OTOH, I *do* think it should be exceedingly difficult for the state to appropriate homes. Yes, there is a hierarchy of property, not just in the nature of it itself, but also because of the ownership of which.


I think you hit the salient point, which if I think should be the underpinning of polity and that forms the legal analysis.

Our limitations on the right of property ownership have always been predicated on use of the land. Our body of law that surrounding eminent domain is always centered on use.

Yet in Kelo we ignore the value of use and leave it to the state to be the arbiter of use. In fact, it was these arguments that were struck down.

The use of land for one's principal domicile is important to the state, and is an important right of the individual. The use of land for the building of public ways, schools, or public utilities is perhaps a greater good that should allow for the establishment of eminent domain.

The use of land for greater economic gain is not IMHO a greater good that would pre-empt the rights of the homeowner.

Our laws do recognize the utility of that greater use of the homeowner, and we have enacted statutes that give rights to homestead. Those homesteads can prevent creditors from defeasing an owner merely because of bad debts. From an economic perspective, this is undoubtedly inefficient for the great invisible hand.

But with all that being said, Field is correct. Our body of law does allow CT, New London, and the SC to arrive at this decision.

Connecticut's abbreviation is "CT".

My bad.

Excellent points, Retardo.

The use of land for one's principal domicile is important to the state, and is an important right of the individual. The use of land for the building of public ways, schools, or public utilities is perhaps a greater good that should allow for the establishment of eminent domain.

The use of land for greater economic gain is not IMHO a greater good that would pre-empt the rights of the homeowner.

Perfect summary.

My only objection to RETARDO's post is that while he very nicely describes the self-serving motivations of the conservatives who came down (for once) on the side of the relatively powerless, pointing out this hypocrisy still leaves us with an 87-year old woman whose life has been completely disrupted in her last years for no better reason than an increase in the tax base. As others have pointed out, this is a slippery road indeed. Grand legal principles aside, the bottom line in all this is that those who have, get.

BL is likely right that the SC was exercising proper restraint in not trying to legislate its own concept of the proper use of eminent domain. And the true villain here is the political corruption inherent in the whole concept of eminent domain in practice, if not in principle. Nevertheless, the words "collateral damage" seem to hover all over this case like a military helicopter, and it isn't a pretty sight. In 1965, it was "we had to destroy the village in order to save it." Now it seems to be "we had to destroy the house in order to save the tax base." It wasn't General Westmoreland's village then, and it isn't some millionaire's house today.

BL, this isn't a question as to whether "The current decision is supportable under the law" - you're right, it is. It's not even a question as to whether this decision is unfair - I think we're all agreed it is. It is about the fact that Mefisto called Thomas and Scalia "hypocritical" (his precise word) for dissenting. And it is especially about the fact that Mefisto wrote so lengthily about the court's duty to protect minority interests, and even create new rights in order to do so. Well, I thought, then he would definitely regard this decision as a monumental wrong. But it turns out not to be so, and he simply throws out obfuscation like "I do NOT consider property something which should be elevated above the needs of people" - when of course it is precisely the needs of people that concern me, specifically the needs of these families about to be thrown onto the streets.

Mefisto - you seem to think I have insulted you. That was not my intention. If I have caused you offence it was not my intention. But it is not hard cases that make bad law. It is bad law that makes hard cases.

RETARDO - you remind me so much of the TV show "Citizen Smith."

Just heard on ESPN

Bonds' knee swells up again. Workouts shut down. No baseball related activities on the near horizon.

"I do NOT consider property something which should be elevated above the needs of people"

To borrow Retardo's phraseology, I also believe in a hierarchy of rights. In fact, I almost agree in with the first draft of the Declaration in their order:

Life, liberty, [privacy,] and property.

I also believe property has a hierarchy: Principal residence, real, miscellaneous chattel, and wealth.

I also imagine each of those categories have a scale.

I think these rights of the individual should be preserved by the state. I just don't go as far as the libs and believe they should be preserved at all costs.

To infringe on those individual rights, the state must have a need, and as you move up the scale, the need has to become larger and larger.

There is nothing unique or novel about this position. I'd opine it is the basis of most of western law. Its just on this one decision, I think we had the wrong endpoint.

And where I differ from Mark is how I differ from Mark or Nieporent on questions of administrative law. I don't think an elderly lady needs to be forcefully evicted from her family home so that we have enough awareness to know we need to legislate protections.

I don't think an elderly lady needs to be forcefully evicted from her family home so that we have enough awareness to know we need to legislate protections.

Except that apparently we do. But good post, BL. Your hierarchical scale of property speaks well of you.

The state must have power of eminent domain.

I think 99% of us would agree with that, Retardo. The problem is where to draw the line.

Whether one agrees with eminent domain as a practice or not is a moot point as far as I'm concerned. It was created as part of our Constitution centuries ago, so if someone has a problem with it, they need to start some type of grass root effort for an amendment to counter it.

My beef with the SC is that this new interpretation is no where near what the Founders meant by eminent domain. Now, if we are going to say it's a new time and a new interpretation is needed, we might as well use the Constitution to wipe or butts with then. What the hell good is it then?

Yes, the interpretation of eminent domain had changed throughout the years prior to this ruling. I doubt Hamilton, Madison or Jay would agree with the removal of property owners and residents for the purpose of erecting a new ballpark in a city. But at least that's somewhere near the earlier definition of eminent domain. This new one is not, IMO.

Hopefully, enough people notify their state Congress that they need to be protected from Wal*Mart or Cosco telling us to find another place to live.

It does pave the way for a municipality to take land for a better economic use. Not just for a public need, public utility of great import, but a better economic use.

Does this smell like state/national socialism to anyone other than me -- the State making decisions based on this kind of economic rationalization? It frankly gives me a chill.

Now, here in Hawaii, you have to truly understand how screwed up the land distrubution system was in the transition from the Monarchy, to appreciate the need for the law that was passed. This really was the residue of a decidely undemocratic situatoin, and for that reason I see it very differently from the Connecticut situation.

Which is not to say I disagree that the law supports what SCOTUS did. The problem to me is not SCOTUS. The problem is Connecticut.


Life, liberty, [privacy,] and property.

I have alwasy believed that the liberty interest inherenlty included the privacy interest. The freedom to be left alone, as it were.

What's good for the goose is good for the gander.

I think it's "the old switcheroo".

Good thread, shysters lawyers. Very educational.

It's not even a question as to whether this decision is unfair - I think we're all agreed it is.

