Today in Supreme Court History: February 22, 2005

2/22/2005: Kelo v. City of New London argued

Comments

[Brett Bellmore]

A day that will live in infamy, when the Court replaced "public use" with "public benefit", allowing takings for any purpose a local government claimed to think beneficial.

[apedad]

Agree although it did provide an opportunity for states to strengthen private property protections.

From The Yale Law Journal:

In one sense, states have filled the vacuum of federal constitutional protection amazingly well. In response to Kelo, a total of forty-four states changed their laws: Eleven changed their constitutions,9 while forty enacted a broad range of statutory changes.10

The bulk of these changes relate to the meaning of “public use” or “public purpose.” Thirty states tightened those definitions to various degrees.11 Twenty-five states changed their definitions of “blight,” requiring a closer connection between the taking and the protection of public health or safety, and diminishing the government’s ability to designate large areas as blighted based on the condition of a few properties.12 Eleven states gave prior owners a right of first refusal to repurchase property that has not been used for the purpose for which it was condemned or that is later sold by the condemnor.13 Nine states changed the burden of proof in eminent domain cases, either by requiring the government to prove public use or by removing deference from the government’s assertions.14 And two states prohibited transferring condemned property to private parties for any reason, at least for ten years.15

In three of the six remaining states without constitutional or legislative change, the high courts increased protections against takings for private use.16 High courts in seven states with statutory changes also imposed additional protections.17 Thus, in the aftermath of Kelo, a grand total of forty-seven states increased protection against takings for private use.

https://www.yalelawjournal.org/forum/looking-back-ten-years-after-kelo

[Brett Bellmore]

That's like saying an auto accident is a great opportunity to get in some physical therapy, and who doesn't need time in the gym? It would have been vastly better if the Court had just ruled that "public use" really means USE, and that government can't transfer condemned property to private owners unless for a traditional common carrier purpose.

[apedad]

Hmmmm. . . I think a better analogy would be an auto accident would give car manufacturers an opportunity to increase safety devices.

[Brett Bellmore]

The issue here is that some states did indeed increase state level protections against abusive takings. Others didn't.

In some of those states the enacted protections had real teeth. In others they didn't.

But what I see here is a loss at the federal level that the states moderated, but still a net loss until Kelo is reversed.

[Krychek_2]

But I thought you supported federalism? Shouldn't individual states be free to decide for themselves what constitutes public use?

[Michael P]

Should states be allowed to define what qualifies as "speech" or "equal protection of the laws"?

[Queen Amalthea]

It certainly is fun to see all these young (or amnesiac older) conservatives suddenly grasping the fallen banner of the Warren Court and charging forth with a hearty Huzzah!

[Brett Bellmore]

The left seizing the power to censor from the right has indeed made for some interesting about faces, on both sides of the aisle, but my personal political evolution started in the Libertarian, not Republican party, so I wasn't part of any such flip. The GOP was already realizing the threat of censorship to its own favored causes by the time I decided to join.

[Queen Amalthea]

This is hardly just about first amendment rights. When states did or do anything conservatives didn't like, gun control, affirmative action, campaign finance, etc., conservatives suddenly found lots of exceptions to the principle of leaving things to the states.

They're doing the same thing now with regard to local governments. Used to be the argument was that government closest to the person governs best. But now you've got the right cheering states barring localities from removing statues, banning fracking, etc.

[Brett Bellmore]

It's actually a bit hilarious to see you writing that, as though the Constitution didn't actually have the 1st, 2nd, and 14th amendments, and thus didn't actually prohibit restricting freedom of speech, (Even if you try to do it indirectly by prohibiting spending money on the speech.) infringing on the right to keep and bear arms, or guarantee equal treatment under the law.

[Queen Amalthea]

For nearly all of its history the First Amendment was not held to apply to campaign funds. That's certainly not a necessary reading of it (see, for example, the opinion of a more principled state's rights advocate Rehnquist in the bank finance case). Ditto to the 2nd btw, and it's certainly not clear that the original understanding of the 14th forbid affirmative action for blacks (given the same Congress that made it engaged in that).

[Brett Bellmore]

Should they be free to decide what's equal protection, too?

