to move out!

  31. So I guess from now on nothing I own is really mine.

  32. In joe’s comment do we see the evil “ratchet effect” of stare decisis. The Fifth Amendment doesn’t say “public purpose”. It says “public use.” Prior decisions interpreted “use” as “purpose”, and then went on to interpret “public purpose” ever more elastically. Rolling back some of those earlier, wrongly-decided cases would not only have been sensible, the Court should have seen that as its duty. The sad truth is that it has been some time since we had a Constitution of Articles and Amendments. The legal clerisy has decided for us that a footnote in a majority SCOTUS decision is more to be respected than the black letter law of our country’s organic law.

    Kevin

  33. Not if someone with influence wants it.

    Think of it as an existential question. “Who can really own anything?”

  34. “A Waco-style holdout would be fun, but that would be expecting too much from the homeowners.”

    It might be more effective if the homeowners just spiked their land with some toxic waste which would be expensive to clean up.

    I have to say, the US and China are getting to the point where we might as well just merge.

  35. Lets just stop talking about the poor people getting abused by the big bad business men. It doesn’t matter who is getting their property taken for what purpose, unless it’s a road, bridge or tunnel the goverment should have no right to take what I purchased.

    Also haven’t we all learned that the goverment trying to figure out economic issues has almost never work, and even when it does it is a short term fix at best. Inevitable this complex will hurt New London in the long run.

  36. Great Ape:

    Not really. The best they could come up with was some garbage about how the city authorized a private agent to exercise eminent domain, and that since the entire planned “development” was at the behest of the city, the city had a right to exercise ED (or, in this case, authorize third party agents to do so on their behalf). But, no, there’s really nothing there that explains how predicted public benefit is somehow the same thing as public use.

  37. Rhywun, who are you kidding? Like New London isn’t simply going to increase their public spending. Tax rebate? Har har har.

  38. So what if the business development is a failure and the tax receipts end up lower than they currently are? Would the former property owners be able to sue that the development no longer had a public purpose and get their land back?

  39. The irony is that while this has been working out in court, the Pentagon decided that they want to close the Groton sub base, which will change the economics of the region quite a bit.

    The land being taken might not turn out to be as desirable as it used to be.

  40. “Promoting economic development is a traditional and long accepted governmental function, and there is no principled way of distinguishing it from the other public purposes the Court has recognized.”

    Perhaps, but there is also no principled way of distinguishing it from rank corruption either. Whether or not this type of development will result increased employment or tax revenues is by definition speculative. The court puts far too much trust in government bodies that they will act fairly and wisely rather than prostrate themselves and sell out their citizens to any business with a large enough billfold.

    How disheartening.

  41. Well if someone’s opinion determines whether or not I should own something I think I should be able to take whatever I want too.

  42. It might be more effective if the homeowners just spiked their land with some toxic waste which would be expensive to clean up.

    Even better, run a few hoses 24/7 and create a wetland. Then they can’t even do a cleanup.

  43. “I have to say, the US and China are getting to the point where we might as well just merge.”

    All hail the great Alliance! I think I better invest in a brown coat.

  44. Tax rebate? Har har har.

    Was I not sarcastic enough in my post? 😉

    Lets just stop talking about the poor people getting abused by the big bad business men.

    In a moment. Does anyone think that poor people WON’T be the big losers here? Eminent domain has ALWAYS been used against the “wrong” sort of people.

  45. Time to resort to the Second Amendment and the tme-honored American tradition of sitting on your porch with a shotgun and saying, “You want it? Come and get it.”

  46. “Does anyone think that poor people WON’T be the big losers here? Eminent domain has ALWAYS been used against the “wrong” sort of people.”

    Compared to the kind of business (ie, large or cash-rich) that benefits from this sort of thing, almost all people are “poor”.

  47. Anybody see “The Castle?” It was a big hit in Austraila (where it was made), so I hear. That one involved real public use (an airport) and had a happy ending. Making it absolutely unlike the present situation, unfortunately.

    I’m going to paint a big pot leaf on an American flag and burn it on top of my house.

  48. Hopefully this will lead to some video and images of people being forced to leave their homes by the government. I just can’t see how any rational person can justify this…

  49. The Left’s concern for the “little” guy is easily trumped by their desire to conserve and expand government powers to promote social engineering. I think eminent domain is one of those powers. So while Leftists may privately cringe at who benefits and who’s hurt by this ruling, they’ll ultimately accept the result.

  50. Property taxes essentially reduce homeowners/landowners to simple tenants. We purchase our homes, and then we have to pay rent to the taxing agencies. Eminent domain provides a mechanism for the state to evict existing tenants for tenants from whom they can extort higher rents.

    The concept of private property will remain a sham until property taxes are eliminated and the eminent domain laws are tightly restricted.

    We are headed down the path to central government planning, the end of private ownership, Federal control of all aspects of life, the suppression of free speech and dissent, the establishment of a state religion, the collapse of the dollar and the American economy, censorship of the Internet, obstruction of scientific advances, infrastructure decay, inadequate energy supply, and egregious incarceration rates.

    Did I forget anything?

    Rational people need to fight this slide into hell with every weapon available. We cannot continue to stand on the sidelines flapping our gums and writing comments to this blog. We have to take back our country from these assholes who find new ways to shit in our sandbox every day.

  51. So, in effect, SCOTUS has declared that anything in the private sector which is predicted to benefit “the public” via jobs, tax revenue, etc., is thereby deemed “public”?

    it’s certainly in keeping with the third-way fascism we adopted earlier this century. the government/corporate compact could hardly get a more stark and ringing affirmation.

  52. If every plan than a politician endorses created the great jobs that they always claim, would we have any unemployment?

  53. Connecticut residents involved in the lawsuit expressed dismay and pledged to keep fighting.

    “It’s a little shocking to believe you can lose your home in this country,” said resident Bill Von Winkle, who said he would refuse to leave his home, even if bulldozers showed up. “I won’t be going anywhere. Not my house. This is definitely not the last word.”

    I hope he stays there with a shotgun until the police show up and makes the national news seen. Maybe then people will quit paying attention to lost little boys, runaway brides, and hoochies in Aruba long enough to know that their rights are being taken away.

  54. Although it might make a nice example, these people have lost enough. We don’t need to see them imprisoned or worse. Besides, the story would be forgotten after a few weeks.

    What’s sad is that true blight in CT is almost never addressed with eminent domain, just left to rot like an open wound.

  55. Rhywun

    Thanks for reminding me about “the enormous tax rebates New London residents will get…”. That’s saved me from becoming the worst kind of jaundiced cynic. 🙂

  56. anyone want to organize a mass vomiting on the stoop of the SC?

  57. A severely disappointing decision for people with any appreciation of liberty — but not surprising. Going back to Berman v. Parker (1954) and the horrid Hawaii Housing Authority v. Midkiff (1984) decision, the Sup Ct has acted like the public use requirement was written in disappearing ink.

    (I do find it intriguing that O’Connor dissented in today’s decision, yet she wrote the anti-property decision in Midkiff 21 years ago, an opinion from which Rehnqiust did not dissent.)

  58. As a general rule, the rich pay more taxes than the poor, and businesses pay more taxes than households

    Businesses do not pay taxes, people pay taxes. A business no more pays business taxes than a house pays property taxes.

  59. WTF is a baloon?

    Like Bush, Kerry/Gore would not do anything to stop a flag burning amendment or same-sex marriage amendment. It’s because the President has nothing to do with constitutional amendments!!!

    Any policies by the administration are temporary and unconstitutional policies can be overturned by the courts. But once the Constitution loses all meaning, we lose that protection.

  60. Dan,

    She references Midkiff in her dissent and describes the difference between Midkiff and Kelo. I’ll leave it to you to judge her rationalizations.

  61. ……and the sad fact is that ignorant people are going to see a dollar sign and blame capitalism and embract statism-syndicalism.

    The only flag I sallute is the Gadsden.

  62. I, for one, welcome my new developer overlords!

    I’m surprised that gaius marius is upset by this. Don’t you see, those selfish individualists were holding onto their homes rather than surrendering them to the business elite who could surely put them to better use!

  63. Yes, Julian, you’re the only sane one. All of the history, precendents, and rationales cited in the decision are the ravings of paranoid schizophrenics. This isn’t about a legitimate difference in interpretation – it’s about the four justices who ruled for the outcome you agree with being mentally sound, while the majority are all suffering from brain lesions.

    Sigh.

  64. Evan: For a long time now, it has not been necessary (legally) for the government to prove public benefit. The fact that the government calls it ‘public use’ legally makes it ‘public use’ in the eyes of the law.

    In the Trump case (CRDA v. Coking), the Judge ruled against Trump on a technicality – he found that, while a parking lot is appropriate ‘public use’ (since CRDA said it was), the deal between CRDA (the agency taking Coking’s property) and Trump did not guarantee that the property would remain a parking lot.

  65. “It’s a little shocking to believe you can lose your home in this country,” said resident Bill Von Winkle, who said he would refuse to leave his home, even if bulldozers showed up. “I won’t be going anywhere. Not my house. This is definitely not the last word.”

  66. All of the history, precendents, and rationales cited in the decision are the ravings of paranoid schizophrenics.

    joe, when you pile shit on top of shit, it is still shit.

  67. You know what’s ironic? It was the four left-liberals (and one weathervane) “justices” that ruled that government can take property away from citizens and give it to Big Corporations.

    So, when the local Homeless Shelter & Needle Distribution Center gets bull-dozed to make way for a Wal-Mart SuperCenter, the left can thank Stevens, Breyer, Ginsburg, and Souter.

  68. “Time to resort to the Second Amendment and the tme-honored American tradition of sitting on your porch with a shotgun and saying, “You want it? Come and get it.”

    Too bad that’s not an option anymore. Since the property is no longer yours, then technically, you can’t defend it. Even if you’re sitting on the government’s (formerly known as your) porch, then they’ll probably still take you to jail for brandishing a firearm. The Constitution is dead.

  69. What is left of Constitutional governance in the United States when, even if it is in a minority opinion, a Republican Supreme Court Justice writing: “Federal Government is no longer one of limited and enumerated powers.”?

  70. As a matter of fact – not to let those get in the way – the majority specifically found, as part of the longstanding precendents that surround takings law, that transferring property from A to B in for the purpose of enriching B violates the Constitution, and that the government must show that its actions are being done in the pursuit of a public purpose, distinct from the benefits that will accrue to the new owner.

    This is why O’Connor, the dissenting hero, approving cites the private-to-private takings that created the railroads – because of the public benefit that would accrue from having a system of passenger and freight conveyance. And why she approvingly cited Berman, which justified private-to-private takings for the purpose of alleviating extreme poverty, and Midkiff, which justified private-to-private takings for the purpose of creating a better, freer real estate market (which had previously been a plantation oligarchy, in which 22 people owned 79% of the land).

  71. Also haven’t we all learned that the goverment trying to figure out economic issues has almost never work, and even when it does it is a short term fix at best. Inevitable this complex will hurt New London in the long run.

    Sure they work. The Pols get a nice wad of cash, be it in the form of contributions, swag (junkets, etc) or a nicy cosy job when they retire from public service. The Developers get some work on the tax payer’s dime. Everyone’s happy….

    … well, except for the previous property owners and the tax payers, but you can’t make an omlet (or a 500 room hotel) without breaking… yadda yadda yadda.

  72. dave b: The Constitution is dead.

    joe: All of the history, precendents, and rationales…ravings…paranoid schizophrenics… Sigh.

    Oh, the rich irony.

  73. Choice quotes from the decision:

    “…this ?Court long ago rejected any literal requirement that condemned property be put into use for the ? public.? Id., at 244. Rather, it has embraced the broader and more natural interpretation of public use as ?public purpose.?

    “Without exception, the Court has defined that concept broadly, reflecting its longstanding policy of deference to legislative judgments…”

    “Such a rule would represent an even greater departure from the Court?s precedent.”

    “Petitioners? proposal that the Court adopt a new bright-line rule that economic development does not qualify as a public use is supported by neither precedent nor logic.”

    That eminent domain can be used for a “public purpose” other than the physical occupation of the land by the government is settled law, and was not the question before the court.

    That’s the problem. I’m constistently flabbergasted by the level of deferrence given to its own past decisions. Do they think they were infallible? Did past courts walk on water? Doesn’t it occur to them that perhaps some past decisions might have been based on *gasp* politics of the time? I almost sense tepid fear in some of these types of decisions. As though the majorities are afraid that striking a precedent would lead to a house of cards falling down. Well, sorry SCOTUS, we’re not a house of cards, our country is stronger than that.

    To paraphrase Hank Hill, would it kill a tree to overturn a precedent once in a while?

    Just browsing the syllabus, there’s just so much wrong with the winning opinion, who knows where to start. This and Raich looked like the right cases for their issues. If they couldn’t win, no one can.

  74. joe should read Thomas’ dissent, if the very idea of that doesn’t make his head `splode. He very calmly rips to shreds the thin reed of “public purpose” as the tissue of judicial whim that it is. That the likes of Souter and Kennedy haven’t the guts to point out their predecessors mistakes and reverse them shouldn’t surprise anyone, of course.

    Kevin

  75. joe-

    The issue here isn’t whether there’s ever a case where it is Constitutionally allowable to use ED to transfer property to another private party. We can agree to disagree on that for today.

    Today’s ruling found that simply paying higher taxes is good enough reason to take somebody else’s property. That’s fucking scary!

  76. the government must show that its actions are being done in the pursuit of a public purpose

    Yes, we got that… so how is enriching the town’s tax coffers any guarantee of good “public use”? My state (NY) has received billions of dollars from the Marlboro Man to put to the “public use” of eradicating smoking. Guess where the money has gone instead? If you said, “into the general treasury to cover our massive debts” – you’re right!