Well, call me the dissenter from that proposition. I don't think the decision is unfair. While I think the Court's primary mission is to protect minorities and individuals. The argument against Kelo seems to be that the Court failed to perform this function in protecting the individual right to property.

But, a deprivation of free speech, or equal protection -- where the Court's mission must be to stand in the way of majoritarian preferences -- is quite different from the property right at stake here. Remember, the individual property owners here receive compensation for their property. If New London was attempting to take Kelo's property w/o paying her its fair market value, then I'd buy the notion that there is some unfairness here.

The right to property is primarily economic in nature. Not entirely; it also encompasses the right to determine how to use and whether to keep that property, for non-economic reasons if the owner so chooses. But since it is primarily economic -- and the societal value of protecting it is primarily economic -- the core of the right is protected so long as the courts sit to ensure that the compensation is paid, and that the amount is appropriate.

To me, the "unfairness" would have been far more profound had the decision gone the other way. It would have put courts in the business of second-guessing elected governments' determinations of what serves the public interest. It would have encouraged silly, formalistic machinations re. the form of transactions. (To wit: instead of condemning the property and turning it over to private development, the state or local government will simply condemn it, and then "lease" it to the developers to accomplish the same ultimate purpose.)

When the right involved is protected to the extent the property right is protected by the compensation requirement, I am inclined to say courts should enforce that requirement strictly. But they should grant precisely the deference the majority in Kelo gave the elected branches as to what are genuine public uses of the property they take.

Unless, of course, we think democracy is generally unfair??? ;-)

Well, call me the dissenter from that proposition.

Not the only one. I agree with your entire post.

Unless, of course, we think democracy is generally unfair??? ;-)

I don't know about "we", but "I" think a democracy can have limitations in protecting inalienable rights.

Not entirely; it also encompasses the right to determine how to use and whether to keep that property, for non-economic reasons if the owner so chooses. But since it is primarily economic -- and the societal value of protecting it is primarily economic

And this is where we diverge. The public and state are severly limited in providing relief other than in economic forms, but our very system of law recognizes that money alone cannot make one whole.

When you reach the point that you are willing to watch people needless and unknowingly die to preserve the individual freedom to poison oneself (the libs), or when you reach the point where you consider evicting an 80 year old woman from her family home to increase the tax base; then maybe, just maybe, your ideals and polity have overtaken you core essence of humanity.

To me, the "unfairness" would have been far more profound had the decision gone the other way. It would have put courts in the business of second-guessing elected governments' determinations of what serves the public interest.

Yes, and that is why you can not like the outcome, but support the process that got you there. And its not like in our history of jurisprudence, the court does not interject in exactly that fashion.

And to me that is very analogous to our other recent civil issue discussion. And IMHO, its one of the reasons 2Alou takes humbrage at the lot of us. By the same reasoning the court should have no business interjecting itself into the definition of marraige as long as all unions could have the same economic benefits.

But, I don't overtly support the "civil union" comprimise because it strikes me as fundamentally unfair to engage in such a seperate but equal type of formula. Nevertheless, I could see such a differentiation being supported under the law for the same federalistic reasons.

I'm not out here to say anyone is a hypocrit. In fact, I strongly agree with Field that we should legislate this state capacity away. But I hate that someone had to go down for this.

It would have encouraged silly, formalistic machinations re. the form of transactions. (To wit: instead of condemning the property and turning it over to private development, the state or local government will simply condemn it, and then "lease" it to the developers to accomplish the same ultimate purpose.)


I don't think that is the rule that I would craft. Again, I think that their are permissable reasons to take one's principal residences and tenuous reasons. This is a tenuous reason.

But at the end of the day, perhaps this just proves what all Primates believe. I likely would have ruled exactly as the lower court did, (investment property ok, homesteads not ok) because that is a fair result, a result we could support in the law (obviously Cali's doing something like this according to field), and supportable under our principals of jurisprudence.

But maybe that's why I'm not smart enough to ever be anything more than a lower court judge.

What's good for the goose is good for the gander.


FWIW, we teach our students that this is a fundamental, albeit unwritten, rule of evidence, but we call it "the even-steven rule"

when you reach the point where you consider evicting an 80 year old woman from her family home to increase the tax base; then maybe, just maybe, your ideals and polity have overtaken you core essence of humanity.

Well, maybe I should be clear about one thing: I am distinguishing between the unfairness of the actions of New London (which I might agree with; I'd have to look into the details more closely to decide) and the "unfairness" of the Supreme Court's decision. Any particular exercise of the eminent domain power might be unfair, but the Court's interpretation of the rules that govern that power was not. At least in my opinion.

As for the homestead v. other property proposal, I guess you know my answer: that might well be a distinction a government could choose to adopt in its exercise of the power. But it is a distinction found nowhere in the Constitution, its history, or in any reasonable interpretation I can fathom. The Court thus had no business imposing it.

By the same reasoning the court should have no business interjecting itself into the definition of marraige as long as all unions could have the same economic benefits.

I don't see the analogy. The right to equal protection, unlike the 5th Amendment's property right, doesn't come with its own inherent limitation. We all have a right to equal protection, period, and we can't be "bought out" of that right. But the property right has its own built-in limit -- government CAN buy us out of it. Courts must respect the right, no doubt, but they must also respect any limits the Constitution states. If they "over-protect" the right, then they are imposing extra-constitutional limitations on legitimate governmental power.

<objectives are public uses and purposes for which public moneys may be expended </b>

Now I wasn't educated on Eli's farm, but tell me how on earth this should apply to developed residential communities when their lots do not abut the water, especially considering, ""the authority to condemn [is to] be strictly construed in favor of the owner of the property taken and against the condemnor . . . ." State v. McCook, 109 Conn. 621, 630, 147 A. 126 (1929). " Did you see the hoops the Ct.S.C. had to go through to make this apply.

Then keep in mind that requirement of strictly construed, because the Ct.SC then acknowledges that In contrast, under the 'narrow" definition, "to make a use public means that the property acquired by eminent domain must actually be used by the public or that the public must have the opportunity to use the property taken." , but chooses to apply the broad definition.

And they totally ignore their own precedent of review "the question whether in any given instance the use is or will be administered as a public or as a private use, is a question which must of necessity be determined by the courts in accordance with the facts of the particular case in hand." Kelo v. City of New London, 268 Conn. 1, 137 (Conn., 2004) citing Connecticut College v. Calvert, 87 Conn. 428 (1913).


And its not like they didn't have persuasive authority that economic development projects aren't such valid uses. Arkansas, Florida, Kentucky, Maine, New Hampshire, South Carolina and Washington have all formed decisions that state this principal.