I support federalism as actually implemented by the Constitution, not some imaginary federalism that leaves the Constitution unenforced.

[Krychek_2]

In practice, the states do decide what is speech and equal protection. There are thousands of state court decisions interpreting speech, religion, guns, right to a jury trial, and pretty much every other right guaranteed by the federal Constitution. The federal Constitution places an outer limit on it, but so long as they don't go too far off the reservation, states have decided since those amendments were ratified what they consider to be free speech and equal protection.

The essence of federalism is that one size does not fit all. If Connecticut reads the Fifth Amendment differently than Alabama does, more power to them. You can't have it both ways.

[Brett Bellmore]

As a general rule, states are free to be more protective of rights than the federal Constitution dictates, but not less.

"The essence of federalism is that one size does not fit all. If Connecticut reads the Fifth Amendment differently than Alabama does, more power to them. You can't have it both ways."

That does describe the abstract principle here, but the Constitution didn't enact the abstract principle, it enacted actual rules.

[Queen Amalthea]

"As a general rule, states are free to be more protective of rights than the federal Constitution dictates, but not less."

This is just conservative amnesia, at least when referring to anything other than the provisions where the Constitution explicitly applies to the states. For most of our history it was pretty well settled law that most of the Constitution applied to the *federal* government only.

It was only almost a century after passage of the 14th that a bunch of liberal justices, who were condemned as judicial activists by conservatives invoking federalism at the time, radically changed things by incorporating most of the BoR to the states.

[Krychek_2]

The point, though, is the federal Constitution as interpreted by whom? Any time you have two lawyers there will be three opinions as to what any given Constitutional provision actually means.

The Connecticut Supreme Court's decision in Kelo did not say that they were recognizing fewer rights than the federal Constitution does. Rather, they interpreted that provision differently than you would. And, while I don't agree with it either, saying that a public purpose *is* a public use is not a completely outrageous decision.

[Brett Bellmore]

"For most of our history it was pretty well settled law that most of the Constitution applied to the *federal* government only."

Yeah, prior to the 14th amendment that was actually true. And after the Slaughterhouse cases, it was, damnably, official jurisprudence.

But the 14th amendment was adopted, despite the Court's malice, to change that, and force the states to respect all the rights guaranteed by the federal Bill of Rights.

[Queen Amalthea]

"But the 14th amendment was adopted, despite the Court's malice, to change that, and force the states to respect all the rights guaranteed by the federal Bill of Rights."

That's certainly not obvious (not even persuasive imo), but more importantly
1. It's quite a recent conservative position (Bork, Meese, Berger, etc., all argued strongly against it because in large part...)
2. It's certainly not a position anyone with a sensible idea of 'state's rights' would take, those folks realized that it was likely the most massive transfer of powers from the states to the federal government in our history.

[Kevin Smith]

I love how when Queenie finds herself in agreement with Brett, she has to try to convince him he's wrong so she can disagree with him again

BTW, as far as amnesia, you should look up what European political movement progressivism was a parallel to 100 years ago (or what the Democratic Party used to get into 160 years ago)

[Queen Amalthea]

You misunderstand Silent Bob. My point is that Brett, like many on the Right today, often invoke 'state's rights' and federalism, but they often also invoke what most every intellectual on the Right understood when it was happening to be anathema to it: incorporation of once federal rights to the states by the federal judiciary.

[Krychek_2]

Kevin, you know why the Democratic Party is no longer doing what it did 160 years ago? Because as soon as it became the party of equality and civil rights, the racists in it all switched parties. Those Southern Dixiecrats would today all be voting Republican if they came back from the dead.

[Brett Bellmore]

1 "It's quite a recent conservative position"

I don't really give a damn if it's a quite recent conservative position, since I'm a socially conservative libertarian, and only in the GOP because the major parties got together on rigging the system against third parties. And have you ever seen me say anything nice about Bork?

2. "It's certainly not a position anyone with a sensible idea of 'state's rights' would take, those folks realized that it was likely the most massive transfer of powers from the states to the federal government in our history."

It was, but that's still what the purpose of the 14th amendment was, as explicated in Congressional debate, and as applied by the lower courts before the Supreme court spiked it.