  77. Apparently, we now exist to serve government.

    These poor folks should all paint the american flag across the outside of their houses, it’ll make a great photo when the bulldozers come rolling in.

    Anybody remember the following???

    “We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness. –That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed, –That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness. Prudence, indeed, will dictate that Governments long established should not be changed for light and transient causes; and accordingly all experience hath shewn that mankind are more disposed to suffer, while evils are sufferable than to right themselves by abolishing the forms to which they are accustomed. But when a long train of abuses and usurpations, pursuing invariably the same Object evinces a design to reduce them under absolute Despotism, it is their right, it is their duty, to throw off such Government, and to provide new Guards for their future security.”

  78. These poor folks should all paint the american flag across the outside of their houses, it’ll make a great photo when the bulldozers come rolling in.

    If they did that, who would be arrested for desecrating it? The painter or the dozer driver?

  79. oh oh oh.

    mr. tough guy. wow. can i feel your muscle?

    i guess, though, since your powers of spelling are better than your analytic and observational abilities, you’ve figured out that there’s only one kerry type here…

    flex flex flex

  80. kevrob, I’m not so impressed with Thomas’s dissent. He makes three unimpressive points.

    1. He quotes Marbury: “It cannot be presumed that any clause in the constitution is intended to be without effect.” No one is presuming that the clause “for public use” is without effect. It does have a meaning – to forbid purely private transfers.

    2. He says that he disagrees with a whole slew of previous rulings, and agrees with a few much earlier rulings. Well, buddy, that and four other justices will get you a decision.

    3. He speculates about bad outcomes accruing to poor people. Suddenly, out of nowhere, Justice Thomas decides the Supreme Court should apply a social justice test to its decisions – but, oh, only in takings cases. Bzzt.

  81. thoreau,

    “Today’s ruling found that simply paying higher taxes is good enough reason to take somebody else’s property.”

    No, it doesn’t. The decision explicitly mentions the several public purposes to be pursued.

  82. “In addition to creating jobs, generating tax revenue, and helping to ?build momentum for the revitalization of downtown New London,? id., at 92, the plan was also designed to make the City more attractive and to create leisure and recreational opportunities on the waterfront and in the park.”

    Show me the doctrine that states that these are not to be considered legitimate public purposes.

  83. If all you Gore/Kerry Would Have Been Better people had your way, we’d be looking at a generation of this crap. Now at least there’s some hope.

    Yes. Thank the Lord for Ford’s, Reagan’s, and Bush’s appointees, who will keep you free.

    John Paul Stevens – Ford

    Anthony Kennedy – Reagan

    David H. Souter – Bush

    Ruth Bader Ginsburg – Clinton

    Stephen G. Breyer – Clinton

    So I guess from now on nothing I own is really mine.

    Is it true that in some states (eg, Louisiana) that if you are a suspected dope something-or-other the government can take your car without having to prove you guilty of a crime?

  84. These poor folks should all paint the american flag across the outside of their houses, it’ll make a great photo when the bulldozers come rolling in.

    Excellent!

  85. AMP, why are quoting the declaration of independence? the U.S. govt invalidated that back in 1865. 🙂

  86. Show me the doctrine that states that these are not to be considered legitimate public purposes.

    Aside from the fact that it’s not the government’s responsibility to do any of those things [although I have no big problem with them trying; however, the proper response when told that the land is not for sale is “OK, we’ll look somewhere else”, not “Gimme your land anyway”], what’s to stop new London from simply levelling the town and building nothing but mansions in its place? Doesn’t that make the city more “attractive” to other wealthy taxpayers?

  87. Joe,

    Let’s see even most of that actually happen. Most of the case is built on speculation. It might revitalize downtown, might create more jobs, might create more tax revenue. I hate to put it this way, but contractor promises are generally worthless.

    For example, when an expansion project of my parents’ neighborhood was built, there was to be a park built between the existing street and the addition, and a connection to the another main road at the end of the addition to defray traffic. Neither exists, and the company created for the project has since dissolved.

  88. “Is it true that in some states (eg, Louisiana) that if you are a suspected dope something-or-other the government can take your car without having to prove you guilty of a crime?”

    Hey Raymond!
    I think it’s even worse than that, if possible…

    https://reason.com/ml/ml041901.shtml
    https://reason.com/0107/ci.ml.railway.shtml
    https://reason.com/bi/fb90.shtml
    https://reason.com/0108/fe.gc.the.shtml

    and many of the supporters of such measures have these glib excuses and explanations. and they sing “proud to be an american” and talk about “freedom”….
    puke.

    mfG,

    drf

  89. Is it true that in some states (eg, Louisiana) that if you are a suspected dope something-or-other the government can take your car without having to prove you guilty of a crime?

    Based solely on lobby-induced bad law and a culture of manufactured gender fear, it’a already legal in all 50 to lose your house (and your income if you were foolish enough to parent a kid or three) if your spouse/ex/SO (typically, if same is female) merely accuses you of domestic violence. And has a lawyer.

  90. joe:

    The argument against such a broad swipe is that in effect all revenue generating practices of government can be justified on the grounds that said revenue will always be said to be spent on some form of community improvement somewhere. The effect is that to take from one private party and give to another who will pay more taxes will always meet the terms of this ruling.

    Can you envision any possible way to fail to meet the requirements as listed?

  91. joe,

    “public purposes” is an infinitely nebulous term that can be used to justify everything from nothing to communism.

    “public use” is the specific Constitutional term and should be applied as such b/c the authors would have said “purpose” or “interest” if it was meant to be so broad and.

  92. “Show me the doctrine that states that these are not to be considered legitimate public purposes.”

    Is it a public USE? It’s clear that ED was reserved for public infrastructure, so that some poor sap couldn’t derail a massive PUBLIC interstate highway project by holing up in his house and refusing to sell. Making the subjective judgment that a particular private development is a “public purpose” simply because the public stands to benefit from it is not in the spirit of the ED provision. The public ALSO benefits by being free from the government stealing their property and giving it to private developers. “Benefit” is a subjective term, Joe. And “benefit” certainly does not equal “use”.

  93. Well, throwing this out to the scholars of this board who are much more learned than me, are there any countries presently that have better laws protecting privately owned land than ours?

    I ask, as I am scheduled to take my LSAT soon, but I figure, what the hell, I could instead spend the money for law school on a plane ticket to a place that still believes in markets and private property. Any room left in the former Eastern Bloc?

    Let’s see if our idiot solons in D.C. get as worked up about this issue as they do about the flag (if they even understand the issue at all)

    Well, if I believed in God, I would now be praying for a natural disaster to wipe out the homes of all the justices in the majority in this decision as an example of cosmic irony and justice. Alas, I’ll just have to be content to let out a stream of obscenities.

  94. Since this office complex is now officially a public use, maybe once it is constructed we, as members of the public, should go there and, uh, use it.

  95. Show me the doctrine that states that these are not to be considered legitimate public purposes.

    Show me the doctrine that states that “public purposes” in this context is considered constitutionally legitimate.

  96. joe,

    The point is, the court has set a very low bar for cities to meet when they claim something is “public use.” (I notice you said “public purpose,” which is a more accurate term for what the court is talking about, although it’s not found in the Constitution.) Courts have also shown very little desire to scrutinize any city’s definition of “public use.” Any city can find “public purposes” such as the ones you described when it wants to take land for higher tax revenues. Of course a new development is probably going to look better than an old one.

    In other words, it’s not enough that the court mentions public purposes. It should look at them with a critical eye and determine whether they’re actually “public use.”

  97. I’m calling Tea Party. For five cents and a guarantee I can have my job back later if I live, I’d go to Connecticut, wrap myself in the flag, and lie down in front of the bulldozers.

    Why don’t we all just meet there and then we can decide what to do when we get there?

  98. I already know what joe’s going to say: Past courts have ruled that “public use” really means “public purpose,” so who are we to say they were wrong?

  99. joe:

    Thomas’ dissent thoroughly discusses the history of the replacement of the actual words of the Fifth Amendment, “public use,” with the “public purpose” interpretation of the Constitution. He notes the often casual expansions of the scope of the government’s power, and chides his fellow justices for citing those decisions uncritically.

    Perhaps, because I put text before legislative intent, and both before penumbras and emantations, I find Thomas’ argument more compelling than you do. Constitutions are not ouija boards, after all.

    Once one permits takings for public purposes in addition to public uses, no coherent principle limits what could constitute a valid public use, at least, none beyond Justice O’Connor’s (entirely proper) appeal to the text of the Constitution itself. – from Thomas’ dissent

    Kevin

  100. I have to admit that I haven’t read the decision. It would harsh on my good mood today.

    However, I would be more comfortable with the decision if there was a requirement that these enhanced tax revenue base has to inform (that is, inflate) the purchase price.

    This would be sort of a self-correcting mechanism in that the enhanced revenue would have to be big to do an eminent domain based soley on the enhanced revenue. We would then be sure that a piece of that big money went to the landowners. this seems fair to me because the likely prospect of greatly enhanced revenue would certainly inform the market value absent condemnation.

    In other words, the homeowners would get a lot more money for a condemnation based primarily on enhanced tax revenue than for condemnations based on truly *public* “public uses.” Shades of Peevyhouse, maybe.

    Somehow I doubt the decision puts my preferred safeguard into place as a Constitutional matter, but I think it can be reasonably considered as part of “fair market value” as an interpretational matter.

  101. I already know what joe’s going to say: Past courts have ruled that “public use” really means “public purpose,” so who are we to say they were wrong?

    The best way to undermine freedom surely must be to convince its defenders to rationalize it on your terms.

  102. Question: Could Congress or the State Legislatures now pass laws limiting ED to legitimate public purposes, or barring the use of ED to transfer property from one private entity to another?

  103. The Great Ape: Instead of mass vomiting, lets do a mass flag burning at the less than supreme court?

  104. Further to V the K’s question:
    If a state were anti-condemnation, could the developer do a condemnation through the federal government based on Kelo?

  105. Mr. Ape and Kevin:

    the flag burning might be a better idea. Mass vomiting falls under the Patriot Act paragraph 10995633943454.443 on page 284867205876012897624 of the document:

    mass exodus through reverse parastalsis is equivalent to a chemical attack. violators will be submitted to 20 hours of “barney vs elmo: who is more friggin wholesome” while listening to subliminal messages contained within Don McLean’s never number one-one-hit-wonder, “American Pie”.

    where flag burning simply gets you a fine, scorn, derision, columny, and an environmental fine.

  106. Question: Could Congress or the State Legislatures now pass laws limiting ED to legitimate public purposes, or barring the use of ED to transfer property from one private entity to another?

    Answer: Congress has no jurisdiction here. State Legislatures have always been in a position to refine ED. See Utah for an example.

  107. V the K: The states can of course always limit ED. As for Congress, it can always limit federal ED. It cannot limit state ED in the name of enforcing the Fifth Amendment (as the Court indicated in invalidating the Religious Freedom Restoration Act, Congress can no more expand constitutional rights–as interpreted by the Court–than contract them) but it could try doing so on the ground that arbitrary state use of ED has an effect on interstate commerce. (And indeed, it actualy does–I might be less likely to move to Connecticut and do business there if I knew my property there could always be taken for the “changing needs of society”; at the very least this looks much more like a plausible case for the commerce power than medical marijuana…)

  108. Re: precedent. In Dred Scott the Court held that black people may be considered property. In Plessy v. Fergeson the Court held that “separate but equal” facilities are permissible. In Korematsu v. US the Court held that during wartime, American citizens may be interred solely due to their race. Once these decisions were made, should they have stood for all time? Stare decisis is a necessary and useful tool which insures continuity in the law. But, it cannot be applied automatically. If it is, then past injustices can never be corrected.

  109. Same Shit different day.
    Our first Republican President took the property of the Plains Indians and gave it to a bunch of Yankee railroad barons.

  110. “In addition to creating jobs, generating tax revenue, and helping to ?build momentum for the revitalization of downtown New London,? id., at 92, the plan was also designed to make the City more attractive and to create leisure and recreational opportunities on the waterfront and in the park.”

    So all you have to do is cobble together a “plan” that is supposed to achieve a variety of nebulous, speculative, and/or subjective outcomes.

    C’mon. I know a number of venture capitalists who would wet themselves laughing at a business plan that was as weak as what is described above. Its pretense, a sham, plain and simple. Sure, you can choose to fall for it (yeah, joe, I’m looking at you), but that doesn’t make it legitimate or real.

    This would justify just about any “taking” to create a Walmart, for example. How would that go down, joe? Well, it’ll creat jobs and raise tax revenue, so who cares how much seizing the family farm puts in Sam Walton’s pocket, eh?

    I can’t decide which has been a blacker day – today, the day the Court upheld McCain-Feingold, or the day the upheld federal jurisdiction over medical marijuana. Truly, the American experiment in government via a Constitutional republic is dead.

  111. IJ‘s press release makes a good point:

    Chip Mellor, the president of the Institute for Justice, said , “The majority and the dissent both recognized that the action now turns to state supreme courts where the public use battle will be fought out under state constitutions. The Institute for Justice will be there every step of the way with homeowners and small businesses to protect what is rightfully theirs. Today’s decision in no way binds those courts.”

    Most ED cases involve the states or their creatures – municipalities, counties, or quangos such as the development corporation in the Kelo case. If defenders of property rights can get the states to adopt laws or constitutional amendments that define “public use” more strictly than the SCOTUS has, those rights can be protected by appealing to the state constitution. That won’t be much good if the Feds come for your property, but so far that is still unususal.

    Kevin

  112. Hydroman — It was the left-liberals on the court (Ginsburg, Souter, Stevens, Breyer) who ruled in favor of letting local government confiscate property and give it to Big Business.

    Also, it has historically been the Democrat Party that has taken things away from people and giving it to a favored class. Andrew Jackson (Democrat) drove Indians out of the southest to benefit settlers and plantation owners. Antebellum and Jim Crow Era southern Democrats took freedom and labor from Africans to benefit those same plantation owners.

