The Post-Kelo Backlash Continues

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Alabama has just outlawed private-to-private eminent domain transfers, except in "blighted" areas.

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  1. It’s that “exception” that’s the killer. Some backlash…

  2. Can someone define for me a “blighted” area?

    Or will I know one when I see one?

  3. Wouldn’t the term “backlash” suggest an action that is somehow in opposition to the thing being backlashed against?

    “Kelo” said that the states should set their own standards for the use of eminent domain. Alabama’s response was to set standards for the use of eminent domain.

    Good for Alabama.

  4. Russ R,

    The working definition of blight is “galloping vacancy.” A degree of vacancy and abandonment in an area that is sufficienty pervuasive as to result in, by itself and without external economic pressures, further abandonment and vacancy within and adjacent to the district.

  5. The Alabama Legislature is actually in recess but the Governor called a special session to deal with the budget. They passed this as a “get something on the books” measure. My rep was on the radio monday(?) stating that they’ll revisit ED with a more strongly worded AL Constitutional amendment when they reconvene in Sep(?).

  6. Blighted? Pretty much covers the whole state, doesn’t it?

    Ok, OK, Lyrnyd. I know. Southern man don’t need me ’round either.

  7. According to the New York Times and the state of New York, Times Square was “blighted” and could therefore be seized to build a new building for the newspaper. Somehow I’m doubting that land in one of the most heavily trafficked areas of a city with astronomical land values was having a big problem with buildings being abandoned and left vacant.

  8. Blighted? Pretty much covers the whole state, doesn’t it?

    Thought provoking. Could then surrounding states sieze the blighted state and divy it up for the greater good of the public?

    Or maybe the federal government would sieze it and then transfer it to a stateless government! Oh yeah, the US isn’t into rebuilding states! 🙂

  9. joe

    Wouldn’t the term “backlash” suggest an action that is somehow in opposition to the thing being backlashed against?
    “Kelo” said that the states should set their own standards for the use of eminent domain. Alabama’s response was to set standards for the use of eminent domain.

    Just last year they placed Amendment 3 on the ballot and it passed. The bad thing was, the general public didn’t know what the hell it meant. Here was the wording:

    “to authorize a county commission of any county or any municipality therein to perform certain actions for the purpose of economic and industrial development in the county”

    If anyone had read the actual amendment back then, they would have seen that the local government was given the right to take anything for whatever reason they saw fit. I would caution that Alabamians judge politicians by their actions and not their words, I’m sure they have left themselve plenty of wiggle room.

  10. Why all this fury over ED? It’s much better for government to seize your property and pay you something for it than the other increasingly popular statist tactic–calling your property a wetland or endangered species habitat.

  11. Amy,

    That was pretty silly. Of course, there’s nothing to stop the New York Assembly from crafting a tighter definition of “blighted.”

  12. Alabama is merely recognizing the wrongheaded nature of the Kelo decision.

  13. JMoore,

    Well, the government can never truly give you market value in the case of ED.

  14. I know, but it’s better than nothing. Not that I favor its use, especially for private-private transfers.

  15. That, BTW, was a minor threadjack meant to draw attention to the excellent article on the Endangered Species Act.

    Apologies for the interruption… now back to our regularly scheduled bitching… 🙂

  16. Apologies for the interruption… now back to our regularly scheduled bitching… 🙂

    Come now, a little threadjacking could never derail the standard bitching.

  17. “Alabama is merely recognizing the wrongheaded nature of the Kelo decision…” by doing exactly what Kelo authorizes, in the manner it recommends.

  18. Blighted is anything that the government’s cronies call “blighted”.

    If there are black people or hispanics living there, they don’t even need their cronies to tell them it’s blighted.

  19. The Oregon house is working on a similar bill.

    It’s a backlash because it is spurred by people who were unhappy to learn that the court would essentially strip the words “public use” from the constitution. They responded in the only way they could; if you’re fine with that result, great. But I do wonder how you can square this with say, Roe? If you believe Roe was wrongly decided, then of course this question is irrelevant.

    Imagine a state says, we want to set our own standards for the use of eminent domain laws to allow transfer to private parties when we think it serves a public purpose – after all it should be a local policy matter. Someone else claims it’s a violation of the plain meaning of the “public use” clause of the Constitution. The court finds that, no it’s not – states are allowed to read “public use” in a broad enough way that they are not barred from such activities and may set their own standards.

    Now, the same state wants to set its own standards for abortion. Someone claims it’s a violation of, well… not some specific clause (as in Kelo)… but I’m sure it’s in there somewhere. And they court says, yep, clearly this isn’t a matter for local policy making because there’s a penumbra in here that says so – you are barred from setting your own standards for abortion.