This was an obvious land grab that should have never gotten to the SC. That ministerial requirement you seek to avoid (of not having to lease the land was already set up by the development authority.) They were going to enter a 99 year lease with the developer.

Once it did get to the SC, there was nothing in our law that would have prevented the SC to have obtained guidance from the great state of New Hampshire, "The net benefit to the public will consist of the benefits of the proposed project and the benefits of the eradication of any harmful characteristics of the property in its present form, reduced by the social costs of the loss of the property in its present form." Merrill v. Manchester, 127 N.H. 234, 237 (N.H., 1985).

Because its anathematic to me for the court to pass on this one, particular when these decisions haven't been made by democratic process. They have been made by delegated power to a local commission whose term is longer than any term of any Congressman.

This requirement of democratic process that you seek, is not in the form of approving local government functions. It is in the form of the populace having the foresight and knowledge to craft prophalactic legislation.

And no, I don't care what the Constitution of any document says. Just because the majority of my neighborhood may not like me, or some developer wants a land grab; there is no reason they should be able to defease me of my property.

I don't see the analogy. The right to equal protection, unlike the 5th Amendment's property right, doesn't come with its own inherent limitation. We all have a right to equal protection, period, and we can't be "bought out" of that right. But the property right has its own built-in limit -- government CAN buy us out of it.

In certain circumstances. A subset of those still exist, including pure A to B transactions by the State.

If they "over-protect" the right, then they are imposing extra-constitutional limitations on legitimate governmental power.

It is not overprotecting, its a legitimate review of what "public use" means.

Just like the Commerce Clause, the SC can draw the line where it damn well feels like it. This was the place to draw the line. When you defease nonblighted property for a suspected economic benefit, its time for the state to come up with a little bit of evidence. The court is entitled to review public use, and I believe they should.

Your argument that they should not is one of efficiency and administration. Yet, the court must conduct the same level of review in other contexts. There was no reason for this not to occur on the eminent domain issue.

The Fifth Amendment sure is one hell of a grab bag:


"No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation."

Turning to the last part of it, it always struck me that the clause does not say: nor shall private property be taken EXCEPT for public, and only then for just compensation". Rather, it says that property shall not be taken, unless the government pays for it.

I have not read all of the federal public taking cases, but I always felt that was one of the reasons why the Supreme Court has stated that " The "public use" requirement is thus coterminous with the scope of a sovereign's police powers." In other words, so long as the action is otherwise within the broad general powers of the government labelled "police power", it is not subject to federal judical review. It is the same level of review given for all laws not subject to strict or intermediate judicial scrutiny -- simple rationalism. Very few laws are overturned on the grounds that there is no possible basis for them.

Other states are, of course, entitled to interpret their constitutions differently. Or to follow a specific statutory scheme. Merrill v. Manchester, 127 N.H. 234, for example, was based on New Hampshire statutes, not the Fifth Amendment.

I defer to better researchers or historians to point me to where the Framers were actually concerned with why the Government was taking it, as opposed to merely being concerned that compensation would be paid. I stand ready to be corrected. Of course, it could be that they simply assumed that the government would never take property except for roads, forts, gov't buildings and the like.

That does not mean this was a good or wise decision. As I said, I have great qualms regarding States exercising this kind of power in aid of economic planning. Smells too much like Central planning to me. But I'm just an old fogey who still remembers our twilight struggle against the Commies.

Which raises the question -- given how much this smells like Central Planning, how come Red-Tardo is not in favor of it? [Just Kidding]

Justice Thomas's dissent spends quite a bit of time on the necessity to construe the public use clause as requiring both public use and compensation.

Also, in response to Sam's point: at least by Thomas's reasoning, unless the public had actual use of the property, the seizure wouldn't qualify for eminent domain. So I don't think your workaround of the city seizing the property and leasing it to the developer -- substituting public ownership for public use -- would qualify.

Well, that does it - A Dugout, a Lounge and "Judge Landis' Chambers" need to be posted everyday.

The state must have power of eminent domain. Is it paying these people a market price for the land? IF so, I don't see the problem in so far as that.

Is just compensation limited to fair market value. Who determines fair market value? Are you really at risk of being bought out cheap if the market takes a temporary decline? Is there no room in the calculus for the intangibles of home ownership, the dislocation of having to move, change schools for your kids, etc. I'll bet if the State was buying out all the Amish and giving them enough dought to move to South Philly, the court would see this case differently.

What I don't get is why the eminent domain should work for private interests. If the state needs the home to build a critical road, that is one thing, but if it is for private use, the private interests should have to procure the home themselves. If they can't get it done, that means the market has failed and if so there is no determinable just compensation anyway.

at least by Thomas's reasoning, unless the public had actual use of the property, the seizure wouldn't qualify for eminent domain. So I don't think your workaround of the city seizing the property and leasing it to the developer -- substituting public ownership for public use -- would qualify.

I agree, Zach.

Again, if someone can document one of the founders in agreement with the new interpretation, then I will shut up about it. I still won't like it, but at least it will have some Constitutional "gravitas" (boy, I hate that word). I seriously doubt anyone will find a document like this, however.

Well, that does it - A Dugout, a Lounge and "Judge Landis' Chambers" need to be posted everyday.

It's still better than regurgitating the same crap over and over again in regard to Bonds, Chris. :-)

Your argument that they should not is one of efficiency and administration. Yet, the court must conduct the same level of review in other contexts. There was no reason for this not to occur on the eminent domain issue.

Actually, there's an excellent reason. You compared what you'd like to see the Court do on "public use" to what the Court has done in the Commerce Clause. But since 1937, the Court has conducted only minimal rational basis review of CC regulations (the blip that was Morrison and Lopez notwithstanding). You are actually asking the Court to do a far more discerning review of 5th Am. takings.

Your proposal is far more like Lochner, which you may or may not mind, but which is a killer for me. You are asking the Court to be the arbiter of what constitutes a valid "public use," when that is a question that the political branches are far better equipped to answer. It is, essentially, a policy choice, and one you want the Court to make precisely because of the outcomes you would prefer to see. The Court would inevitably get into the business of making policy decisions over which uses it likes, probably based on one economic theory or another. To paraphrase Justice Holmes, "The [Fifth Amendment] does not enact Mr. Herbert Spencer's Social Statics [or any other particular economic theory]." Once the Court starts balancing what sort of use has a sufficiently strong justifiction to take what sort of property, there is no end to the uncertainty and mischief it can create. To wit:

* What about a property being used by the owner not as a residence, but to provide residences to others (an apartment building)?