  113. In addition to creating jobs, generating tax revenue, and helping to “build momentum for the revitalization of downtown New London,” id., at 92, the plan was also designed to make the City more attractive and to create leisure and recreational opportunities on the waterfront and in the park.”

    Good to know that our inalienable rights will be violated for absolutely nothing less vital than pork.

  114. I can’t decide which has been a blacker day – today, the day the Court upheld McCain-Feingold, or the day the upheld federal jurisdiction over medical marijuana. Truly, the American experiment in government via a Constitutional republic is dead.

    Let’s just blend it all into “The Second Dark Ages” for the purposes of the history books. I’m seeing many similarities.

  115. For some reason I just started thinking about the cover of the album “The Royal Scam” by Steely Dan. A tramp flops on a park bench underneath enormous buildings which have become raging animals at war with one another.

    We are that tramp. Those buildings are the powers which control our lives, over which we ourselves have no control. We close our eyes and sleep, fearful of what we might encounter should we awaken.

    Let us read from the Book of Steely Dan:

    And they wandered in
    From the city of St. John
    Without a dime
    Wearing coats that shined
    Both red and green
    Colors from their sunny island
    From their boats of iron
    They looked upon the promised land
    Where surely life was sweet
    On the rising tide
    To New York City
    Did they ride into the street

    See the glory
    Of the royal scam

    They are hounded down
    To the bottom of a bad town
    Amid the ruins
    Where they learn to fear
    An angry race of fallen kings
    Their dark companions
    While the memory of
    Their southern sky was clouded by
    A savage winter
    Every patron saint
    Hung on the wall, shared the room
    With twenty sinners

    See the glory
    Of the royal scam

    By the blackened wall
    He does it all
    He thinks he’s died and gone to heaven
    Now the tale is told
    By the old man back home
    He reads the letter
    How they are paid in gold
    Just to babble in the back room
    All night and waste their time
    And they wandered in
    From the city of St. John without a dime

    See the glory
    Of the royal scam

  116. I fail to see what the big deal is. The SCOTUS is basically allowing each state to do it’s own thing with regards to how it handles private property. If you don’t want your state to pull shit like this, your legislature is the place to address it.

    Shouldn’t all you states rights people be praising this?

  117. I like the idea of going to the steps of the SC and throwing up, maybe on copies of the ruling.

    I’d actually do that, it’s only a 4 hour drive!

    Instead of a million man march, it could be the Hundred Thousand Hurl!

  118. Metalgrid – look into the 14th Amendment.

  119. I’m sure those leftist devotees of stare decisis on the Supreme Court think that Brown v. Board of Education is illegitimate, and that separate really is equal. After all, the Brown court had no right to overturn Plessy. 🙂

    I’m not surprised by the Kelo decision–I used to do work on Takings issues, and the Public Use Clause has been a judicial dead letter for decades. The appetite of government is insatiable, and the Supreme Court gave up enforcing the Constitution two or three generations ago.

    However, if you want to be a pure textualist, you have to support this result, since there is nothing in the U.S. Constitution that applies the Bill of Rights to limit the power of state governments–only a dubious extra-constitutional tool known as the “Incorporation Doctrine”. I suppose the parallel provision of the Conn. Constitution should prevent private ED abuses in New London, but the U.S. Constitution is, strictly speaking, silent on the issue.

    Our constitution dies a little more each day, and with it our republic.

  120. The 14th Amendment, which applies to the states, does not contain a Public Use Clause–only the Fifth has that, and only by jury-rigging the 14th Amendment through the Incorporation Doctrine can one arrive at the result of applying the Bill of Rights to the states.

  121. Rhwyun,

    “Aside from the fact that it’s not the government’s responsibility to do any of those things” The federal government, maybe, but this plan and these takings were the actions of a local government, which is, in fact, charged with doing that sort of thing.

    “the proper response when told that the land is not for sale is “OK, we’ll look somewhere else”, not “Gimme your land anyway” Ah, the fallacy of assuming that what is proper for the government is what is proper for individuals. Tackling someone and putting handcuffs on him when he won’t get into your car by his own volition is not “proper” for individuals, but is proper for government.

    “what’s to stop new London from simply levelling the town and building nothing but mansions in its place? Doesn’t that make the city more “attractive” to other wealthy taxpayers?”

    State Constitutions and political pressure.

  122. >I fail to see what the big deal is. The SCOTUS is basically allowing each state to do it’s own thing with regards to how it handles private property. If you don’t want your state to pull shit like this, your legislature is the place to address it.

    Shouldn’t all you states rights people be praising this?

  123. >I fail to see what the big deal is. The SCOTUS is basically allowing each state to do it’s own thing with regards to how it handles private property. If you don’t want your state to pull shit like this, your legislature is the place to address it.

    Shouldn’t all you states rights people be praising this?<<br />
    The Supreme Court’s opinion rests on the interpretation of the term ‘public use’ as anything that the government deems as potentially generating more tax revenue that what a property is currently being used for. Kinda reminds you of how, only 2 weeks ago, we learned that ‘commerce’ means giving certain leaves to another person.

    Anyone who holds the quaint belief that the law was meant to be something more than a set of guidelines that clever lawyers can argue around to suit the current political climate should abhor rulings like this.

  124. Jason Ligon,

    I actually agree with you that the door is left too open in this decision. I was hoping the court would provide more guidance. They left it at a “know it when I see it” doctrine.

  125. So, no whining from Joe when the city seizes the Womyn’s Organic Foods Co-Op and Herbal Medicine Center so that Wal-Mart can build a SuperCenter.

  126. Evan,

    “It’s clear that ED was reserved for public infrastructure.” No, it is not. The railroads built on taken land were not public infrastructure, but private property.

  127. “Ah, the fallacy of assuming that what is proper for the government is what is proper for individuals. Tackling someone and putting handcuffs on him when he won’t get into your car by his own volition is not “proper” for individuals, but is proper for government.”

    And yet, somehow, giving a private entity authority to forcibly evict another private entity from their own property so that they may take ownership of it against the will of the original property owners, that’s “proper”? In what silly-assed world is that a “proper” government action?

  128. “No, it is not. The railroads built on taken land were not public infrastructure, but private property.”

    Which was ALSo an unjust usage of eminent domain seizure.

  129. V the K, as the majority decision states, many states do have higher restrictions on the use of ED than the federal constitution.

    RC Dean, “So all you have to do is cobble together a “plan” that is supposed to achieve a variety of nebulous, speculative, and/or subjective outcomes.” The Supreme Court held today, and has always held, that judgement calls like this are the proper territory of the legislative branch.

    “I know a number of venture capitalists who would wet themselves laughing at a business plan that was as weak as what is described above.” The planning document runs to several hundred pages – that’s just a statement of its mission, which venture capitalist put out all the time. But somehow I doubt the quality of the plan would make a difference in your judgement, so why are you bringing it up?

  130. OK GUYS…I AM USING CAPS SO YOU WILL READ THIS:
    THIS IS FOR PEOPLE WHO ARE PROPERTY SQUATTERS… AS IN WHEN 99% OF THE AREA HAS BEEN BOUGHT OUT AND A COMPANY IS WAITING ON ONE .25 ACRE 80K LOT THAT THE OWNER IS ASKING 2MILLION DOLLARS FOR… THEY ARE MAKING IT SUCH THAT THE GOVERNMENT CAN GIVE THE OWNER THEIR LAND VALUE RATE AND THEN SAY: “LEAVE”.

    This does not mean that the goverment can come in and take your land whenever they want. They have to have justification and a well thought out WIDELY AGREED UPON PLAN that has been AGREED BY THE LOCAL COMMUNITY.

    So… take a chill pill… and realize there are no evil plots out to get you. Oh… and stop smoking so much pot… it makes you paranoid (as well… too much caffeine can have similar if not the same paranoia affect.)

    So… take yoga… cleanse your body… eat right… and chill out. This whole thing is COMPLETELY misunderstood by the press…

  131. hmm, taking private property for the sake of the common good. isn’t there a word for this? like “communism” or something?

  132. The place wouldn’t be the same without joe, no doubt about it.

    However, if you want to be a pure textualist, you have to support this result, since there is nothing in the U.S. Constitution that applies the Bill of Rights to limit the power of state governments–only a dubious extra-constitutional tool known as the “Incorporation Doctrine”.

    Oh, I dunno. The takings clause doesn’t specify which level of government it applies to, unlike some other provisions of the Bill of Rights (“Congress shall make no law. . . .”). I see no textual reason to limit the takings clause to the federal government, even without the incorporation doctrine.

  133. noel, agreed by the local community, but not you. it’s not the specific incidence of the case that’s got people scared, it’s the justification behind it, and the precedent it sets.

    in related news, the local community has just agreed to beat the crap out of you. no it’s not illegal, or even wrong for that matter, because jeeze, everyone agrees.

  134. If the US once again becomes a country where liberty is jealously guarded Kelo and Raich will be seen as analogous to Dred Scott. Stare decisis enabled separate but equal; justice destroyed it. Unfortunately many, many more people will have their property taken to enrich those with political pull before such takings are seen to be unjust.

    If not …

    “… in a free government almost all other rights would become worthless if the government possessed power over the private fortune of every citizen.” John Marshall was an intelligent man.

  135. Here in California property taxes are held down by Proposition 13. When you buy a piece of property it’s assessed at the purchase price, but as long as you own it the assessment can only go up by a very small amount (1%? Something like that) per year.

    In a time when property is increasing at 20-30% per year, people who’ve had their property for a long time are paying a fraction of what their neighbors pay.

    So, lets say a city wants more money (hard to imagine, I know). They form a redevelopment agency, condemn everything in the city, and offer it for sale for the condemnation price. The old owners get first crack at it.

    The assessment goes up to current fair market value, the city gets LOTS more money. The SC has ruled that increasing taxes is “public use.” Of course, the old people on fixed incomes get the shaft, but we didn’t want them living here anyway.

    What do you think?

  136. They have to have justification and a well thought out WIDELY AGREED UPON PLAN that has been AGREED BY THE LOCAL COMMUNITY.

    I could say, “Um, no, Noel. You see, there are these people called “bureaucrats” who work in government “agencies” who are not elected by the people and who don’t have to get popular approval for a plan they approve…”, or in the case of elected officials, explain the difference between “community” and “politicians”.

    But why bother?

  137. Evan, good on you. To be consistent, you actually do have to go all the way back to the railroads, and even further back to the laws allowing mill owners to flood their neighbors’ lands, in order to object to public purpose takings.

    V or K,

    “So, no whining from Joe when the city seizes the Womyn’s Organic Foods Co-Op and Herbal Medicine Center so that Wal-Mart can build a SuperCenter.”

    There will be enormous amounts of whining. I would whine about the legitimacy of the public purpose in front of the appropriate venues, and wisdom of the plan in front of the city council.

    Finally, stare decis is, as others have noted, not an eternal absolute. It is, however, to be violated rarely, with caution, and only when there is dire necessity.

  138. Kinda reminds you of how, only 2 weeks ago, we learned that ‘commerce’ means giving certain leaves to another person.

    Its worse than that. We learned last week that interstate commerce is involved when someone grows a plant and then burns that plant, all on their own property.

    NOEL – NOWHERE DOES THE OPINION LIMIT EMINENT DOMAIN TO THE SITUATION YOU DESCRIBE. In fact, eminent domain is used all the time to seize all or most of the land used in large projects like stadiums, not just the last few parcels. Oh, and OWNERS BY DEFINITION CAN’T BE “SQUATTERS”.

  139. Uhh … make that Plessy. Don’t know what I’m thinking today.

    Yeah, and I’m so slow others already made my point.

  140. For:

    “WIDELY AGREED UPON PLAN that has been AGREED BY THE LOCAL COMMUNITY”

    substitute:

    PRIVATELY NEGOTIATED PLAN that has been INSTITUTED BETWEEN DEVELOPERS AND CORRUPT CITY OFFICIALS

    Just correcting a few grammatical errors, Noel.

  141. They have to have justification and a well thought out WIDELY AGREED UPON PLAN that has been AGREED BY THE LOCAL COMMUNITY.

    In other words, four wolves and a sheep get to vote on who’s for dinner.

  142. Shouldn’t all you states rights people be praising this? – metalgrid

    If you find some “states’ righters” around here, `grid, tell then to listen up. States don’t have rights, PEOPLE do! The fondness we libertarians have for the tenth amendment, and even moreso for the ninth, is about properly delineating the enumerated powers of the various levels of government, as set against the rights of the people. Sometimes we have deposited a power with the Federal government, sometimes with the states, sometimes a bit with both, and sometimes we reserve a power so that no level of govt. can muck with our rights. In Kelo we had hoped that the Feds would have interpreted “public use” more strictly than the states and feds have recently. Nothing in that decision changes the incorporation doctrine, under which the states have to adopt the principles of the Bill of Rights as part of the “due process” guaranteed under the 14th Amendment. As I noted above, the citizens of the several states are still free to set a stricter definition of public use for takings by their state and local governments, but the Feds will only hold them to the current, looser standard.

    State constitutions frequently have stronger guarantees of certain rights than the CONUS does, and there is nothing wrong with that.

    Kevin

  143. Noel,

    Land value is not the objective simplicity you make it out to be. Your above example is of an attempted private/private economic exchange. It is a very simple concept, much like when someone inquires about my car and I say I’ll sell it for $20,000 and he says $15,000 and brings the govt in to force the transaction at $15,000. Lunacy. It’s none of the “community’s” fucking business that I don’t want to sell my car for less than 20k. “Well thought out plans” are a non-issue.

  144. what ape man said.