    How can the clear text of the constitution exert virtually zero restraint on state action, but this is ok because the states can simply set their own standards, while some vague notion or penumbra can essentially exert an all out bar on state action?

    And just for the record, I don’t believe abortion should be illegal.

  20. “How can the clear text of the constitution exert virtually zero restraint on state action…”

    Easily, Brian – the Constitution contains no such clear language setting standards for the use of eminent domain, other than ruling out obviously-corrupt private takings. If the founders had wanted to limit the situations in which the states could condemn land, they would have done so.

    This “plain language” was so plain that Supreme Courts have been reading it the other way since the founding of the country.

  21. So you agree that the term is essentially meaningless? And if not, let’s hear an example of where “public use” could ever turn a decision in a federal court. You’re big on practical results and not all this theory stuff – courts don’t generally substitute their decisions for local policy makers where the locals have authority; so as long as the locals can find some (any!) pretext to call it “public purpose” the courts are now pretty much bound to accept that. So again, how does “public use” have any real (practical) meaning? I mean seriously, why is that phrase in there if it means basically nothing.

    And, no matter how clear or unclear the guidance is for Kelo, it?s far clearer than Roe, is it not?

  22. If the founders had wanted to limit the situations in which the states could condemn land, they would have done so.

    And if they had wanted to set standards for when a pregnancy could be terminated they could have.

    [No standards] other than ruling out obviously-corrupt private takings

    Which is why the constitution used the term “corrupt private takings” right? Hmmmm perhaps if that’s all they meant, no corrupt private takings, they could have bothered to say so.

  23. Alabama is merely recognizing the wrongheaded nature of the Kelo decision…” by doing exactly what Kelo authorizes, in the manner it recommends.

    Authorizing? Why couldn’t this law have been passed before Kelo?

  24. ok joe,

    thanks for the lesson on “blight”. I’ll admit, it’s not a term I’ve often had to deal with.

    I somehow feel that the labeling of an area as “blighted” is rarely confined to the narrow description you’ve given.

    Now, if “galloping vacancy” constitutes blight (ie, an area is SO bad that people aren’t even willing to inhabit it, thereby returning the land to “the commons”) I can accept that the government is justified in reclaiming the land, BUT, only if property taxes are also in arrears.

    That’s about the edge of my envelope on property rights.

  25. “I too suffer from ED.”
    — Bob Dole

  26. That should have more correctly read: “If they had wanted to limit the situations in which the states could outlaw abortion, they would have done so.”

    So if leaving one area to the states is the result of a lack of clear standard setting by the founding fathers, even with the words “public use”, how is abortion not left to the states?

  27. joe,

    You can defend Kelo all you want to based on its twisted federalist logic, nevertheless it remains a wrongly made decision.

    …the Constitution contains no such clear language setting standards for the use of eminent domain…

    It uses the term “public use” which was indeed a clearly articulated concept in 1791.

    If the founders had wanted to limit the situations in which the states could condemn land, they would have done so.

    Your legal ignorance just astounds me. The Fifth Amendment didn’t originally apply to the states you moron. Its incorporated via the 14th Amendment. The Fifth Amendment’s provisions originally only applied to the Federal Government, and the understanding of those provisions in 1791 was crystal clear.

    This “plain language” was so plain that Supreme Courts have been reading it the other way since the founding of the country.

    No, again you know nothing of the jurisprudence in this area; the concept of “public purpose” for something besides roads, bridges, etc. only comes about in the 20th century (and generally during the middle part of that century – that’s why almost all the jurisprudence cited by the majority comes from, you guessed it, the 1950s onward). If there was indeed such a plethora of 19th century case law, the Court would have cited to it, but it didn’t. If you had read Kelo you’d know this. Sorry, you lose (again).

  28. Brian Courts,

    joe’s judicial philosophy is this: if I like it, it must be in the Constitution, if not, well it isn’t. There really is no point in having such a document in his opinion.

  29. Brian Courts,

    Well, again, the Fifth Amendment wasn’t originally written for the states, so its a rather stupid idea to make such a demand on its language.

  30. joe: “”Kelo” said that the states should set their own standards for the use of eminent domain. ”

    No it doesn’t. It states that the reason New London gave was indeed constitutional, *not* that states should set their own standards. The Supreme Court set the standard, and that standard happens to be extremely broad, so broad as to be meaningless, but still it was the Court that approved the standard. “Kelo” did *not* give free reign for states to define the limits of our constitution right of protection from eminent domain except for “public use”.