* What if there is currently no blight, but forecasts from reasonably reliable (but uncertain) economic models show blight is likely within, say, 25 years?

* What if the use being contemplated is to sell the property to a defense contractor to build a weapons system important to national security? Or to an auto manufacturer to build a plant that will supply 2,000 badly jobs?

This requirement of democratic process that you seek, is not in the form of approving local government functions. It is in the form of the populace having the foresight and knowledge to craft prophalactic legislation.

Then your complaint is with the Connecticut Legislature, or with its citizenry. Maybe with its Supreme Court, although whether there is a basis in state law for the state Court to act is a question I haven't researched. Perhaps the democratic process in Connecticut has reached an unfortunate result, or even a deeply unfair one, in what it allows in the state's exercise of its eminent domain power. But the Constitution doesn't require states to be wise or even just. It requires them to pay compensation for taking property, and if they are willing to pay, it gives them very wide latitute to decide what are the valid reasons for using this power.

Well, that does it - A Dugout, a Lounge and "Judge Landis' Chambers" need to be posted everyday.

You might seriously want to do this on Monday. The Supreme Court is expected to announce the remaining decisions of the Term, including some very, very explosive ones (e.g., the Ten Commandments cases from Texas and Kentucky).

What I don't get is why the eminent domain should work for private interests.

Let me put it this way, Scoriano: if our tax system didn't tax businesses (I'm not arguing for or against that, BTW), what is happening in Connecticut and the SC's ruling itself would never have happened.

As Mark Felt once said: "Follow the money."

I saw we take Retardo's house and turn it into a public library. It would be of much better use that way.

at least by Thomas's reasoning, unless the public had actual use of the property, the seizure wouldn't qualify for eminent domain. So I don't think your workaround of the city seizing the property and leasing it to the developer -- substituting public ownership for public use -- would qualify.

I don't think that's what Thomas said:

The most natural reading of the Clause is that it allows the government to take property only if the government owns, or the public has a legal right to use, the property, as opposed to taking it for any public purpose or necessity whatsoever.

Under my hypo, the government would "own" the property, which Thomas said explicitly would qualify as a public use. If the New London project indeed was to be publicly owned and leased to the developers, then it seems to me Thomas should have concurred rather than dissented. If government ownership is enough, then Thomas shouldn't be second-guessing what the owner does with the property. His whole dissent was premised on the notion that the government "gave" -- not leased -- the property to the developers.

I saw we take Retardo's house and turn it into a public library. It would be of much better use that way.

Judging from all the books he has, it would be easier than you think. :-)

Let me put it this way, Scoriano: if our tax system didn't tax businesses (I'm not arguing for or against that, BTW), what is happening in Connecticut and the SC's ruling itself would never have happened.

As Mark Felt once said: "Follow the money."

Are you saying the constituional basis for eminent domain for private interests is that there is a revenue aspect to it?

If I was trying to be fair, I might be inclined to give the property owner whose home was confiscated not only something within the range of FMV but a piece of the upside in tax revenue or what I call scumbag insurance. Just the fact that the property is being rezoned might make it more valuable in some cases, and I don't see why the pre-taking owner who was previously foreclosed from using his land for commercial purposes shouldn't get some of that value. I'd much rather see private actors do the negotiating over this stuff than the state step in to help the private developer interests.

It seems to me that if the state wants the increased revenue so bad, it also should be able to incent the owners to pay just compensation privately.

I don't think leasing was before the Court so I would not construe Thomas language to a lease situation. Leases can be the synthetic equivalent of ownership, and not a just basis for any constitutional distinction.

Again, if someone can document one of the founders in agreement with the new interpretation, then I will shut up about it. I still won't like it, but at least it will have some Constitutional "gravitas"

John, you've said this twice now, but you're making a significant mistake on this point. As I pointed out in post 67 on this thread, the following 2 points are admitted by Thomas in his dissent:

1. The 5th A did NOT apply to the states when the Constitution was enacted. Federal courts could not prevent states from seizing private property.

2. State laws at that time allowed states to take property without restricting it to "public use".

If this case had come up in 1795, the result would have been exactly what it was Friday.

In this sense, the majority opinion in Kelo was NOT new. It refused to use the federal courts to second-guess state law. It would have been new, and completely contrary to the Founders' intent, if the decision had gone the other way.

Putting all this aside, as BL pointed out in 105, the decision is perfectly consistent with the way the law has been for years. In that sense also, it's not new. It's the conservatives on the court here who were advocating new law.

Are you saying the constituional basis for eminent domain for private interests is that there is a revenue aspect to it?

Yes, Scoriano. No money, no new interpretation.

It seems to me that if the state wants the increased revenue so bad, it also should be able to incent the owners to pay just compensation privately.

If the state wants more revenue, it should increase taxes out in the open, but that hurts far too many of the politician's constituents that way. But the beauty of divorcing residents of their private property is that they can gain monies without stepping on too many toes. Hey, as long as you're not the one whose property is being confiscated, you're not going to be too worried about this new form of eminent domain, right?

I don't think leasing was before the Court so I would not construe Thomas language to a lease situation. Leases can be the synthetic equivalent of ownership, and not a just basis for any constitutional distinction.

I don't agree. If I'm right that Thomas draws the line either at "use by the public" or "government ownership," then the fact that the government retains ownership should be critical. The result would be that governments and the private developers with whom they are working would simply craft the deals so that government would retain ownership. A leaseback arrangement might not be "just," but it would be consistent with what Thomas said.

IMO, the provision here is all about rules, not necessarily about justice. If government follows the rules, the result is constitutional, regardless of whether any one of us might regard it as a "just" outcome. If government should not do it, then use the democratic process to change the way that particular government exercises its power. Don't read the Constitution to achieve justice by imposing requirements the Constitution does not impose.

My point simply is that if the rule Thomas is proposing is so easy to get around simply by changing the form of the deal, then there is not much point in imposing the requirement in the first place.

IMO, the provision here is all about rules, not necessarily about justice. If government follows the rules, the result is constitutional, regardless of whether any one of us might regard it as a "just" outcome.

I am sure you are on to something. It is interesting, however, that the Constitution doesn't lay out the rules per se but does require "just compensation". I have no idea what that means. (I don't particularly care what guys with powdered wigs thought about it by the way.) But, it has apparently become the law of the land that this means fair market value (FMV) or some such thing. That FMV has become the consitutional equivalent of "just compensation" seems to me to be above all else a policy decision and not an interpretive necessity. It's a choice that supports capitalist expanionsist policies for better or worse. But is it "just"?