  145. “Finally, stare decis is, as others have noted, not an eternal absolute. It is, however, to be violated rarely, with caution, and only when there is dire necessity.” I don’t agree completely. “Dire necessity” means that decisions will be evaluated by their result, rather than the reasoning behind them. Whether a prior decision is to be used as precedent must be determined by the validity of the reasoning by which that decision was made, not whether it is “necessary” to achive a desired result.

  146. RC Dean, the text of the 9th and 10th Amendments makes it clear that the U.S. Constitution must be narrowly construed in limiting the rights of the states or the people–ergo, the Fifth Amendment would have to explicitly state that it applies to the states in order for it do so.

    And, interestingly, it was not until the addition of the 14th Amendment that the Bill of Rights ever was interpreted to apply to the states, though there is some debate about a couple of earlier decisions on that point.

  147. Anyone else confused here? It seems they justified the taking because it was for public use…

    “Because [the] plan unquestionably serves a public purpose, the takings challenged here satisfy the Fifth Amendment. P. 13.” -Court Opinion

    But the 5th Amendment says “…NOR shall private property be taken for public use….”

    I don’t get it. They justified the taking by violating the constitution, then said that their violation satisfies the constitution…My head is spinning a little…

  148. Stare decisis, strictly speaking, is a feature of the common law (in fact, it’s the glue that holds together such an unwieldy notion as the common law) and does not have to be applied to black-letter law, such as the Constitution, in my opinion. Part of the point of having black-letter law is to avoid the “dead hand” nature of the common law.

  149. Ahem, may I remind everyone that it’s a living document (the constitution)!

    At least that’s what my liberal friends used to tell me. I wonder if they’ll still call it that after the last couple of Supreme Court decisions.

    Paul

  150. ChrisO, there was a pre-14th amendment tradition of referring to the Bill of Rights in some state cases, but only as a basis for arguing the legal principles involved. States often happily violated the Bill of Rights up until then – official state churches in the early 19th century, punishments (often vicious and sometimes capital) for preaching abolitionism in the South, etc.

  151. Oh, and anyone trying to pose this as a states rights conundrum should be reminded that those of us that believe in states rights, do not believe that a state right can overturn the bill of rights. States rights issues come down to nebulous, non-constitutional issues. A state cannot search my house without a warrant. End of story- it’s unconstitutional. So don’t even try to hit us with the ‘haha, states rights smacked you back’, cause it ain’t working.

    Paul


  152. Comment by: annonymous at June 23, 2005 02:31 PM

    This isn’t a federal issue to begin with. ED and property rights are the premise of states to begin with. Assume for a moment that you actually do own your property (which you really don’t – you’re merely leasing it from the state powers that be), it is the power of the state that covers it according to the constitution – not the feds, unless you really want to go into an activist reading of the BoR and co-opt a few more amendments along for the ride.


    The Supreme Court’s opinion rests on the interpretation of the term ‘public use’ as anything that the government deems as potentially generating more tax revenue that what a property is currently being used for. Kinda reminds you of how, only 2 weeks ago, we learned that ‘commerce’ means giving certain leaves to another person.

    Again, you’re trying to stick something on the scotus that they shouldn’t be messing with in the first place. The courts opinion rests on the fact that the feds shouldn’t be messing around with ED and property which is clearly the states decisions.
    The only similarity between this and the ‘commerce’ decision rests in the refusal of the courts to overturn already existing law. Remember that bit about the courts power being negative – well this is a prime example of that – if the courts do not exercise their negative power, you end up getting a positive result in that a bad law gets enforced.


    Anyone who holds the quaint belief that the law was meant to be something more than a set of guidelines that clever lawyers can argue around to suit the current political climate should abhor rulings like this.

    Gotta love how all of you are so eager to blame courts for this, when instead, you should be blaming your legislature that made the bad law in the first place. Or are you people finally wisening upto the fact that your politicians are so deep in the pockets of special intrests and lobbyists, that you don’t have a choice in that matter at all, and your only hope rests on the courts?

    Something about getting the government you deserve comes to mind.

  153. At this point, the Constitution is no longer a living document. I think it’s in a permanent vegetative state.

  154. Assume for a moment that you actually do own your property (which you really don’t – you’re merely leasing it from the state powers that be)

    wait, what?? what the fuck was that???

  155. “They have to have justification and a well thought out WIDELY AGREED UPON PLAN that has been AGREED BY THE LOCAL COMMUNITY.”

    Phew. That makes me feel better. As long as there is a “plan.” Plans made by governments and the local communities never go wrong, nor are they ever corrupt. As long as there is a group of people that can sort of guide me, and let me know what is best for me, I will just calmly sit here and wait to die.

  156. it is the power of the state that covers it according to the constitution – not the feds, unless you really want to go into an activist reading of the BoR and co-opt a few more amendments along for the ride.

    1) 14th Amendment. Been there a while, rather plain language.

    you don’t have a choice in that matter at all, and your only hope rests on the courts?

    2) Something about “fat ladies” and “singing” comes to mind, but we all have our delusions to help us sleep at night.

  157. It strikes me, again, that joe focuses on outcomes over principles (although he has said outcomes are his principles).

    The railroad and mill issues do not follow the Constitution, if words have meaning. I like the outcomes that wrongly-applied judgements produced in those cases, but it is still not what is written. I trust human ingenuity to produce good results without resorting to coercion. Taking of contiguous property for railroads is a convenient solution, but not necessarily the only solution.

    A government which protects individual rights is not efficient. It is, if anything, a balancing force to the ruthless effciency of people working for their own interests.

  158. Unlimited and as yet unimaginable of powers…

    Life: Your personal relationships are not yours to decide in the right wing GOP nanny state of America. No gay marriage permitted

    Liberty: Your body is not your own in the right wing GOP nanny state of America. No medical cannabis permitted

    Pursuit of Happiness: Your property is not your own in the right wing GOP nanny state of America. No private property permitted.

  159. Words do have meaning, Dynamist. They just don’t always have the meaning you would like them to have.

    If the 5th Amendment contained the words “physical occupation by the government and/or public” or somesuch, the question would be as clean as you all pretend it is. But it does not.

    The City of New London intends to use the land it takes to implement a redevelopment plan, one that is intended to achieve a number of perfectly legitimate public purposes.

  160. Eric the .5b:

    –the states could not have been “violating” the Bill of Rights, since it did not apply to them…but I’m just being a bit snarky there. 🙂

    –In reality, though, the 14th Amendment does not apply the Bill of Rights to the states. It took a bit of ‘magical realism’ (or maybe an especially good dose of absinthe) for the Supreme Court to pluck that shit out of the air around 1890. While both the Fifth and 14th Amends. contain Due Process Clauses, the leap of “logic” it took for the Supreme Court to convert “Due Process” to mean “wholesale incorporation of the Bill of Rights” is much cheekier than what the Court did in Kelo, or Wickard, or that matter.

  161. well then, as long as they have good intentions, who can complain, right?

  162. “public purposes” does not equal “public use”. The precedent that equates the two sucks.

  163. joe, you misspelled the word “use”. It is not spelled “p-u-r-p-o-s-e-s”. I’m sure there are plenty of sites with the text of the Constitution if you’d care to check the spelling.

  164. Your best shot is to plant an endangered specie on your land.

    — Richard Zeien

  165. Wow, spelling. I guess that undoes 150 years of precedent.

    I’ve got few words to spell out, a-s-

  166. ChrisO,

    You’re apparently confused. The theory of incorporation rests on the phrase “privileges or immunities”. There is significant evidence that “incorporation” was the intent of the writers of the 14th amendment. And from an original meaning point of view, the wording seems clear as well. See the book The Bill of Rights: Creation and Reconstruction by Akhil Amar.

  167. Fine. I forgot that precedent overrules the actual text of the Constitution. As has already been argued, Plessy should still be in effect, and how dare the Supremes overturn that. There was precedent! You would, if we were in the days before Brown vs. Board of Education, then argue that “separate but equal” should be upheld? If not, why not?

  168. joe-

    The thing is, you act as though a redevelopment plan is good enough reason to kick somebody out of their house. I have no doubt that there are lots of big ideas and good intentions in the plan (although I also recall something about collecting more taxes).

    But, I mean, at some point there has to be a balance between the greater good and the individual. I might skew more towards the individual while you might skew more towards the greater good. But I hope you’d agree that if the homes are in good shape and the neighborhood isn’t crime-ridden, then it shouldn’t be enough to take away a home simply because some people think the area would be nicer, even significantly nicer, with new developments.

    I know some people here object to any use of ED, but let’s just suppose, for the sake of argument, that it’s justified in certain cases. My problem with this ruling is that it grossly expands the permissible scope of ED.

  169. Wow, spelling. I guess that undoes 150 years of precedent.

    Actually, it does. Justice Thomas appears to think so (although I have yet to read his dissent) and so do I.

  170. Dear Mr. Homeowner:

    You need to get the fuck off [what will be] my property. You see your [old] $150,000.00 shithole sits right where I want to put my new $3,000.000.00 house. No, just shut the fuck up and get off. You see, I convinced 3 of the 5 city counsel members [who I hand chose because of thier ability to suck cock without chocking and, after all, they do know what’s best] to my plan [which is to raze your shit hole build my house complete with sidewalks and hibicus trees].
    What is the public use of my private abode you might ask? Shut the fuck up and quit being so fucking literal. You see, I am a communitarian [read: liberal] and I don’t give a fuck about individuals but the community. And god damn it, the community needs more cops because there are too many god-damn cancer patients smoking all that pot.

    Sincerely

    Mr. Fuck You

  171. In reality, though, the 14th Amendment does not apply the Bill of Rights to the states. It took a bit of ‘magical realism’ (or maybe an especially good dose of absinthe) for the Supreme Court to pluck that shit…

    Actually, it applies every personal protection incorporated into the Consitution, but I’ve lost any interest in trying to point at an utterly dead document.

  172. Precedent, even if it has lasted for 150 years, should not be followed blindly. If a decision was made as a result of a coin toss, or a fist fight among the Justices, there could be no argument that it should not serve as precedent. Similarly, if a decision was based on illogical or specious reasoning, or from a desire to achive a certain result, it should not be cited in future rulings.

  173. thoreau,

    “Good enough” from a constitutional perspective. Probably a bad idea from a public policy perspective. The Court was not asked to rule on whether the New London plan was a good idea.

    “simply because some people think the area would be nicer, even significantly nicer, with new developments” This is not an accurate description of the plan’s purpose.

    “My problem with this ruling is that it grossly expands the permissible scope of ED.” No, it maintains the status quo. Your problem is with the status quo.

    The status quo is as follows: the government can only take land for a public purpose, and must pay just compensation. The job of determining what is a public purpose falls to state courts and legislatures.

  174. metalgrind, i see what you’re saying, but taxes don’t equate to rent. ideally, i would be paying the government for the protection of my property, which remains mine.

    granted, in practice i’m paying them for any number of other things (that i don’t want to), but that also buys me citizenship and the right to work and trade in the country. i still own my own property. let’s not get too carried away here.

  175. Alright, joe, how have legislatures and courts defined “public purpose”? What constitutes a “public purpose”?

  176. I’m not even sure we need to look to the “incorporation” doctrine from the 14th, when Section 1 works nicely:

    All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside. No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

    Are these people having their land stolen being given due process? Is the law being applied unequally? I’d say maybe and definitely.

  177. I wonder how soon we’ll see freedom of speech abuses with this. After all, what better way to stop dissenters than to take their property and turn it into townhouses…?

  178. shame on anyone who has a problem with the status quo.

  179. No, it maintains the status quo.

    No, it does not maintain it, it enhances it. It further undercuts the meaning of “public use”.

  180. Start publishing the names and addresses of the developers and city council members and mayors.

    And the addresses of gun shops.

    Let the culling begin.


  181. metalgrind, i see what you’re saying, but taxes don’t equate to rent. ideally, i would be paying the government for the protection of my property, which remains mine.
    granted, in practice i’m paying them for any number of other things (that i don’t want to), but that also buys me citizenship and the right to work and trade in the country. i still own my own property. let’s not get too carried away here.
    Comment by: zach at June 23, 2005 03:47 PM

    Oh you poor deluded boy. Here’s a suggestion – stop paying your property tax. See if:
    1. Your trash pickup stops, police stop responding to breakins to your house, etc.
    OR
    2. You get dragged into court, then dumped in jail, and your home is taken by the state.

    If it’s #1, then yes, you’re right, government is just involved in protection. If it’s #2, then you’re just a tenant (at will).

  182. The precedents that were established in this area were not decided “by a toss of a coin,” or by the desire to maintain a system of racial segregation.

    They were decided based on the observation that certain private activities were 1) necessary for our society to prosper and succeed and 2) so geographically constrained as to make the ownership/control of specific pieces of property, rather than any old piece of property, necessary for their function.

    For example, you can’t tell someone who is creating a mill pond that he should flood A’s land instead of B’s. The river is going to flood where it is going to flood. We either allow upstream properties to be “taken,” or we don’t get the mills. Another example is a railroad – you can’t tell someone to build the next stretch of track on the parcel 1000 north of the existing track. The rails need to meet each other. We either get a railroad, or we forbid the use of eminent domain for the construction of a railroad.

    Without commenting on the quality of the plan, New London cannot redevelop this area into an economic engine that will reverse the city’s decline by buying parcels of land in a different neighborhood.

    There was broad agreement as to the necessity of the earlier “public purpose” takings, and the court interpretted the neutral constitutional language in the manner that allowed the takings, rather than in the manner that forbade them. It will take similar broad public agreement in the other direction to reverse the generations of precedent. Do you really want the courts to be changing the direction of the law on a dime? That’s a dangerous situation – it results in massive disruptions, and makes responsible planning for the future, by both private parties and public, impossible. Stare decis (which is a controlling factor in constitutional interpretation, like it or not) became a controlling factor in how courts work for a reason.

  183. false dilemma. i can also move out of the country.


  184. nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

    I’d go as far as to say that yes there was due process – the process may not have turned out as they would have liked, but it was there.