    The court simply agreed with and approved New London’s argument that their reasons for the taking could fall under “public use”. There is a huge difference between that decision and giving states the responsibility to define it themselves.

    nmg

  31. “Kelo” said that the states should set their own standards for the use of eminent domain.

    Yes, Joe, that is what was *recommended.* What was *allowed*, however, was for those standards (of what’s considered “public use”) to be as broad as merely hoping that a new private owner would be better than the old one, without any fear whatsoever of running afoul of the Constitution.

    Doing “exactly what Kelo authorizes” is not at all the same as doing “exactly what Kelo recommends.” Kelo *authorizes* my house being leveled, if L.A. City Hall decides a new owner would be in the better interests of the public. Kelo *recommends* that California define “public use” a little clearer, perhaps even in such a way to protect my house (which I actually don’t own, but you follow me) from getting replaced by a mini-WalMart.

    This is not a difficult distinction to understand, is it?

  32. Matt Welch,

    Well, they can take it so long as the action is in the majority’s words “not irrational.”

  33. Well, again, the Fifth Amendment wasn’t originally written for the states, so its a rather stupid idea to make such a demand on its language.

    Hakluyt,

    Yes, that’s a good point. I meant the whole thing rather more rhetorically anyway, but let’s substitute congress for intent purposes and the states as only incorporated later by the 14th, to the extent they are. (Are they’re any provisions of the Bill of Rights left unincorporated to the 14th as applies to the states?)

  34. Brian Courts,

    Well, Second Amendment remains so (though at least one circuit has recognized its incorporation – of course most states guarantee the individual right to bear and only one states it doesn’t exist – Massachusetts).

    Anyway, given the limited nature of the federal government at the time its not surprising that “public use” wasn’t problematic. joe essentially argues that the term is completely impenetrable, and that it is therefore virtually meaningless, which is a load of hogwash.

  35. Brian Courts,

    Note that in Boston I have been told that you have to get a permit to carry mace.

  36. Eh. There are so many examples of the abuse of the term “blighted” that saying it’s an exception is clearly meaningless. The other day I drove by a single small business in my city that’s being EDed for a hotel, and it certainly doesn’t fit the definition of “blighted.” (and I believe my state is one that has the “blight” requirement)

  37. A day after the Kelo decision was delivered, Freestar Media LLC submitted a proposal in the town of Weare, New Hampshire where majority opinion writer, Justice Souter, owns a farm house. They requested that the town board condemn the land and give it to them, as private developers, who promise to construct the Lost Liberty Hotel in its place. Their tax revenue would no doubt be higher than the reported $2,500 that Justice Souter paid in property taxes last year. It would create employment and attract tourism. The town has a website, and an economic development committee, which has identified its two main goals: 1) Encourage the formation of new businesses, and 2) Promote tourism. However, contrary to its stated goals and the legally sanctioned purpose of economic development, the town?s board turned down the proposal.

    So much for poetic justice. Justice Souter?s influence in his community shielded him from his own ruling. No other rational justification can be found.

    Thankfully, the legislative branch is now busy at work attempting to shield private property rights from the Supreme Court ruling. It seems that the two may have switched roles, with the House defending the Constitution, and the Supreme Court writing new laws.

    I thought I saw Alice the other day! Or maybe it was Justice Souter ?skipping in Wonderland, immune to and above the laws he passes.

  38. Brian, the Constitution is, indeed, quite clear on limits to takings, much clearer than on abortion. My point is that the limits imposed at the federal level, while clear, are not very broad. A clearly private taking, done just to enrich a friend of a high official, would be illegal (not a public purpose in sight). As would a policy of taking property owned by libertarians (an invalid public purpose). The authors of the Constitution were big on states’ rights, and they recognized the states’ right to weild sovereign powers, including the right to decide when the use of eminent domain powers was desireable.

    “perhaps if that’s all they meant, no corrupt private takings, they could have bothered to say so” They did – by including the word PUBLIC.

  39. Russ R, “I somehow feel that the labeling of an area as “blighted” is rarely confined to the narrow description you’ve given.”

    Right you are. This authority has often been abused, and the states would be wise to promulgate limits.

  40. Sorry Hack, but you need to do more reading.

    “It uses the term “public use” which was indeed a clearly articulated concept in 1791.” A concept which included the right to condemn land for the construction of private roads, to be owned by private parties, and closed to public use at their discretion, from the beginning of the Republic, and before.

    Said precedent was then used to justify the condemnation of land for privately owned railroads, including those that only served private mines and were themselves not open to the public.

    But as you say, I clearly know nothing of the law or history in this area. Ass.