John, you've said this twice now, but you're making a significant mistake on this point. As I pointed out in post 67 on this thread, the following 2 points are admitted by Thomas in his dissent:

1. The 5th A did NOT apply to the states when the Constitution was enacted. Federal courts could not prevent states from seizing private property.

If that's the case, then do the other amendments apply to only federal, but not state, concerns? I was always under the impression that a state law couldn't supercede an amendment to the Constitution.

2. State laws at that time allowed states to take property without restricting it to "public use".

I'm not arguing against eminent domain, but only against this new form. I would have been shocked if there hadn't been state laws on the books at the time, Mefisto.

But which state laws from two hundred years ago allowed the government to seize property so a business could claim it?

John, the XIVth amendment has been interpreted to *incorporate* most of the bill of rights, including most (but not all) of the Fifth Amendment. Thus, this has only been so since the amendment or rather since the courts so held, my guess is this has been so since probably the late 19th century.

If that's the case, then do the other amendments apply to only federal, but not state, concerns? I was always under the impression that a state law couldn't supercede an amendment to the Constitution.

Mefisto is walking a very fine line here. He is arguing that for Thomas, to impose these restrictions on state power is hypocritical, because as an originalist he should (a) recognize that the 5th Am. didn't even apply to the states prior to the 14th Am., and (b) reject the theory that the 14th Am. incorporates those rights.

But it's one thing to argue Thomas is a hypocrit when it comes to incorporation. It's quite another to assert that he's right that the Bill of Rights shouldn't apply to the states. I do not take Mefisto to be making THAT claim (indeed, I'd be stunned if he was), so he must concede that Thomas is substantively right (if inconsistent) in saying the Takings Clause applies to New London/Connecticut. Then we get to the point of how to interpret it.

From Thomas's opinion:

The public purpose interpretation of the Public Use Clause also unnecessarily duplicates a similar inquiry required by the Necessary and Proper Clause. The Takings Clause is a prohibition, not a grant of power: The Constitution does not expressly grant the Federal Government the power to take property for any public purpose whatsoever. Instead, the Government may take property only when necessary and proper to the exercise of an expressly enumerated power. See Kohl v. United States, 91 U.S. 367, 371—372 (1876) (noting Federal Government’s power under the Necessary and Proper Clause to take property “needed for forts, armories, and arsenals, for navy-yards and light-houses, for custom-houses, post-offices, and court-houses, and for other public uses”). For a law to be within the Necessary and Proper Clause, as I have elsewhere explained, it must bear an “obvious, simple, and direct relation” to an exercise of Congress’ enumerated powers, Sabri v. United States, 541 U.S. 600, 613 (2004) (Thomas, J., concurring in judgment), and it must not “subvert basic principles of” constitutional design, Gonzales v. Raich, ante, at __ (Thomas, J., dissenting). In other words, a taking is permissible under the Necessary and Proper Clause only if it serves a valid public purpose. Interpreting the Public Use Clause likewise to limit the government to take property only for sufficiently public purposes replicates this inquiry. If this is all the Clause means, it is, once again, surplusage. See supra, at 3. The Clause is thus most naturally read to concern whether the property is used by the public or the government, not whether the purpose of the taking is legitimately public.

So in my opinion, when Thomas says "if the government owns, or the public has a legal right to use" the property, he is merely covering his bases for cases where the public is implicitly using the property, even if the public does not have actual use of the property. To use one of his examples, when the government builds a fort with the seized property, the public uses the fort for protection even though individual members of the public don't have use of the cannon for shooting their enemies.

Reading this paragraph, I would say that if the government seized property and leased it to a private entity, Thomas would require that the use to which the property was put would be a valid public use -- by a mill, or a common carrier railroad.

I would say that if the government seized property and leased it to a private entity, Thomas would require that the use to which the property was put would be a valid public use

If that's what he means, then he is opening the door to a whole new body of constitutional law on what constitutes a "valid public use" in situations where the government retains ownership. Indeed, it is not hard to imagine a whole line of authority in which the Court has to answer hard questions about the nature of "ownership" and which sticks in the bundle of property rights must be retained by the government, and for how long, for the condemnation power to be valid.

The Takings Clause is a prohibition, not a grant of power:

IMO, Thomas is fundamentally wrong on this point. The Takings Clause is most fairly read as a grant of power, which is conferred simultaneously with the conditions governing its exercise: just compensation be paid, and a public use be served.

Zach, you've come up with a creative reading of the situations Thomas had in mind, but it's really a stretch. He shouldn't need the "owns" clause to cover forts, because there is no doubt that a military facility constitutes a "public use" regardless of ownership. There is certainly no need for every "public use" to be available to the public indiscriminately. All he had to say was "used by the public or the government," as he did in the passage you quoted. It doesn't explain the additional, separate "ownership" language.

Moreover, Thomas's reading of the Necessary and Proper Clause (for which he cites only his own concurrence in Sabri and his dissent in Gonzalez) is NOT the law.

Sam is of course right in 140 about what I'm saying. Just so it's clear:

1. John was complaining that the Founders never intended the 5th A to apply this way.

2. IMO, if we're going to worry about what the Founders believed, then we should be consistent about it. If we are consistent, then the ruling would have come out the same way.

3. I do NOT believe we are restricted to what the Founders believed. This means (a) I'm willing to apply the 5th A to the states (contrary to their intent), and (b) I don't feel bound by what the Founders meant in the 5th A.

All I was trying to do was correct John's misapprehension that Kelo was some "new" result. I was reacting to John's concern about the Founders, not expressing my own.

Turning to the last part of it, it always struck me that the clause does not say: nor shall private property be taken EXCEPT for public, and only then for just compensation". Rather, it says that property shall not be taken, unless the government pays for it.

This is obvious now that you mention it, but I never noticed it before. In this sense, "public use" is not a restriction at all, only compensation is.

That FMV has become the consitutional equivalent of "just compensation" seems to me to be above all else a policy decision and not an interpretive necessity. It's a choice that supports capitalist expanionsist policies for better or worse. But is it "just"?

Of course it is---it's "just" fine for developers and their kept politicians.

Most everybody here lately has been convincing about the correctness of the court's decision in principle, meaning the principle of judicial restraint, properly understood. And it would indeed be much preferred if New London had settled this whole affair more justly on the local level--by taking the woman's age into consideration, for example, and quadrupling her compensation, taking the extra money directly from the developer's pre-tax profit.