    As for the last part, anyone could buy off the state legislature, city council, etc. So these people were given the chance to do so, but didn’t. Seems like they got pretty equal treatment there too.

  185. Don’t you see, those selfish individualists were holding onto their homes rather than surrendering them to the business elite who could surely put them to better use!

    lol — i do think this is a strange permutation for a government founded on the sanctity of property, mr thoreau. but i’m hardly aghast. the majority is right to say that precedent is long settled. the battle of kelo was fought and lost in the 19th c.

  186. You know what? metalgrid is absolutely right. God that’s depressing. Granted, it’s right in a geek way that only libertarian-thinking people can really groove on, but still…

  187. Dear god, joe, are you ever going to acknowledge that you (and the courts) keep saying “public purpose” when the Constitution says “public use”?

  188. …wait. that proves your point.

    heh, i stand corrected.

  189. thoreau,

    Public purpose is related to the police power. In general, it refers to the pursuit of the ends that the government may rightly pursue.

  190. Life: Your personal relationships are not yours to decide in the right wing GOP nanny state of America. No gay marriage permitted

    But, nothing and no one prevents you from making a committed relationship with a person of the same-sex. Some people are capable of remaining committed without a permission slip from the state. Not to mention, even after 10 years of Republican rule in the House and five years of Bush, you can still go to a bar or a bathhouse and hook-up with whoever you want. Damned inefficient, these right-wing theocratic morality stormtroopers.

    Liberty: Your body is not your own in the right wing GOP nanny state of America. No medical cannabis permitted.

    Because of the right-wing principle that the Federal Government and collective rights have primacy over state and individual rights. Oh, wait…

    Pursuit of Happiness: Your property is not your own in the right wing GOP nanny state of America. No private property permitted.

    Because of a decision by four left-wing justices joined by one moderate to support a state confiscation of private land by a democrat-dominated city government in a state John Kerry carried by 10 points.

    But, hey, don’t let the facts stand in the way of your knee-jerk bashing.

  191. metalgrid,

    There is no requirement that the government collect taxes solely via a property tax. If they only collected income and sales taxes, and I lived on a self-sufficient farm, your argument would collapse.

  192. Grow up, Steve. The debate is not about the words in the Constitution, but their meaning.

  193. Steve: The answer will be that precedent has already settled the issue, and “purpose” and “use” are the same thing when it comes to the Supremes.

  194. V of K,

    You might have added that the majority did nothing more than apply the doctrines that were created and sustained by numerous courts, with justices appointed by Republicans, Democrats, and Whigs, over the course of the past century and a half.

    But hey, don’t let that get in the way of blaming it all on John Kerry.

  195. Joe,

    Do you know how many times – “In addition to creating jobs, generating tax revenue, and helping to ?build momentum for the revitalization of downtown [fill in the city]” has been used to fleece taxpayers out of millions of dollars for huge subsidies to sports team owners?

    How about I get a developer together and decide that your neighborhood is a great place for a new stadium – oh and also give us $400 million to build it. A study? no big deal – I can pay anyone a large enough fee to say what i want them to say.

    or here in New York city, where economic development for a long time has meant multi million dollar giveaways to corporations so that they will grace us with not moving to Jersey (and good riddance if they did) At least for the new NYT building they had to seize under the rubric of ‘blight’. Now they don’t even have to pretend anymore.

    That whole ED game is bullsh*t. Businesses make promises to the stars to governments, who then proceed to give away the house. The business delivers on a fraction of what it was supposed to, but you know what?

    The subsidies have been given away already and are gone forever.

    Witness the”new” urban renewal program for current times.

  196. joe, i think most people will agree that the courts have decided this case in line with precedent, and that like it nor not, this is the way our country works today, and that there is still law and order in the land.

    that doesn’t change the fact that this decision decidedly sucks.

  197. Perry,

    Do you know how many times the carrying of a gun and badge has been used so solicit bribes? Do we conclude, therefore, that the “police game” is bullshit?

    Perhaps if people like you were interested, and able, to argue about proposals using language and doctrines that are applicable to, at a minimum, the late 20th century, there would be better outcomes. But hey, how much cooler is it to pose as John the Baptist, and get absolutely nothing done?

    BTW, there are hundreds, if not thousands, of successful urban renewal programs all across the country. You aren’t aware of them because the one’s that work just aren’t interesting enough to make the news.

  198. Would you please name a country respecting property rights?

  199. But hey, don’t let that get in the way of blaming it all on John Kerry.

    Wow, you just knocked the crap out of a straw man, but I’m over here… i.e. in the place where facts were pointed out and Kerry was not blamed.


  200. There is no requirement that the government collect taxes solely via a property tax. If they only collected income and sales taxes, and I lived on a self-sufficient farm, your argument would collapse.
    Comment by: MP at June 23, 2005 04:01 PM

    Well that’s true. Property tax is just the rent you pay on your house. Income tax is the money you pay to the state for letting you sell your skills. Sales tax is the money you pay the state for letting you sell your goods. Self-sufficiency would work to avoid the latter two – which kinda sounds rather Galtish. I know that’s a pretty extreme way of stating it, but I think we’re beyond the point of no return anyhow. Incrementally we lost a crapload of liberty while we weren’t vigilant. What we’re seeing now is just that big rock rolling downhill and picking up speed.

  201. Earth,

    This is GOD. I’ve got a buyer that’s interested in the property.

    I need all of you to be out of here by the end of the month.

  202. OK, joe, but “use” and “purpose” are different words, with different meanings. We can argue about what they should mean — in my mind, “public use” would be more restrictive than “public purpose” — but you’ve just glossed over the fact that they mean different things, substituting one for the other.

  203. “The precedents that were established in this area were not decided “by a toss of a coin,” or by the desire to maintain a system of racial segregation.

    They were decided based on the observation that certain private activities were 1) necessary for our society to prosper and succeed and 2) so geographically constrained as to make the ownership/control of specific pieces of property, rather than any old piece of property, necessary for their function.”

    Leaving aside the questions of whether these observations were, in fact, the basis of the court’s prior decisions and whether the reasoning from those observations is consistent with the 5th Amendment, these observations and reasoning may not have provided adequate basis for the Kelo decision.

    As Justice O’Connor noted in her dissent:

    “In moving away from our decisions sanctioning the condemnation of harmful property use, the Court today significantly expands the meaning of public use. It holds that the sovereign may take private property currently put to ordinary private use, and give it over for new, ordinary private use, so long as the new use is predicted to generate some secondary benefit for the public?such as increased tax revenue, more jobs, maybe even aesthetic pleasure. But nearly any lawful use of real private property can be said to generate some incidental benefit to the public. Thus, if predicted (or even guaranteed) positive side-effects are enough to render transfer from one private party to another constitutional, then the words ?for public use? do not realistically exclude any takings, and thus do not exert any constraint on the eminent domain power.”

  204. Shouldn’t all you states rights people be praising this?

    While we’re at it, let’s send slavery legislation back to the states as well. Tyranny of the masses at the state level is no better than at the federal level. Besides, the SCOTUS sure seems uninterested in letting states decide whether abortion is a right or not.

    Enough already with the ED acronym, I have visions of Vi@gra and Ci@lis swimming through my head.

  205. — i do think this is a strange permutation for a government founded on the sanctity of property, mr thoreau. but i’m hardly aghast. the majority is right to say that precedent is long settled. the battle of kelo was fought and lost in the 19th c.

    Whenever I read a post by gaius marius in my head he has the voice of Stewie from “Family Guy” I just became aware of this and thought the rest of you might be interested.

  206. Hey V the K
    Repubs or Demos it don`t make a dimes worth of difference they both use the Constitution for butt-wipe.
    metalgrid — your truth shines out like a nickel in a goats ass.
    Only an ex-wife can take your property faster than the county assesers.

  207. Steve,

    The property is used to achieve the public purpose. The land taken for the construction of a private freight railroad may not have been physically used by the public, but was used to facilitate the public purpose of promoting commerce and industry.

    Jeff Shapiro,

    The Kelo decision was indeed not based on those observations, but on the legal doctrines, enunciated in previous decisions, that flowed from them.

    But I recant what I said earlier to thoreau – this decision does not uphold the status quo, but expands ED power.

  208. joe,

    your defense of all of this seems to be that, since there is a question of the meaning of the constitution, the supreme court was fulfilling its intended purpose by interpreting the constitution and upholding precedent.

    i think most of us already agree with that. the question is whether or not their decision was a good thing.

  209. Whenever I read a post by gaius marius in my head he has the voice of Stewie from “Family Guy”

    “Idiots!”

  210. Alright, joe, how have legislatures and courts defined “public purpose”? What constitutes a “public purpose”?

    An answer to which will NEVER come, at least in the technical sense. What will come, contrary to every syllable in every founding document and principle, is a meandering word game followed by the policies of pure democracy. You get enough folks to vote it in, and you can, under this new government, make murder legal.

    The folks who reframe everything subjectively do so to modify freedom by changing the terms of the argument.

    How about this: YOU, joe, show ME where the Constitution — either in its word or meaning, for crying out loud — grant rights to government to redistribute wealth? Make no mistake, that is what this ruling establishes.

  211. You will not elevate the urges of the individual to the status of high principle.

    For each elevation of individualistic urges to the status of high principle, I shall kill you.

  212. Wow. Now Joe’s onto dismissing anyone critical of city stadium scams as not even hitting the late 20th century. Lookit’im go.

    Ah, well. Someone has to be happy about the decision.

  213. Eek. And now the joebot’s gone rogue and threatens humanity, his springy metal arms waving his claws wildly…

    Darn liberals.

  214. How is this different from the stuff people complain about me doing in Zimbabwe? My government is just as concerned with economic development as Connecticut’s.

  215. Eric, see my Goldwater/Civil Rights Act post above.

    An action can be constitutional, and stupid, you know.

  216. then joe, why haven’t you moved to cuba already?

  217. “The Kelo decision was indeed not based on those observations, but on the legal doctrines, enunciated in previous decisions, that flowed from them.” – Your argument presupposes, first, that the “legal doctrines, enunciated in previous decisions” were based on sound reasoning from constitutional principles and, second, that Kelo was, in fact, based on those doctrines and did not unduly expand them. My previous posts have been based on the principle that “precedent” is not a magic word. Precedent can only be invoked if the first point is true. Justice O’Connor, for her part argues that Kelo is an undue expansion of those doctrines. Is she wrong, or are there taking which would be excluded under Kelo?

  218. “How is this different from the stuff people complain about me doing in Zimbabwe?”

    You don’t pay for the land? You know, that “without just compensation” language?

    Eric, it’s a Family Guy reference. Good show, you should check it out.

  219. Great Ape:

    One can obstain asbestos in large quantities. Make the bitches choke on OSHA regs!

  220. Stewie from “Family Guy”

    lol — in reality, my voice is james earl jones.

  221. Ok, ok. Joe, the rest of you arguing that this was a good decision– I give. You win. I realize that this is not a slippery slope, as I previously thought. I now realize that it’s what’s known as a ‘limited slippery slope’. Bottom line: As long as this don’t affect me, and only stomps the po’ folks, what do I care? I am now a convert, and pointing my browser to register as a Democrat. I feel such a sense of relief. It’s easier to give in than to fight.

    Paul

  222. Eric, see my Goldwater/Civil Rights Act post above.

    Yeah, yeah, shame about those broken eggs.

  223. Jeff,

    There are indeed takings that would be verboten after Kelo. Anything that violated a state constitution, for example.

    I agree with you, though, that Kelo leaves the door too open. I would have been happy with a Poletown-reversed-no-blight-no-taking decision. Or something other than “Yee-haw, bar’s open, boys!”

    It’s not the precedents that were followed that bug me – it’s those that were ignored.

  224. paul, i still haven’t seen joe say this is a good thing. i think he just likes to argue.

  225. Perhaps I should revisit the Incorporation Doctrine–it’s been awhile. In any event, I’m not holding my breath for the Incorporation Doctrine to go the way of Plessy or Dred Scott… 🙂

    The framers’ intent with the U.S. Constitution was primarily to keep the federal government within its boundaries. On the presumption, of course, that the state governments were inherently less tyrannical and more representative. As the abuse of ED proves, such is all too often not the case. As a textualist, I do believe that the U.S. Constitution must be interpreted primarily as a restriction on federal power, but that does not mean I’m all ga-ga over what state govts. do. And frankly, in the arena of property rights, state and local govts. are the biggest offenders. Property rights protections in state constitutions have been truncated even more than federal protections.

    There’s a second issue with eminent domain abuse that has not been broached here. The real reason that the Trumps of the world love eminent domain is that they can use it to acquire land at *below market value*. The acquisition process is a joke–government always lowballs the property owner, since–of course–it is making an offer the owner can’t refuse. If the owner doesn’t like it, they can rack up six figure legal bills to try and force the govt. to pay market value–which most smallholders obviously cannot do. So it ends up being somewhat akin to the mafia, in reality. These homeowners in New London will be underpaid for their property, even if they wished to sell.

  226. After the land is taken for the benefit of the public, the local public should make good use of it. Maybe have a few BBQs, light a nice fire and drink some beer. It might be a convienent place to dump some garbage when they start digging those big holes in the ground. Who knows, somegenerous indiviuals might even leave a few bundles of plywood or 2 x 4’s the public may want to use for their own good.

  227. lol — in reality, my voice is james earl jones.

    Hmm, mines a little Tom Hanks and that ‘generic’ american soldier taunt voice in the video game Castle Wolfenstein with the Enemy Territory patch.

    Did I mention that this SC decision doesn’t affect me, so I no longer care?

    Paul

  228. Joe, you know, you could make up your mind whether this decision just maintains the status quo or expands it enough to make even you uncomfortable.

    Just saying.

  229. Eric, it’s a Family Guy reference.

    Ah. I never liked that show.