As I said, I favor federalism as actually implemented in the Constitution, not some nebulous federalism divorced from that document. And the 14th amendment is absolutely part of that Constitution.

Plenty of power remains reserved to the states, even in light of the 14th amendment.

[Queen Amalthea]

Sure, you're a state's rights conservative who just strongly supports what conservatives at the time saw as the biggest blow (and one not only not required by but antithetical to the Constitutional text/intent) to state's rights in our nation's history. That kind.

It's interesting how right around a conservative majority on the Court those kinds of state's rights conservatives proliferated...

[Krychek_2]

Which, by the way, is one reason I take a far less expansive approach to federalism than you typically do: I don't want Connecticut deciding it can take the little pink house for a shopping mall either. I agree that Kelo was wrongly decided. But if you're going to take an expansive view of federalism, you can't call it back when you get a ruling you don't like.

[Queen Amalthea]

Brett has consistently supported states rights (to do what Brett thinks they should).

[Brett Bellmore]

I support states' "rights", (Powers, really.) where I think the Constitution allows them, and not where I think it doesn't.

"The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people."

I don't ignore that "nor prohibited by it" language, but I don't invent prohibitions you won't actually find in the text.

[Queen Amalthea]

No, like most 'states rights' advocates you just invent something when you want a state to have a power and invent something else when you don't want it to have that power. It's the same thing you and other conservatives do regarding local government powers.

[Brett Bellmore]

You mean like when I invented the 2nd amendment when I didn't want state gun control laws? Or ignored the 26th and 2/3rds amendment when I object to abortion?

[John F. Carr]

It's trendy these days to call for repeal of laws that were imposed by people who can be accused of racism or used in ways that can be called racist, so this is a good time to attack anti-"blight" laws.

[Brett Bellmore]

I recall Coleman Young deliberately blighting areas of Detroit, (By refusing to repair street lights, and withdrawing police protection.) in order to invoke blight laws and lower the amount of compensation required during takings. He had big plans for the land he was trying to make vacant. (Plans that usually, like Kelo, never happened.)

Of course, he was black, as were the victims of this tactic, so he didn't get accused of racism.

[Queen Amalthea]

Brett, is there any strong, usually accompanied by hyperbole, conclusions that you make that do not rest on an inaccurate foundation?

https://supreme.justia.com/cases/federal/us/467/229/

[Queen Amalthea]

" This Court will not substitute its judgment for a legislature's judgment as to what constitutes "public use" unless the use is palpably without reasonable foundation. Where the exercise of the eminent domain power is rationally related to a conceivable public purpose, a compensated taking is not prohibited by the Public Use Clause. "

"O'CONNOR, J., delivered the opinion of the Court, in which all other Members joined, except MARSHALL, J., who took no part in the consideration or decision of the cases."

[Brett Bellmore]

You can see the phrase "public purpose" right there in your quote; The Court allowed "purpose" to take the place of "use" as specified in the actual amendment's text, by refusing to rule that purpose didn't equal use.

It was widely complained of in legal commentary at the time, you may recall.

[Krychek_2]

And while I agree that your interpretation is the better one, saying that a public purpose is a public use is not a totally outrageous interpretation. Essentially, the Court adopted an interpretation that you disagree with.

[Brett Bellmore]

It actually says "use", and "purpose" is a different word, with a different meaning.

[Krychek_2]

Purpose is a different word with an overlapping meaning. Your argument is essentially that religion and sect mean different things. Which they technically do, but for First Amendment purposes there's not much daylight between them.

[Queen Amalthea]

use
noun
noun: use
/yo͞os/

1. the action of using something or the state of being used for a purpose.

[Michael P]

That agrees with Brett. Use, as a noun, is distinct from the purpose of the use, even though the two are related.

[Queen Amalthea]

Purpose is built into use. "The purpose of my car is transportation, I use my car for transportation."

[Michael P]

So now you agree with Brett, too. Glad we resolved that.

[Queen Amalthea]

I think most normal humans reading that sentence get that the use and purpose of my car is the same thing.

[Queen Amalthea]

purpose
Share

When you do something with purpose, you do it with determination. When your activities have a purpose, you have an aim or intention in mind.