But the flip side of "good cases make bad law" is often that courts just watch and tut-tut while peoples' lives get arbitrarily destroyed by legislative fiat, through no fault of their own, a judicial version of the old cliche "the operation was a success, but the patient died."

I'm not sure what can be said about this, other than to note once again the overwhelming force of money and influence in our best of all possible societies. I can only hope that the next time it will be one of the majority justice's homes which are deemed expendable for some "increased tax base" development, just to see how they would like it.

I'm not sure what can be said about this, other than to note once again the overwhelming force of money and influence in our best of all possible societies.

Two things. First, when conservatives on the Court rage against "made up" rights (like the right to privacy), one answer that is sometimes given is that the political system doesn't adequately protect the rights of unpopular minorities, and thus the Court must step in to balance the disproportionate power. The Scalias and Thomases of the world don't much like this argument when it comes to abortion or sodomy laws, so they shouldn't really be heard to trot it out when it comes to the property rights of the unfortunate, unpowerful few who get booted out at the behest of the politically connected. (I think this is a deeper, and more disturbing, inconsistency than the originalism/incorporation one Mefisto has discussed.)

Second, here's another example of what Andy is talking about. Here in Louisville, there is a plan on the drawing board to build two new bridges over the Ohio River, connecting Louisville and S. Indiana. One is to go downtown. Not really much controversy over that one.

The other, however, is to go on the East End. On the Kentucky side, that would go through the large estates held by some of the richest and most influential people in Louisville. They have managed to force the planners into a FAR more expensive design option, pursuant to which the access roads leading up to the bridge itself will go underground -- a tunnel, in other words -- so their pristine estates are left untouched. It's absurd, but it's the only way that the local politicians (who depend on these fat cats for contributions) would back the project.

But my point remains: bad local governance is not the same thing as a constitutional violation. If it were, the Supreme Court would have 1,000+ cases a year instead of the under-100 they take.

Sam, I know nothing about Louisvillle. But, it does seem theoretically possible to me that putting a bridge into one of the richest neighborhoods in town could have an adverse effect on property values and hence the tax base. It might make sense to do something more *aesthetically* pleasing for this reason. If that were true, the interests of the fat cats and the local pols and citizenry would be aligned.

If that's the case, then do the other amendments apply to only federal, but not state, concerns?

Its also largely moot because the Connecticuit Constitution has the exact same wording. If its a violation under Federal Constitutional Law it should be a violation of state constitutional law. The state constitutuional provision was meant to parallel the federal one. In fact, Connecticuit's standard of review is that they will look to Federal constitutional rights as the basis for decision, unless the moving party claims they have MORE rights under the state constitutuion. IOW, Connecticuit jurisprudence has already stated you get everything the BoR gives you PLUS whatever else we have carved out.

A rescript or denial on Federal grounds from any point in time would change the state's interpretation of the state constitutuion. Connecticuit moves in step with federal jurisprudential changes.

You are actually asking the Court to do a far more discerning review of 5th Am. takings.

No, I'm asking the court not to roll over and play dead on its responsibility for interpreting "public use."

when that is a question that the political branches are far better equipped to answer.

The political branches didn't answer it. A quasi-administrative body made the determination. They made the determination based on what sounds like specious and pecuniary reasons. And after they made the decision, no one in the political arena be it executive, legislative or judiciary made any review on the validness of public use. The only group that took evidence on this point and was willing to take on the responsibility of a decision determined that some of the lots were not valid public uses. What the Ct.SC and the SC did was take away that court's power to even hear evidence on the matter.

The Court would inevitably get into the business of making policy decisions over which uses it likes, probably based on one economic theory or another. To paraphrase Justice Holmes, "The [Fifth Amendment] does not enact Mr. Herbert Spencer's Social Statics [or any other particular economic theory]." Once the Court starts balancing what sort of use has a sufficiently strong justifiction to take what sort of property, there is no end to the uncertainty and mischief it can create.

That is very well articulated, but if the court refuses to take its responsibility to determine what is a public use, then we know what kind of uncertainty and mischief will occur. A group of businessmen who have not been elected by any population can take your house and give it to a collegue just as long as his friend promises to pay $1 more in taxes (or in this case about $15,000 more in taxes).


* What about a property being used by the owner not as a residence, but to provide residences to others (an apartment building)?
...

NH has the test for all these occurences. In fact, every scenario you have described has been decided in at least one state or another. In almost every case it depends on how blighted the property may be.

In fact, many states have statutory schemes that require the court to make the determination that you do not wish them to make.

Then your complaint is with the Connecticut Legislature, or with its citizenry. Maybe with its Supreme Court, although whether there is a basis in state law for the state Court to act is a question I haven't researched. Perhaps the democratic process in Connecticut has reached an unfortunate result, or even a deeply unfair one, in what it allows in the state's exercise of its eminent domain power.

I think I've stated many times that is where my primary complaint lies, and I cannot say the SC reached the wrong conclusion. Nevertheless, the SC was empowered to reach a different conclusion that would have been prudent and allowable under the law.

I don't think efficiency and federalism come into play. Efficiency is a nonstarter because that event is occuring in other states. Federalism is a nonstarter because the court does have power to determine the meaning of "public use." How much deference they give to the legislature is up to them. But in this case, the deference is not to the legislature.

But the Constitution doesn't require states to be wise or even just. It requires them to pay compensation for taking property, and if they are willing to pay, it gives them very wide latitute to decide what are the valid reasons for using this power.


It requires them to pay compensation for property. It also requires that property to be put to "public use" There is nothing in the history of the SC or the current decision that does not say that the requirement of "public use" does not exist.

Sure we can reparse the amendment and try to decide whether it should be a requirement. But that is not probative to our conversation. The court has power to interpret "public use." It has the power to draw the line on how much review it will give to public use. Please note, the court would not still allow an a priori A to B transaction. That is in the majority opinion. The court does retain the right to interpret these words. They just chose not to apply it in this case, and this is a case where it should have been applied (IMHO).

The result would be that governments and the private developers with whom they are working would simply craft the deals so that government would retain ownership.

I don't understand this interpretation. The developer was in a leaseback arrangement.

it does seem theoretically possible to me that putting a bridge into one of the richest neighborhoods in town could have an adverse effect on property values and hence the tax base.

The expense of building this boondoggle tunnel is stratospheric. And the local pols haven't even tried to defend it on grounds of tax base implications; they've just shrugged their shoulders and said, basically, "We're doing it this way because that's the only way it's politically viable."