  230. “There are indeed takings that would be verboten after Kelo. Anything that violated a state constitution, for example.” Are there any takings that would violate the federal constitution? Under what circumstances would a taking by the federal government not be for a public use/purpose?

  231. I agree with you, though, that Kelo leaves the door too open.

    there it is!! he doesn’t even like this shit!! he just wants to argue until we all lose our minds and jump out of our windows! lol…

  232. Eric, you could try reading my posts.

    zach, I have this annoying tendency to, on occasion, hold an opinion that is neither black nor white. It does tend to make the feebleminded jump out of windows, but so much the better.

    “The acquisition process is a joke–government always lowballs the property owner, since–of course–it is making an offer the owner can’t refuse.” From what I’ve seen, this is not really true anymore. Because of the really abusive stuff that went on during the Urban Renewal/Urban Highways days, the laws have been revised to greatly strengthen the property owner’s hand. Government typically overpays for land, because the court costs and delays are worse than the price differential. Then again, I can only speak to redevelopment-type takings in Massachusetts.

  233. chris-o, the presumption isn’t that the states are inherently more representative, but that there are many of them. they theoretically are in competition with each other for jobs and businesses. so if you don’t like your state’s ED (or medical marijuana) laws, you can move a few miles, and you’re set. that’s why it’s a problem when the feds stick their noses in anything and everything.

  234. Mr. Shapiro,

    The obvious ones that come to mind are actual private takings (with no public purpose attached), or takings that do not meet the “reasonableness” standard – that is, no rational nexus between the purpose and the actions being taken in the name of that purpose.

    I’m not a lawyer, so there may well be others. All of the takings I’ve ever been near would have been allowed before this decision.

  235. Eric, you could try reading my posts.

    Ah, missed your recanting.

  236. joe,

    I get the distinction you’re making. But is there any point to any restriction on government power in your view other than the government shouldn’t use its power unwisely? Will you tolerate infringement on speech as long as it’s wise infringement on speech? If not, why tolerate any takings that aren’t literally for public use without a constitutional amendment that specifically widens the government power to do so?

  237. joe, i wouldn’t expect you to have a black-and-white opinion, i was only commenting on the fact that almost none of your arguments deal with the actual morality of the decision, and only the law. why waste your time establishing the legal validity of a position you don’t even agree with? especially when most of us already agree that, like it or not, the SCOTUS has the power to do this?

  238. Zach – he likes demonstrating to himself his superiority over the “libertoids” who believe in such quaint ideas as property rights.

  239. For each elevation of individualistic urges to the status of high principle, I shall kill you.

    I’d imagine that the halls of true intellectual ability tend to frown, joe

    IOW, when I’m completely out of my depth I endeavour to just shut the hell up.

  240. i think we’re using “the feebleminded” now.

  241. Evidence of impacted intellectualism — wannabe or otherwise — is the inability to reason from a complete perspective. Hell hath no fury like that of a closeted academic confronted by common sense.


  242. From what I’ve seen, this is not really true anymore. Because of the really abusive stuff that went on during the Urban Renewal/Urban Highways days, the laws have been revised to greatly strengthen the property owner’s hand. Government typically overpays for land, because the court costs and delays are worse than the price differential. Then again, I can only speak to redevelopment-type takings in Massachusetts.
    Comment by: joe at June 23, 2005 04:53 PM

    Yeah, what we do in Massachusetts is have the politicians buy up ED land before the landowners find out about it. Then ED is declared on the land and the politicians and their flukies cash in on it and make an overinflated profit.

    Don’t deny it joe. I live in MA too.

  243. It does tend to make the feebleminded jump out of windows, but so much the better.

    Quaint.

    joe, I’m genuinely curious; what is it exactly that you aspire to? And what is your background?

  244. After the land is taken for the benefit of the public, the local public should make good use of it. Maybe have a few BBQs, light a nice fire and drink some beer. It might be a convienent place to dump some garbage when they start digging those big holes in the ground. Who knows, somegenerous indiviuals might even leave a few bundles of plywood or 2 x 4’s the public may want to use for their own good.

    I’m glad someone made this point. It’s funny, that even I, Libertarian to the bone, don’t have a problem with ED when the land goes to the government itself- read military bases, Federal Highway systems. But this isn’t, it’s going to a private land developer who greased the palms of local legislators. I’d imagine that the Riverfront Hotel is not like a KOA campground, I’d imagine that the Health Club is not going to give me free access because I’m a taxpayer(tm), and I sure as heck doubt I’ll be able to get free use of the Office spaces like I would a public park, for which my taxes have already been paid. These are all private, for profit enterprises, doors closed, just try to make it past the 280 pound security guard at the front.

    Paul

  245. But I recant what I said earlier to thoreau – this decision does not uphold the status quo, but expands ED power.

    Which is a theme of the Thomas dissent, that this battle was more or less lost a long time ago, with ED gradually getting more and more abusive.

  246. [sarcasm]

    Thank god we still have liberals on the Supreme Court who are still willing to protect the little guy against corporate interests. God only knows, if Scalia, Thomas, and Rehnquist had their ways, our lives and property would be subject to the whims of big business.

    [/sarcasm]

  247. Maybe the ED process has gotten better in some places, but the recent vogue has been for the “quick take” process, by which the government gives you what it wants to give you and immediately takes possession of your property–leaving you to then fight the government’s platoon of lawyers for more moolah if you are unhappy, but without any leverage, since you have already been evicted. And believe me, the process of “dueling assessors” is expensive.

    Moreover, as someone hinted, the ED process is sometimes used prospectively to buy land for ‘higher-purpose’ development down the road. Meaning the owner who is “ED-ed” doesn’t reap any benefit of an increased sale price due on the property he was forced to sell. If my land is so fucking valuable to the public as a ritzy hotel or yuppie condo development, shouldn’t I be realizing the increase in land value?

  248. Joe sez:

    You will not elevate the urges of the individual to the status of high principle. For each elevation of individualistic urges to the status of high principle, I shall kill you.

    I’m hazarding a guess that somewhere, deep in the recesses of your mind, this was an attempt at humor of some kind. But I don’t seem to be able to find my decoder ring, to translate what it says.

    Care to explain to the unwashed masses what you actually were trying to say with this?

  249. kmw – it was a line from “Family Guy”, apparently.

  250. Well, joe is right. Look at a thesaurus. Use contains the synonyms exploit and manipulate.

    The country is better off with Leland owning land than Indians.

  251. Happy Jack. you are mistaken. you are referring to the verb form. it is the noun form that is in question.

    not to be a grammar dork or anything…

  252. Eric, thanks for the tip.

    What with Joe giving out “virtual wedgies” a couple days ago, I wasn’t sure if he had completely lost it or not.

  253. Bob Dole is against ED. Bob Dole knows a solution for the ED problem, and will tell you all about it.

    Oh, wait, you’re all talking about eminent domain. Never mind.

  254. zach,

    From The Discovery of Freedom: Man’s Struggle Against Authority:

    Twenty years ago the Dukhagini in the Dinaric Alps were living in the same obedience to their Law of Lek. I tried for hours to convince some of them that a man can own a house.

    A dangerously radical woman of the village was demanding a house. She had helped her husband build it; now she was a childless widow, but she wanted to keep that house. It was an ordinary house; a small, stone-walled, stone-roofed hovel, without floor, window, or chmney.

    Obstinately anti-social, she doggedly repeated, “With these hands, my hands, I built up the walls. I laid the roof-stones with my hands. It is my house. I want my house.”

    The villagers said, “It is a madness. A spirit of the rocks, not human, has entered into her.”

    They were intelligent. My plea for the woman astounded them, but upon reflection they produced most of the sound arguments for communism: economic equality, economic security, social order.

    I said that in America a man owns a house. They could not believe it; they admired America. They had heard of its marvels; during the recent world war they had seen with their eyes the airplanes from that fabulous land.

    They questioned me shrewdly. I staggered myself by mentioning taxes; I had to admit that an American pays the tribe for possession of a house. This seemed to concede that the American tribe does own the house. I was routed; their high opinion of my country was resotred.

    by Rose Wilder Lane, 1943

  255. And believe me, the process of “dueling assessors” is expensive.

    And, I’m guessing, if they’re anything like the trial lawyers, psychologists, teachers, consultants, doctors, insurers, and every other profession under the Sun that infest power lobbying, either already heavily into DC to trying to get there.

    Oh, and that would be power over the “public good,” which is still as arbitrary a term as “we’re from Washington and we’re here to help” (a baffling concept for the subjectivists and deconstructionists present.)

    Make-work-by-government is massively profitable, which both raises the need to big-picture this discussion as well as reform the lobby process…which stands about as much a chance as reforming campaign finance or limiting terms.

    The Constitution is indeed dead. But as trendy as it is to blame DC, it’s us who failed.

  256. Ape- I know. But if use = purpose, what’s to stop SCOTUS from deciding noun = verb. 🙂

  257. The property is used to achieve the public purpose.

    joe, this formula does not accomplish your goal of equating “public use” with “public purpose.” Public use is a much more restrictive term.

    I pay taxes on my house. I don’t think anyone would say that me living in my house is a “public use” of my property. I also pay taxes on my house, which is a public purpose. Here we have a parcel which is serving a public purpose even though there is no public use.

    Say Bill Gates wants to buy up the entire shoreline of some lake, part of which is held by a non-profit organization that refuses to sell to him, and gets a government to condemn the non-profit parcel. There will be no public use of that parcel, but his project will advance the public purpose of squeezing tax revenue from that parcel, because he will pay taxes on it when the non-profit did not.

    Words have meanings. Precedent be damned.

  258. Somewhere the ghost of Henry George is gloating.

  259. So, if a medical marijuana dispensary was taxed, that would generate more revenue for the local government than a DEA field office.

    I smell an opportunity to turn this ruling to good!

    All in favor say aye?

    Aye!

  260. I can’t think of any comment I could make that truly expresses what I’m thinking and feeling right now that wouldn’t get the FBI knocking on my door.

    I just regret that I sold my AR-15 >:(

  261. I for one support the ruling and I think the first properties that need siezing are the homes of the 5 majority justices. Im sure building a McDonalds or Wendies where their homes use to be would generate more in taxes than they were paying while also emplying more people.

  262. They give property rights more protection in third world countries than they do here. This wouldn’t happen in places like Pakistan or Turkey. What a crazy decision.

  263. joe, one reason that people don’t like bureacrats is their attitude. In all your comments about eminent domain, I’ve never once seen you show any compassion, any appreciation for the fact than an “eminent domain taking” often involves kicking someone out of their fucking home (did I do that right? I don’t know html)

    Anyway, kicking someone out of their home, even if you pay them, is a very big deal. If ED happens all the time in a particular city, then it’s probably being abused.

  264. Because of the really abusive stuff that went on during the Urban Renewal/Urban Highways days, the laws have been revised to greatly strengthen the property owner’s hand. Government typically overpays for land, because the court costs and delays are worse than the price differential.

    Overpays? How do you overpay for something that isn’t even for sale?

    I assume that you mean relative to other comparable properties that are not in the way of this development. The value of property is usually determined by the market, a buyer buying from a willing seller. Value is obviously very subjective, but I’ve got a sneaky suspicion that the sellers/victims have numbers in mind that will far exceed their “just compensation”.

    On another note, are we supposed to believe there is no other place to put a hotel, health club and offices? Guess those alternatives weren’t part of the coucil approved plan.

    Legal, constitutional, whatever… it just ain’t right.

  265. “The Left’s concern for the ‘little’ guy is easily trumped by their desire to conserve and expand government powers to promote social engineering. I think eminent domain is one of those powers. So while Leftists may privately cringe at who benefits and who’s hurt by this ruling, they’ll ultimately accept the result.”

    You have nailed it, MJ, in such a calm tone that it almost seems like an understatement, but actually it’s just perfectly correct.

  266. I just want to chime in and say this is the worst decision the Supreme Court has come up with since Dred Scott. If a government doesn’t secure property rights, exactly what the f*ck does it do??? If government has made it’s number one priority increasing it’s own power by increasing tax revenue, is it even legitimate??

  267. If a government doesn’t secure property rights, exactly what the f*ck does it do???

    Serve the interests of a select business elite (just the ones who fork over enough bribes) and toss red meat to the masses to get re-elected.

    Next question?

  268. It was a rhetorical question.

  269. And yet, still, he has an answer! That guy oughta be a doctor of something!

  270. It’s refreshing to see a post get almost 300 (soon to be 300+) that doesn’t invlove drugs, wacky conspiracy theories, religion bashing, Bush or flirting with the ladies.

    Sadly, it’s on a depressing subject.

  271. Serve the interests of a select business elite (just the ones who fork over enough bribes) and toss red meat to the masses to get re-elected. Next question?

    Ahhhhh, spoken like a veteran Beltway denizen. And he hasn’t even moved here yet! 😉

  272. the government can take your car without having to prove you guilty of a crime?

    It is now far, far worse than that, since it seems that now, as Great Ape has pointed out, public benefit is akin to public use. I see no reason why they couldn’t claim that because your car burns too much gas they are going to take it away and you will have to replace it with one that uses less gas and produces less polution.

    If that doesn’t bother you, it gets worse, because the case just decided would be more similar to the government saying that your Prius or Insight would be better used by another person who has a longer commute and therefore you must give it up and drive his ’79 Volare because the air will be cleaner and it’s “for the public” and lets not forget the children. Worse yet, the jamoke driving your car totals it on the third day and gets a Suburban.

  273. Joe properly interpreted.

    Yes, Julian, you’re the only sane one.

    A statement of fact.

    All of the history, precendents, and rationales cited in the decision are the ravings of paranoid schizophrenics.

    As decided in the Jones vs Jones case an ability to read simple straight forward words and text and get their meaning is denied Supreme Court Justices. What is required is strict adherence to judicial inventions which being explicated being expliated in tthe most of tuse misleading and confusing language will be easily understood by the most august of the Court.