  41. OK, nmg, you got me – the Supreme Court did indeed establish, or rather, re-articulate, a standard – to wit, the taking must be done for a public purpose.

    However, they left it to the states to determine which public purposes the eminent domain power could be invoked for. Connecticut could thus define economic development as a satisfactory public purpose, and Alabama could declare it to be unsatisfactory.

    I conflated the two concepts in the post you flagged – nice catch.

  42. “joe essentially argues that the term is completely impenetrable”

    No, Hack, just the opposite – the meaning of the term is quite clear. You disagree with the definition the court provided, you think it’s too broad – that’s all well and good. But it’s still a clear definition: in shorthand, public use = public purpose. Nothing impenetrable there.

  43. Matt, I said that the action, defing the situations in which ED can be used, was consistent with the Kelo decision. I didn’t say that is was required by the Kelo decision.

    That’s not a difficult distinction to understand, is it?

    Actually, it probably is for Haklyut. He considers “public use = public purpose” to be “impenetrable.”

  44. “… nor shall private property be taken for not obviously-corrupt private use or public use or public purpose, without just compensation. Obviously-corrupt private takings are strictly forbidden.”

    source: Joe’s Infinitely Changeable Constitution, Being a Revision to Better Comport with the World According to Joe

  45. Hey, gang, let’s pretend we don’t know that “public” and “private” are opposite concepts!

    Woo hoo!

  46. So, the NLDC isn’t private? Or is it a conflation of public and private, of your two opposites? Either way, you, sir are wrong.

    “In February 1998, Pfizer Inc., the pharmaceuticals manufacturer, announced that it would build a global research facility near the Fort Trumbull neighborhood. Two months later, New London’s city council gave initial approval for the New London Development Corporation (NLDC) to prepare the development plan at issue here. The NLDC is a private, nonprofit corporation whose mission is to assist the city council in economic development planning. It is not elected by popular vote, and its directors and employees are privately appointed. Consistent with its mandate, the NLDC generated an ambitious plan for redeveloping 90 acres of Fort Trumbull in order to ‘complement the facility that Pfizer was planning to build, create jobs, increase tax and other revenues, encourage public access to and use of the city’s waterfront, and eventually build momentum for the revitalization of the rest of the city.'”

    O/Connor, J., dissenting

    Or maybe the retired Justice is a liar?

  47. joe,

    The problem is, if “public use” = “public purpose”, the language is not impenetrable, but superfluous. It doesn’t restrict takings at all. Aside from bribery-induced takings, already implicitly forbidden in the Constitution’s articles, what taking by a publicly-elected govt would not be considered “public purpose”?

  48. I said that the action, defing the situations in which ED can be used, was consistent with the Kelo decision. I didn’t say that is was required by the Kelo decision.

    No, what you said is that the action is “doing exactly what Kelo authorizes.” You’re really getting tiresome with this BS, joe.

  49. Hakluyt,

    How is it that “the government can never give you the market value” in cases involving ED? The economic problem (actually, there are several) with ED is that the government ONLY gives the owner the market value for his or her property which is always less than the value the owner places on this property (otherwise the owner would simply sell the property). Unfortunately for advocates of ED, the difference in value is significant from the standpoint of economics.

    There should not be any in-principle difficulty with the government accurately calculating the market value of a piece of property. Whether or not it does in all cases is a completely different matter…

  50. Aside from bribery-induced takings, already implicitly forbidden in the Constitution’s articles, what taking by a publicly-elected govt would not be considered “public purpose”?

    Exactly. crimethink cut to the heart of the issue. The Supremes interpreted the “public use” phrase so broadly that it becomes meaningless in practice. Now, I’m not going to claim that I have a crystal ball and I can tell exactly what the Framers had in mind, but I’m sure they meant for “public use” to mean something, for it to be a constraint on the power of the legislative and executive branches to take private property.

    The courts interpreted “public use” so broadly that as long as a city council claims to have a plan to improve the community the courts will have to defer. And I’m all in favor of separation of powers, but if the Constitution explicitly lays out a limitation on a power, well, the courts have an obligation to uphold that limitation. Deferring in all cases (or setting such a loose criterion that in practice any city council can wiggle through it) defeats the whole purpose.

    That is the fundamental issue. We can debate the proper meaning of “public use”, but however you approach it, the phrase still has to mean something, and it has to be stringent enough to bar more than just bribery. That, at a minimum, is something that any reasonable person should be able to agree on.

    joe, why are you doing this?

  51. thoreau, crimethink,

    “Aside from bribery-induced takings, already implicitly forbidden in the Constitution’s articles, what taking by a publicly-elected govt would not be considered “public purpose”?”