The political branches didn't answer it. A quasi-administrative body made the determination.... And after they made the decision, no one in the political arena be it executive, legislative or judiciary made any review on the validness of public use.

Then, as we discussed earlier in this thread, the onus is on the political branches to change the rules by which such administrative bodies act. Ultimately, it's still up to the political branches, and to them you should direct your complaint. Or if not to them, then to the CT. Supreme Court (to which I acknowledge you are directing some of your fire) for not properly interpreting what the political branches have already done to guide those administrative bodies. But it's NOT a matter for the U.S. Supreme Court, in any case. As you put it, BL:

In fact, every scenario you have described has been decided in at least one state or another.

And that is precisely where it ought to be decided, as each state decides how to prudently exercise its constitutional authority.

This is obvious now that you mention it, but I never noticed it before. In this sense, "public use" is not a restriction at all, only compensation is.

But this case and all cases that precede it still say that "public use" is a requirement. As Sam would say, That is not the law.

The result would be that governments and the private developers with whom they are working would simply craft the deals so that government would retain ownership.

I don't understand this interpretation. The developer was in a leaseback arrangement.

Which is one reason I think Thomas's dissent was deficient. He says at one point (# 130) that if the government owns the property after the condemnation it satisfies the "public use" requirement. But then he never addresses the fact that, in this case, the government would have continued to own the property -- under his own test, satisfying the public use doctrine.

Now, if you take the position that government ownership is NOT enough, then sure -- playing games with the form of the deal would make no difference. But if Thomas meant what he said in the passage I quoted, then the form of the deal should make a very big difference (even though it evidently didn't to Thomas in Kelo.)

That is very well articulated, but if the court refuses to take its responsibility to determine what is a public use, then we know what kind of uncertainty and mischief will occur. A group of businessmen who have not been elected by any population can take your house and give it to a collegue just as long as his friend promises to pay $1 more in taxes (or in this case about $15,000 more in taxes).

The state has to pay something (FMV or *just* compensation) for it--and somewhere along the line I assume that the public officials have to have determined whether to fund such purchase. Right?

I suppose the business folks could give it to the friend for nothing but only if they had been delegated that authority by the public officials. I suppose they could give it to the friend for less than the cost of taking the property, perhaps by agreeing that the expected long term public benefits are greater than leaving it with the current owner. I agree that there is room for abuse there. I also agree that the court's need to make sure the purported public use is legitimate. But I think there is more public involvement and oversight than just a bunch of private businessmen making private decisions under the takings clause. If no one exercises that public power appropriately, the officials are probably derelict in their duties, but the consitutional remedy for that is not a S. Ct. case but vox populi and such.

But my point remains: bad local governance is not the same thing as a constitutional violation. If it were, the Supreme Court would have 1,000+ cases a year instead of the under-100 they take.


I'm not asking the court to determine if the solution is the most feasible solution of all possible solutions. I'm asking the court to make inquiry into whether constitutes a public use.

The lower court made the necessary findings of fact to conclude that certain parcels would not be a public use. The court in its desire to get philosophical gave no deference to these findings at all.

But the flip side of "good cases make bad law" is often that courts just watch and tut-tut while peoples' lives get arbitrarily destroyed by legislative fiat, through no fault of their own, a judicial version of the old cliche "the operation was a success, but the patient died."


And that is precisely what happened here, except it wasn't even a legislative fiat, it was a quasi-executory fiat. It was your neighbor who donated money to the mayor's election campaign who never was voted on by any individual taking away your grandma's lifelong home.

And that is the problem. Scalia once said something to the effect of "innocence should not overturn the proper process of an adjudication of guilt"

The SC has gotten very hubristic about their intellectualism and tend to abstact these questions to a level of philosophy that divorces themselves from the problems of the populace. Ok, maybe they are smarter than me.

But at the end of the day, here is the philosophical and polity question in front of them: Choice A: We subject the courts to making more of a review of what constitutes a public use. Choice B: We allow citizens to be defeased of their property rights based on no justification. That is the super intellectual policy choice that must be made. That is the tough decision. Either decision is supportable under the body of existing law.

But this case and all cases that precede it still say that "public use" is a requirement. As Sam would say, That is not the law.

Agreed. It is rather an irony for the textualists, though.

Now, if you take the position that government ownership is NOT enough, then sure -- playing games with the form of the deal would make no difference. But if Thomas meant what he said in the passage I quoted, then the form of the deal should make a very big difference (even though it evidently didn't to Thomas in Kelo.)


I definitely take that position. "Fee" and "use" have entirely seperate meanings in the body of property law. They are not even close to being analogous. I wish they didn't, then we wouldn't have to worry about restrictions, easements, licenses, and what not.

The state has to pay something (FMV or *just* compensation) for it--and somewhere along the line I assume that the public officials have to have determined whether to fund such purchase.

They determined to fund "a" purchase, not necessarily "the" purchase(s) in question. The closest there was of any involvement was the approval of the plan, which again may not have been done by elected officials. I don't know enough about local laws of New London.

I suppose the business folks could give it to the friend for nothing

I'm not questioning the amount of compensation offered by the city. In fact, I do not know what that compensation and it was never raised in the case.

But the court states is will not allow a strict A to B transaction to occur. Yet, I see nothing that would prevent this occurrence. As Sam would state, all you have to do is change the structuring of the deal.

In fact, the only case where I've seen that an A to B was not allowed is when the city was overtly bribed for the A to B transaction.

I saw we take Retardo's house and turn it into a public library. It would be of much better use that way.

Judging from all the books he has, it would be easier than you think. :-)

Indeed, that was my point. Sort of like my next idea of confiscating Bangkok9's pad for a public brothel.

And moreover, Scoriano, here is where we land. There is no barrier whatsoever that will prevent the government from taking your land. The court will not hear a public use argument.

How can you be democratic process keep a well connected developer from exercising that right. The only thing you can do is legislate a prophalactic measure. And that certainly doesn't help those who never went to law school and reasonably believed their government would protect them from a land grab.

I bet even half my firm hasn't read Kelo or know about the issue. Even those trained in the law might not know that its necessary for them to legislate a limitation.

But this case and all cases that precede it still say that "public use" is a requirement. As Sam would say, That is not the law.

Except that traditionally, the limit on "public use" was that, so long as the government did it, by definition, that was public use, unless it was totally irrational to say that the public got any benefit: "The "public use" requirement is thus coterminous with the scope of a sovereign's police powers."

So it was never really a bar, at least at the federal, constitutional level. If it was not read out textually, it was read out practically.