    This isn’t about a legitimate difference in interpretation – it’s about the four justices who ruled for the outcome you agree with being mentally sound, while the majority are all suffering from brain lesions.

    Unwarranted conclusiion inferrred from unwarranted assumption due to the fact that brain when used in such cases obviously means without a brain. With no brain there can be no lesions. And there for mental soundnes is not in questiion. However mental competence is. For without a brain only the most august of justices may come to the proper conclusion. Contrary to facts and plain language.

    There for joe is overruled. Denied cert. and remanded to the lowest possible court. For possible incarceration at a date to be named later and on further review.

    Sigh. – I know how ya feel. They tell ya it is about limited government and it gets more unlimited all the time. Limited to what? By what?

    Stare decisis – it has been decided – government will grow and the citizen will shrink.

  274. ChrisO, the Quick Take process has its problems. And there’s a lot to the argument that people who have their property taken should get “overpaid” to capture the excess value that’s created in the area.

    fyodor, the world we live in would not have been possible without the application of eminent domain to the new realities created by the industrial revolution. The decisions expanding the power to include takings for private development were necessary applications of the princples behind the Takings Clause to new circumstances for which the correct application of the text was novel.

    Which is where I get to you, zach. It matters that this is a reasonable, largely correct decision, based on a line of legitimate precedents, because the problem we actually have to deal with is a great deal more complicated than the boring “creeping liberal judicial activism” narrative that is being assigned here.

  275. And it wasn’t a line from Family Guy. It was gaius marius speaking in the voice of Stewie from Family Guy.

  276. Steve meant to say:

    joe, one reason that people don’t like bureacrats is their attitude. In all your comments about eminent domain, I’ve never once seen you show any compassion, any appreciation for the fact than an “eminent domain taking” often involves kicking someone out of their fucking home (did I do that right? I don’t know html)

    I know html – Simon

  277. RC, the “use” in question, by the government, isn’t the ultimate land use that gets constructed and operated on the taken land.

    The use, the public use, to which the land is put, is the redevelopment itself. The assemblange of land, the demolition, the re-parcelization, whatever cleanup and site prep goes on, the sale of the land to the developer, with whatever conditions are placed on it.

    THAT process, not the construction and operation of the Gap that gets built there, is the public use. What makes this a public use is not that there are government employees or infrastructure on it, but that the government is using this land in this way not to provide a public drinking supply, or for the conveyance of automobiles, but for a different public purpose – the elimination of blighted conditions, the provision of adequate public space and roadways in an area, or (in this case) the economic benefits.

    Now it’s in that last area, how to define what is a public purpose, that the real conversation is happening. And that’s an incredibly important, difficult nut to crack. We need all the smart people, from all the differen perspectives, to help out with it. Meanwhile, you libertoids, and Thomas, are just out in Never Neverland, wanking away about entire texbooks full of sound legal decisions that led in an inevitable direction being thrown out the window.

  278. Spooky Thoughts:

    1)We’re constantly told sins of our fathers continue to supress African Americans. Such so, “African-American” neighborhoods are often more depressed than white ones. So, now we have a ruling that enables a government–such as Philadelphia–to take even MORE from the repressed masses.

    2)Didn’t the “final solution” involve stripping citizens of their property for the “greater good?”

    Just my 2c worth.

  279. Steve,

    Boo fuckity hoo. How much “compassion” does your typical Reason commenter show towards old people living on their Social Security? Poor people living in cities with no economy left?

    I know that this is a political issue that has to do with people’s lives and livelihoods. You know what? They all do.

  280. joe,

    Public utilities (the world we live in argument) I’m down with. The rights of way need to be either open – like roads. Or limited (electric, gas, cable, sewer etc.) to regulated monopolies – connection to the system by any one proximate to the right of way being a key factor.

    Me I’m with Thomas – wrong is wrong. Whenever it was wrongly decided.

    Does the church tell the sinner – if you maintain the sin long enough you need not give it up? What ever happened to the quaint notion of right and wrong?

  281. AMP, your musings about how “fair market value” isn’t really what someone’s property is worth, MAN, are about as interesting as noting that nothing is really solid cuz most of an atom is empty space. Go sell that shtick to the guys with the Hendrix poster.

    And there are plenty of other places to build a hotel and some condos. There’s just no other place to carry out a redevelopment plan for Ft. Trumbell. See my 9:02 post to RC.

  282. M. Simon,

    “What ever happened to the quaint notion of right and wrong?” It didn’t go anywhere.

    I’m right, and you’re wrong.

  283. joe,

    Since there is no limit to the economic benefits government can provide then of course the State must control who disposes property and how it is disposed.

    The State is the final judge of who the worthy owners are.

    There are the nobel aristocrats and then there is trailer trash. White trash. Black trash. Poor trash. And just plain trashed people. They can be run ought of town.

    It may be precident. It is still ugly.

    But it is how we do ethnic cleansing in America. One neighborhood at a time.

  284. Joe says:

    I’m right and you are wrong.

    The correct interpretation of which is according to a majority of the Court is that Simon wins on points. Because joe was obviously not using the simple meaning of the words. That would be an incorrect application. You see in a case previosly decided right means incorrect and wrong means that the person indcated has the clearest understanding of the situation. Based on previous decisions joe is incorrect and Simon has clear understanding.

    See what happens when words have no meaning? The result is anything you could imagine. Which means of course that far from being decided the law is very unsettled.

  285. You guys don’t understand joe. Kelo isn’t an intellectual exercise for him. If it had been decided the way I wanted it to go, it would have threatened his livelihood. joe has previously mentioned that he is a planning bureaucrat for a small New England city, much like New London. If eminent domain powers were curtailed, local governments might not have to reduce such swarms of officers, sent to harass our people and eat out their substance.

    In other words,

    joe ——————> eminent domain reform as
    Teachers’ Unions —–> school choice programs.

    One of the worst consequences of Kelo is that it dispels my fantasy picture of joe, standing near an off-ramp to the Turnpike, holding a sign that reads Will Zone For Food.

    Kevin

  286. ….might not have…. should have been might have, of course.

    Kevin

  287. Explain to me again joe why sticking with a wrongly decided position adds stability to the law.

  288. The use, the public use, to which the land is put, is the redevelopment itself. The assemblange of land, the demolition, the re-parcelization, whatever cleanup and site prep goes on, the sale of the land to the developer, with whatever conditions are placed on it.

    If this is the definition of “use”, then why are new cars that have a couple test-drive miles on them not sold at used car prices?

    This definition also does nothing to address the fact that the govt is forcefully executing a transfer of propoerty between private hands, which is why this decision is so preposterous.

  289. Perhaps if people like you were interested, and able, to argue about proposals using language and doctrines that are applicable to, at a minimum, the late 20th century, there would be better outcomes.

    Ah yes, the old “libertarianism is outdated” meme. Silly libertarians, thinking that ideas evolved in the 18th century will be applicable in the 21st. Don’t they know that we’ve evolved beyond that, and their ideas were conclusively disproven by the 20th century? Holding on to outmoded superstitions like “rights” and “limited government” and “rule of law” and “enumerated powers.” Why can’t they just grow up, and join all of us enlightened folk in the real world?

    How much “compassion” does your typical Reason commenter show towards old people living on their Social Security? Poor people living in cities with no economy left?

    Y’know, this is an old schtick. Consider, joe, that we think that our positions are actually more likely to benefit the very people that you’re talking about. Maybe you think we’re wrong, and that our privitization plans for Social Security will lead to every old woman in the nation living in unheated basements eating cat food, but we think that it will make them better off. You may disagree, but it doesn’t make us heartless. How would you feel if we started saying, “Joe doesn’t care about old women, because he doesn’t support privitization”? You’d think we were crazy, and you’d be right. Don’t accuse us of not caring; we care, but we have different ideas of how to accomplish the same goals.

    But of course that doesn’t matter. It’s easier to just say that libertarians and conservatives don’t care about the poor, because they oppose your methods of helping them.

  290. Aye, Cap’n thoreau!

    Hey and what about this:

    The Home Desecration Amendment:

    A homeowner shall have the power to prohibit the coercive appropriation of their property.

    Because isn’t a home more important than a fucking piece of cloth?

  291. holy shit 298 comments? 299 now…who’s taking 300?

  292. I’m all about fairness, so here’s an idea: to eliminate blight and accomplish Joe’s “public use” bit, why don’t they let the property owners keep their deed to the land, tear down the blighted bits, perform demolition, clean-up, etc., then hand the land back to the original owners? If they want to sell to real estate developers then, fine, otherwise, oh well.
    Now, granted, the local party hacks won’t make any money, but then they won’t have to buy the property, either, and the cost of “de-blighting” is going to happen regardless.
    Now, wouldn’t that make everyone happy?

  293. Hey, am I #300? Did I win something? Do I get to tear down joe’s house and build a giant U-boat museum in its place?

  294. I get it joe,

    The only property right you are interested in is the one you think you have vested in your job.

    I see why resettling the law might be so unsettling for you.

  295. That comment about “those heartless libertarians” reminds me of a post a couple of days ago saying we were in business’s pocket when supporting Walmart’s right to do business. It has been proposed here that we could end elder poverty at 10% the cost of SS. We could provide better health care with better choice through several programs suggested avoiding much of medicare/caids cost and personal restrictions. We lament the big business handouts of private homes to sprots team owners. Decry the agro handouts that starve foriegn farmers while double taxing the customers. And we’re the heartless bastards. Half the people here would renounce their citizenship if they could become a “client” of America Inc. because of the fact we believe, with mountains of evidence, that it would help the little guys of the world by delegitemizing coersive force taken against their attempts at happiness in this life.

  296. joe, the trouble is not that words don’t mean what I want them to, but that those meanings are changed by people who seek to achieve a particular outcome. As words become dependent upon context for meaning they are made less useful as tools for people to communicate and coordinate their activity.

    Courts changing the meanings of words also change the contract upon which this state is founded. The contract explicitly describes the process by which it may be amended. Of course, one might choose to interpret that to suit the whims of the moment, too. At some point the contract, under common-law principles, becomes null or unenforceable by its indeterminate nature.

    Either A: We’ve found a back-door route to anarchy,
    or B: The French lanugage police may have a bit of a good idea.

  297. I can’t belive i read 299 comments. Goddamn i need a life.

  298. “…even I, Libertarian to the bone, don’t have a problem with ED when the land goes to the government itself- read military bases, Federal Highway systems.”

    Not to just pick on Paul here but this seems like a common sentiment around here. To be blunt, if the government is stealing my property (and that’s what ED is….plain and simple) I could care fucking less if they’re gonna build a military base or Wal-mart there. My property ain’t mine anymore. So I guess I just don’t get all the gnashing of teeth over this decision. They’ve simply expanded the current definition of what is “legal” theft. Just paving the road to serfdom one court case at a time, I suppose.

  299. matt:

    In my heart I’m a “sell the roads” libertarian, so I’ve got your back. There is some merit in arguing for the liberties which our Federal and State constitutions are supposed to protect, even though we might wish they were more extensive.

    Kevin

  300. Now it’s in that last area, how to define what is a public purpose, that the real conversation is happening. And that’s an incredibly important, difficult nut to crack. We need all the smart people, from all the differen perspectives, to help out with it. Meanwhile, you libertoids, and Thomas, are just out in Never Neverland, wanking away about entire texbooks full of sound legal decisions that led in an inevitable direction being thrown out the window.

    Whatever, Joe. I’m sure, as a fan of separation of church and state, I’m also missing out on a vital role in how to properly work out how exactly federal funding of faith-based charities should be managed.

    News flash: You and a random troll or two are the only people in this discussion who want this. I’m not even sure we could get a majority here to support the use of eminent domain for genuinely public uses. I’m distrustful of it at best, but I can just buy the logic. Why on earth would anyone with a brain want to give that much more support to the “well, if the government’s involved, it’s a public purpose” doctrine if they completely oppose it?

  301. the world we live in would not have been possible without the application of eminent domain to the new realities created by the industrial revolution.

    Nor would it have been possible, at least in America, without slavery and the slaughter of Native American tribes. The world we live in would be distinctly different in some way without any one or all of those things in our history.

    So, obviously, opposing any of these things now is just hypocritical, fringe foolishness.

  302. a while back joe said:
    “We either allow upstream properties to be “taken,” or we don’t get the mills.”

    No. Just as in Kelo, there are (were) other options–those based on peaceful, voluntary means. Persuasion and trade, for example.

  303. In the name of better public use of land a strip mall with a pharmacy, pizza place, video store, and a head shop would be a good replacement for the Supreme Court building.

  304. I was out of the newsloop yesterday, and was shocked and depressed to read the Washington Post this morning..

    http://www.washingtonpost.com/wp-dyn/content/article/2005/06/23/AR2005062301786.html

    A truly disgusting selection:

    “D.C. Council member Jack Evans (D-Ward 2) said that the ruling should give the city apowerful hand during negotiations with the 33 property owners at the ballpark site.

    “It puts to rest the issue of whether the city has legal rights to take the properties,” Evans said. “This strengthens our hand to get control of the property. Hopefully, it will encourage owners to settle with the District and accept a fair price and move on.””

    Isn’t this something a Nazi would say? “Move on?”

    Libertarianism is taking such a beating, especially recently. Soon none of us will have any rights as individuals. I am so fucking depressed.

  305. MNG,

    It’s nice to see the long term consequences of this horrible decision so quickly brought to light. It disgusts me that people can support this decision on the basis of “well, some bad stuff might happen, but it will at least allow me to do what I want.” I cannot f*cking believe that people support these “liberal” judges to protect Roe v. Wade, while having all of the rest of their civil liberties (the ones that are actually enshrined IN THE CLEAR F*CKING TEXT of the Constitution) get gutted.