    Private takings done to help out a buddy, absent any bribe or quid pro quo, would also be forbidden. There has to be a public purpose – that’s the boundary. If the government does a taking for the public purpose, it stands. If there is no public purpose, it does not. The fact that this restriction is not as broad as you’d like does not make it absent.

    joe basher, Development Authorities are strange beasts. But your argument is irrelevant – the public purpose comes not from the project’s achievement of the NLDC’s purpose, but that established by the City Council. That they hired a private party to do their business is no different than a city hiring a paving contractor to pave the roads – it’s still a public project, done at the behest of the government, for a public purpose.

    Who pissed in Matt’s Cheerios? All this over the word “backlash!”

  52. “joe, why are you doing this?”

    Perhaps because he’s batshit insane? Pugnacious? Contrarian? Because bickering on this board beats banging his head against a wall?

  53. Because you’re wrong on the law?

  54. There has to be a public purpose – that’s the boundary

    joe-

    In an era where a guy growing a plant in his own yard for his own use constitutes “interstate commerce”, almost anything can be spun as serving a public purpose.

    I will grant you this much: A sufficiently small taking (e.g. giving a single house to a developer) would probably be harder to rationalize than a larger taking (e.g. taking over a city block, which could be spun as part of a “comprehensive development plan”).

    The fact that a more intrusive program would be easier to spin than a smaller program does not make this limitation any more reassuring to me.

  55. Yes, thoreau, you’ve made it clear you think the discretion is too broad. But the sovereign has always had extremely broad powers to determine when to use eminent domain, and the founders of the Constitution didnt’ choose to include any language limiting this power beyond its traditional meaning.

    State Constitutions that contain stricter limits do so by including additional language.

  56. joe, the question isn’t whether I think the discretion is too broad.

    The question is whether a creative city council would ever find itself unable to justify a taking. If the answer is “no” in the vast majority of cases, then the Court has rendered the phrase “public use” meaningless.

    If the phrase becomes meaningless then the discretion is effectively unlimited, which is clearly against the Constitution.

  57. “If the answer is “no” in the vast majority of cases, then the Court has rendered the phrase “public use” meaningless.”

    No, the answer would have to be “no” in every case for the phrase to be meaningless.

    If the answer is “no” in “the vast majority of cases,” the phrase is broad, not meaningless.

  58. joe-

    There’s a difference between the practical and literal definitions of “meaningless.”

  59. OK, I can buy that. But the two have very different imports.

    If the phrase was literally meaningless using my definition, my interpretation of the clause would be constitutionally invalid, because there is no extraneous language in the Constitution.

    However, if the phrase was practically meaningless, my interpretation would still clear that particular bar of constitutionality, since nothing prevents the language of the constitution from being read in a minimalist manner.

  60. joe-

    I guess it comes down to whether you want the Constitution to have some meat on its bones. Or whether you want both edges of the sword (the edge that grants power and the edge that limits power) to be sharp. I’m not a purist libertoid, but it seems to me that limits ought to have significant practical effects, not just effects that are mostly theoretical and rarely encountered. I mean, if a sufficiently creative city official can spin almost any taking as serving a “public use” then the power is limited primarily by the creativity of the official, not the Constitution.

  61. thoreau,

    The practical effect of the language is to require a showing of public purpose. Where I disagree from the decision, and where I think the Court should have put more meat on the bones, is in the degree of deference the court gave to the plan.

    The “public purpose” standard is used in many areas of the law, but that doesn’t always translate into the federal courts being bound to treat the assertions of the government with great deference. Even the strict scrutiny standard, among the highest levels of review the courts impose, includes the concept of public purpose – but it makes the government show that its actions will achieve that public purpose, along with other things.

  62. It’s not even about the vast majority of cases – there is simply NO time the court could use “public use” now as any restraint. Not just in the vast majority, though I agree with thoreau that if it is the vast majority the practical effect is still the same: no meaning. But the city council would never be dumb enough to announce a “corrupt private taking.” We all know this. I think all private takings are essentially corrupt. But all of them can be rationalized somehow. So since we know there is never going to be a per se corrupt private taking, the courts can’t substitute their judgment for the findings of the city council on policy matters – so public use is, in fact, now meaningless.

    I think joe’s continued defense says more about the fact that he likes the result than that it is theoretically sound. It is simply self-serving. I’m still curious if he things Roe was wrongly decided… and if not how that can square with Kelo in terms of deference to the states authority.

  63. Like he said, the sovereign usually has all the cards, and he likes being part of the sovereign.

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