This noun also has a third meaning: "function, role, or use." The purpose of a fork, for instance, is to spear and scoop food from your plate, not to poke your little brother at the dinner table.

[Michael P]

I think you're unhinged if you think "normal humans" think that the purpose of a car is identical to the use of the car. The first is "why", the second is "how".

[Queen Amalthea]

Of what use if a spoon? It's purpose is to scoop up bits of food. That's it's use.

[Queen Amalthea]

"is" not if there

[Brett Bellmore]

As modified by "public", the 4th amendment specifies who the use is to be by. That is the limitation, takings must be for the public to use. Either actual government uses, or if private, by common carriers, where the public gets to use them.

Exclusive private use, even if proposed to redound to the public benefit, isn't "public use" because the public isn't using it.

[Queen Amalthea]

That's question begging. If, a la Aristotle and dictionaries, a use can be a purpose, then the word public before the former doesn't rule out the latter.

[Darth Chocolate]

You can certainly confiscate something for a purpose, but if you don't USE it for that purpose, the purpose was a sham to begin with.

[Krychek_2]

Not necessarily. I think when Ms. Kelo's house was taken, the city really did believe a mall was going to be built there. Plans change.

[Michael P]

That is a good reason to read the Fifth Amendment strictly: If ownership remains with the public, at least for the foreseeable future, then it is more clearly a public use. If "plans change" and the public purpose evaporates or sublimates into a private one, it hollows the objective of the Fifth Amendment, just as the Kelo dissent warned.

[Queen Amalthea]

Apart from what I've said above, why would 'use' mean only publicly owned entities? The Right doesn't believe in privatization (or just contracting once government services and infrastructure out to private parties to operate) anymore?

If the government condemns land for a private company to build a prison, the private company having been contracted to operate the prison instead of the government having to, that's not a 'use' but a 'purpose?' That seems like not only an overly cute semantic trick similar to the ontological argument (which one philosopher said never convinced anyone who wasn't already so) but also denies an important libertarian tool to the government.

[Brett Bellmore]

Use doesn't mean only publicly owned entities. Historically, it also covered private entities that operated as common carriers. You could, for instance, take land for a private ferry company to use for a landing, but the ferry company had to carry anyone who showed up and paid the toll. Likewise with bridges and other publicly used, though privately owned, infrastructure.

What was relatively novel in Kelo was that the taking was for a private use that would NOT be a common carrier; The only public benefit proposed was increased tax revenues, which isn't public use at all.

[Queen Amalthea]

So your comment that this day, when Kelo was decided, is a 'day that will live in infamy when the Court replaced "public use" with "public benefit", allowing takings for any purpose a local government claimed to think beneficial," was, as usual inaccurate. There was a long line of pre-existing decisions to that effect.

[Queen Amalthea]

In 1984 and 1954 there was not a massive media presence that is basically a PR firm for conservative Republicanism, but when Kelo was decided there was. Folks like Brett, who allowed themselves to be played like fiddles by these outlets, of course don't know/think about the fact that Kelo rested on decades of rather legally uncontroversial precedent. Tucker (well, it would have been Bill around then I guess) never mentioned anything about it!

[Queen Amalthea]

And, of course, this was just following precedent of another SCOTUS decision dating back to Days When America Could Be Assumed Great I guess:

"This Court cannot say that public ownership is the sole method of promoting the public purposes of a community redevelopment project, and it is not beyond the power of Congress to utilize an agency of private enterprise for this purpose, or to authorize the taking of private property and its resale or lease to the same or other private parties as part of such a project"

https://supreme.justia.com/cases/federal/us/348/26/

[Michael P]

Yes, a lot of bad law came out of the New Deal and its corruption of the Court.

[Michael P]

A thread in which QA cites a decision upholding the right of a state to disperse a historically unjust concentration of private land ownership to ... defend a decision upholding the right of a state to institute an unjust concentration of private land ownership.

It must be a day ending in "y".

[Queen Amalthea]

Lol. Your built in question building aside, I cite it in order to correct the claim that the latter decision was 'when' such a thing occurred making the latter 'a day that will live in infamy.'

But, nice try! These threads can be complicated sometimes 🙂