    I feel so goddamn helpless right now…

  306. Here in NYC the first reaction was, “Now we’ll have no problem getting the property we need for that new basketball arena in Brooklyn” (the arena that almost nobody living in the neighborhood wants). Glad to see this decision being put to such good use already!

  307. MP:

    The Constitution might as well be printed on toilet paper at this point.

    The House just passed (again) to add a fucking flag-burning amendment. The Senate, in the past, has nixed it. However, I’ve read that the current Senate might actually bend over this time.

    The last two weeks or so have been extremely brutal. Fucking brutal.

  308. Mr. Nice Guy,
    It`s “We the People” that are bending over, not the Congress or the Senate.
    How far will we bend ? Can you grab your ankles yet?

  309. Matt, you said: “Not to just pick on Paul here but this seems like a common sentiment around here. To be blunt, if the government is stealing my property (and that’s what ED is….plain and simple) I could care fucking less if they’re gonna build a military base or Wal-mart there. My property ain’t mine anymore. So I guess I just don’t get all the gnashing of teeth over this decision. They’ve simply expanded the current definition of what is “legal” theft. Just paving the road to serfdom one court case at a time, I suppose.”

    There is a difference, it seems to me, since local governments can be voted in and out of power and can thus be held (somewhat) accountable for their actions. The same is not true for a developer, especially one that is privately held. It seems to me that this decision marks a qualitative shift in the application of ED. It is now easier to take private land, and the original land owner has virtually no means for preventing/protesting the decision.

  310. Hydroman:

    Perhaps it’s naive of me, but I believe that the majority of our leaders are enlightened enough to grasp the beautful irony of a symbol of freedom being defiled. But they are bending over anyway in fear of being voted out.

    If that’s the case, what’s worse, a lunatic or a coward?

  311. A coward is d efinitelyworse, . The coward will vote for things he knows are wrong to protect his ass. A lunatic might accidentally do some good.

  312. It’s nice to see the long term consequences of this horrible decision so quickly brought to light. It disgusts me that people can support this decision on the basis of “well, some bad stuff might happen, but it will at least allow me to do what I want.” I cannot f*cking believe that people support these “liberal” judges to protect Roe v. Wade, while having all of the rest of their civil liberties (the ones that are actually enshrined IN THE CLEAR F*CKING TEXT of the Constitution) get gutted.

    There is an essential difference between the two:

    In RvW, it was a positive decision by the courts basically tying the hands of legislatures across the nation who would seek to interfere with a person’s ownership of their body.

    In KvNL, it was a negative decision by the courts – which still allows legislatures to strengthen individual property rights, or weaken them even further. In other words, it’s an open ended decision that doesn’t create any new rules.

    Now, you can rant and rave all you want, but it is a very important difference between the two. RvW cann’t be undone without changes in the court itself. KvNL can be undone by affecting change in legislatures, moving to different areas where legislatures protect property better, etc.

    As a result, as dissappointed as I am with this decision, it is still better than having social conservatives in the courts limiting individual rights instead of throwing them back to the states. Now this might have something to do with my view of property stemming from ownership of one’s self, and then ones surroundings, and thus placing a higher value on freedom of self-ownership and individual action as opposed to placing a higher value on ownership of extraneous entities. Then again, as I’ve mentioned earlier, self-ownership is dead as well, when you consider that income tax is your ‘rent’ to the state to allow you to use your skills and sales tax is your ‘rent’ to the state to allow you to sell the product of your labor.
    Mao was correct – power does grow out of the barrel of a gun, all we really own is our lives, everything else, including our bodies and its skills are property of the state.

  313. “Mao was correct-power does grow out of the barrel of a gun”
    It`s time—-LOCK AND LOAD!!!

  314. Hmmm, Friday morning already.

    joe, still waiting for that part of the Constitution granting government the right to redistribute wealth in the private sector. Come up with it yet?

  315. 6Gun, grow up, get with the times, etc.

  316. metalgrid brought up Mao. In China, they are rioting over property takings!

    Charlie Sykes of WTMJ-AM radio brought this Globe & Mail article, from Canada, eh, to my attention. Charlie was discussing Kelo on his program this morning, and has a post about it on his blog. Several callers who own cottages on small Wisconsin lakes are worried that the decision will make it easier for localities to take their vacation homes in order to hand over the properties to developers who will build much more expensive houses. In WI, the state claims to own all the waterways, and there has been a long war between owners of properties that surround lakes and the Department of Natural Resources. The DNR is always trying to buy sites where they can put in a boat-launch and create access to the lakes for the general public, and the homeowners maneuver to keep the lakefront property private. Kelo wouldn’t change that, but the homeowners will now have to fight on a second front.

    Already some people are talking about changing state law to restrict the meaning of “public use.”

    Kevin

  317. 6Gun, grow up, get with the times, etc.

    Point taken. Shaming federalists/constructionists/constitutionalists/realists/libertarians/what-have-you’ists is how it all starts. Make the issue a political variable instead of purely rational.

  318. I know I’m late to the party, but now would be a good time to consider moving to a state with it’s own limits on ED. The FreeState project may actually end up in the most free state.

  319. Kevin:

    I gotcha. All I’m saying is that starting from the position that ED is acceptable as long as it’s for “public use” is principally no different than the decision reached in Kelo. It’s just a matter of degree.

    chinaman:

    “There is a difference, it seems to me, since local governments can be voted in and out of power and can thus be held (somewhat) accountable for their actions.”

    So kick one gang out, and then elect another one? I do understand your point, but that doesn’t make me feel any more secure in my property.

    “It seems to me that this decision marks a qualitative shift in the application of ED. It is now easier to take private land, and the original land owner has virtually no means for preventing/protesting the decision.”

    It’s a shitty decision…no doubt. But like I said, your property could already be stolen for “public use.” They’ve just expanded the definition.

  320. I wouldn’t count on New Hampshire to protect your property rights. According to IJ, “and in states like New Hampshire, there is no consistent interpretation of the law”. And also see this article, “New Hampshire, and Massachusetts — have indicated they probably will find land takings solely for economic development unconstitutional” (note the key word…probably). After the Claremont and Claremont II decisions, where the NHSC found buried in the Constitution some long forgotten education “rights”, I wouldn’t count on them to defend any private property rights.

    It was no surprise when, over lunch, one of my co-workers (whose claim to fame in the office is that he was involved in smart bomb projects for the Soviets in the early eighties) stated that “yeah, this is just like what the Soviets used to do”. sigh…

  321. Not to just pick on Paul here but this seems like a common sentiment around here. To be blunt, if the government is stealing my property (and that’s what ED is….plain and simple) I could care fucking less if they’re gonna build a military base or Wal-mart there.

    Matt,

    While I understand your sentiment, and agree emotionally, the fact is, if we’re going to be strict constructionists, the constitution DOES have a provision for Eminent Domain. You may not like it, I may not like it, I may even consider it a dangerous loophole, but it’s there. I think that Thomas’ dissent was very well said in its historical fact finding regarding just how narrowly and rarely it was supposed to be used. On that note, I think we can agree. Don’t get me wrong, I’m not waving the ED flag, I’m just of the opinion that ED is supposed to be invoked only as narrowly and cautiously as the framers intended. It’s clear that it’s been blown out of the water. Goddamned living document shit. ’nuff said.

    Paul

  322. So I guess from now on nothing I own is really mine.

    I was going to make some sort of general quiz to determine whether property you possess is actually “yours”, but, eh, it’s Friday and this thread is waaaaay too long for me to get through, much less thoroughly respond to. And I’m arriving much too late to the conversation. *sigh*

    anyone want to organize a mass vomiting on the stoop of the SC?

    No, I don’t vomit on command; but I am up for leaving a bunch of flaming bags of poop.

    Since this office complex is now officially a public use, maybe once it is constructed we, as members of the public, should go there and, uh, use it.

    By “use”, do you mean: drag our bare asses until they are clean on the new carpeting, after we fill up the brown paper bags?

    These poor folks should all paint the american flag across the outside of their houses, it’ll make a great photo when the bulldozers come rolling in.

    If they really do raze the houses, somebody should really take the time to email these people and tell them about this idea. It would be brilliant to see, if indeed the show must go on.

    Rational people need to fight this slide into hell with every weapon available. We cannot continue to stand on the sidelines flapping our gums and writing comments to this blog. We have to take back our country from these assholes who find new ways to shit in our sandbox every day.

    I wholeheartedly agree with Crushinator. This is the biggest reason I have trouble taking this blog seriously half the time. Sure, it’s a great news source. Is that it, though? I mean, for all the jabbering we do on here daily, what does it accomplish in the end? Elucidating our ideas is important, but I swear, sometimes this place is just treading water. Why bother restating what we obviously agree on most of the time? Sorry to be so nihilistic, but I feel so helpless.

    Someone mentioned that they’d like to see video of those people being thrown off of their property by the government. Now THAT is a summer roadtrip I would love to take part in. I would love to actually videotape it, and disseminate the video all across America to show it as the travesty of basic human rights that it is. People need to see this kind of thing to believe what is happening.

    Egh, I’ve only read about half the commments and I’m completely worn out. I hate it when I miss a really good thread and it gets so ridiculously long that it’s impossible to catch up.

  323. “…the fact is, if we’re going to be strict constructionists, the constitution DOES have a provision for Eminent Domain.”

    Paul:

    Well, I’m not a “strict constructionist,” although I would prefer it interpreted in that way and not as a “living document.” When it comes to matters Constitutional, I’m basically a Spoonerite:

    http://www.fourmilab.ch/etexts/www/NoTreason/NoTreason.html

    The Constitution may slow the growth of rights violations by the government, but it won’t stop them. And it looks like it’s only going to get worse before it gets better.

  324. Eminent Domain is one of the reasons you can get electricity delivered to your home. So it does have some uses outside roads and government buildings.

    The idea is rights of way. Which have been part of the common law for a very long time.

  325. MP, don’t think that the wheels aren’t turning up here in NH about clarifying the wording to Article 12 in the Bill of Rights in NH’s constitution and a few other things as well.

  326. “If it had been decided the way I wanted it to go, it would have threatened his livelihood.”

    Bwah ha ha ha ha ha ha ha ha! Yep, we’d all just close up shop. There wouldn’t be any city planning anymore. Because it’s really, really hard to find work to do as it is.

    You shouldn’t spout off like that about things you have such a poor understanding of.

    6Gun, the government doesn’t have the right to take properties for the purpose of redistribution. It has the right to take properties for the purpose of carrying out redevelopment plans.

  327. joe:

    You say work, I say leeching off the taxpayers. Go read some James M. Buchanan, why dontcha.

    BTW, joe, posting from your own computer, on your own ISP, on your own time, I hope? Wouldn’t want to convert any city resources away from “public use”, now, would we?

    Kevin

  328. You’d prefer I go out for a smoking break?

  329. You bet, if you can still find somplace that you are allowed to light up. I’m all in favor of greater inefficiency in non-essential government services. The more goldbricking, the less damage you can do. 🙂

    Kevin

  330. joe:
    the government doesn’t have the right to take properties for the purpose of redistribution. It has the right to take properties for the purpose of carrying out redevelopment plans.

    Negatory. It CAN take the property for redistribution, as long as it has a plan claiming that the redistribution best fits the public purpose. It’s fascism at its best. The court writes:

    The Court declines to second-guess the wisdom of the means the city has selected to effectuate its plan. Berman, 348 U.S., at 26. Pp. 13?20.

    Meaning, that not only can the local authorities take the land, but the supreme court WILL NOT make judgements of the means, effectiveness, logic or end result of the plan. Basically: show us a plan, and as long as we see that there is a plan… ANY PLAN, we will not judge nor will we evaluate the plan. All we need to see, is a plan.

    Further meaning that even though the constitution has a provision for Eminent Domain, there is little to no basis for which a property owner can cchallenge a taking, as long as the takers have a plan.

    As I believe Justice Thomas noted, it would be like the Supreme Court refusing to judge the means or validity of a search warrant- they just want to see a search warrant. The dissenting justices (and all thinking people, thank you very much) know that these very things ARE the domain of the judiciary- not the local legislature. Otherwise, the provisions have no discernable meaning.

    Paul

  331. 6Gun, the government doesn’t have the right to take properties for the purpose of redistribution. It has the right to take properties for the purpose of carrying out redevelopment plans.

    Is that so? By what legal mechanism do you (we) guarantee this latest assertion?

  332. So, who’s going to move to New London and get the city bureaus who started this crap thrown out of office? I have seen lots of commenting, but no real solutions to doing anything to actually counter the outcome (although I really do like the “painting the flag on the side of the house and inviting CNN for the bulldozing”, the “owner sitting on the front porch with a loaded shotgun” and the “barfing on the SC steps” suggestions. I’m thinking along the lines of writing New London city officials and telling them we’ll boycott (not that any of us would support the economy of a town that would do that to its people anyway…)…

  333. Paul, I (and the other planners in my office that I’ve spoken too) agree that the statement you quote about applying deference to local plans leaves the door way too open. My boss used the phrase “A plan, even one on the back of a napkin.”

    IMHO, that’s the problem that needs to be solved.

    6Gun, I take that back. As the Hawaii case makes clear, the government can take land for the purpose of redistributing it, if it can show a compelling state interest to do so. BTW, that decision, as well as the Kelo decision, are backed up by a couple centuries of consistent decisions by the court that provide clear guidance to lower courts and the other branches.

  334. Lyle Denniston at SCOTUSblog notes that a line of reasoning in Justice Kennedy’s concurring opinion in Keloappears to have put city governments on notice that they can go too far in using the added power that the Court seems to have given them to seize land for economic development…..Since his vote was necessary for the city of New London to prevail, his separate opinion in some sense may be said to be controlling.

    That may mean that a mere “fig leaf” of a plan could still be challenged on a “rational basis review.”

    Kevin

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