Soembody shoudl petition that the houses of the 5 Supreme Court Justices that voted for the law be appropriated for public use.

There is no barrier whatsoever that will prevent the government from taking your land.

That is a nice rhetorical flourish, but also pretty obviously hyperbole. There is the obvious fiscal barrier of having to pay just compensation. One of the differences between a totalitarian regime (Zimbabwe) and the United States is that Mugabe can order people's homes bulldozed, and their land confiscated, without worrying for even a split instant whether his government can afford to pay the compensation. That is not true here -- unless, of course, you think the courts are going to abdicate their role in determining the compensation that is due a property owner.

I want to try to uderstand this before I imagine myself being at risk here. My house is a house. It is surrounded by other houses, none of which are zoned commercially, for at least a mile in every direction. Now, is my house at risk of taking for being someone else's house or backyard? I take it the answer is no.

Could my house be taken to become a parking garage? I take it the answer is yes.

I am theoretically but not practically concerned about the latter for me because of the charecterisitics of my own town. I am concerned about it for other folks in other areas, however. If governments go far with this power, it has to have adverse consequences for the housing market. If it becomes known that buing a home in New London is to be at the mercy of the takers, housing prices should incorporate that risk for that town. If that risk is so pervasive that a large discount occurs, the tax base will be adversely affected. it might seem that takings can't go too far without having materially adverse consequences that will hold them back. In a perfect market, supply and demand would work out things over time. But the dislocations will be spectacular in the real world. And, worst of all, I hope I am not chicken little about thts but I fear that without an informed and active citizenry, goverment officials and their commercial supporters will *take* without regard to the long term economic consequences for the housing stock and revenue base but only for their narrow self interests. And, they will tend to do so in areas where the public is least able to fend for themselves.

Man, that does sound chicken little. I hope I am being naiive.

I fear that without an informed and active citizenry, goverment officials and their commercial supporters will *take* without regard to the long term economic consequences for the housing stock and revenue base but only for their narrow self interests.

Without an informed and active citizenry, that is probably the least we have to worry about from our elected officials.

2. IMO, if we're going to worry about what the Founders believed, then we should be consistent about it. If we are consistent, then the ruling would have come out the same way.

I agree we should be consistent, but what evidence do you have that the SC would have ruled the same way 200 years ago? I can't imagine them defining "public" in this way.

Now, I'm not and don't pretend to be a lawyer. I am a student of history, though, and will keep an eye out for evidence that agrees with what you're stating.

3. I do NOT believe we are restricted to what the Founders believed. This means (a) I'm willing to apply the 5th A to the states (contrary to their intent), and (b) I don't feel bound by what the Founders meant in the 5th A.

Then why do we need the Constitution?

I agree we should be consistent, but what evidence do you have that the SC would have ruled the same way 200 years ago? I can't imagine them defining "public" in this way.

In a case called Barron v. Baltimore (1833), the Court held that the Bill of Rights did not apply to actions of the states. Thus, the 5th A (which is part of the Bill of Rights) did not apply to the states. Without that Amendment, there was no basis for the Court to rule 200 years ago. I don't believe there is any controversy over this; Thomas acknowledged it in his dissent.

Then why do we need the Constitution?

This is a complex issue. I'll give you the short version (it's also the version of Hamilton and Marshall, but very much opposed by, say, Jefferson).

The Constitution contains a number of phrases which state broad general principles, not specific rules. The reason it does that is that the Constitution is written to last a long time. It's not like a statute, which can be amended regularly.

It's up to each generation to interpret those principles according to its understanding of them. That understanding will, of course, be affected by both history and precedent.

There are lots of reasons why this is a good practice. Among them are the following:

1. Freezing the Constitution as of 1789 is impractical in the extreme. We'd have to amend it constantly as conditions changed, but the amendment process is cumbersome and undemocratic.

2. We don't have any way to know what the Founders intended in many cases.

3. Even when we do know their intent, they often don't agree. For example, Hamilton and Jefferson violently disagreed with each other. There's no way to choose between them.

4. There's no reason to believe the Founders generally intended for the Constitution to be interpreted according to their intent.

5. I view the Constitution as being in a constant state of ratification as each citizen comes of age and acknowledges its authority. With this understanding, it only makes sense to give it a modern interpretation.

This does not mean that we ignore the document. We have to start with the text. The words are flexible, but not infinitely so. It constrains what we can reasonably dispute even if it doesn't define it precisely. When the language unambiguously prevents an action, then we follow the language or amend it. But when those general phrases do give us scope, it's fair to recognize that.

"In a case called Barron v. Baltimore (1833), the Court held that the Bill of Rights did not apply to actions of the states. Thus, the 5th A (which is part of the Bill of Rights) did not apply to the states."

That's sort of what I thought. I was always under the impression that George Mason's original intent was that the BOR applied to the states, but that the Federalists on the courts said sabotaged this. Still, Barron is at a late date. Was there not an earleir case Marshall decided that established the (bad) precedent?

***

I like what BL came up with on the property rights' heirarchy issue.

***

I dont know what Scoriano thinks I like this decision. I don't, but the alternative was worse.

"But, it does seem theoretically possible to me that putting a bridge into one of the richest neighborhoods in town could have an adverse effect on property values and hence the tax base."

Excellent rationalisation! The local Chamber of Commerce probably couldn't do better.

"3. Even when we do know their intent, they often don't agree. For example, Hamilton and Jefferson violently disagreed with each other. There's no way to choose between them."

The hell there's not. When in doubt, choose Jefferson.

Now, is my house at risk of taking for being someone else's house or backyard?

Not be eminent domain, you may have a title issue on a portion of your land but that would be a different situation.

Could my house be taken to become a parking garage? I take it the answer is yes.


Where do you live? There are about seven states that would protect you. Unless your property became blighted, i.e. you really failed to upkeep, the answer would be no. In the other 43 states, this decision does pave the way for the state to take your property for this purpose.

There is the obvious fiscal barrier of having to pay just compensation.

How is that a barrier at all. We are talking about when commercial developers are in place that want your property. In every one of those situations, there would be financial backing available.

If a developer came to me right now and offered me FMV for my house, the answer would be no. Because in addition to the compensation, I've got huge transaction costs for moving; I've got transaction costs for financing a new home purchase, and it would probably cost me more to obtain a property that is just as convenient as my current property. I may have to send my children to different schools. I may not be able to find the mix of yard and house size that I desire.

Real property has always been considered unique, and the fact that the developers want it to better exploit it probably means any cacluation of FMV is undervaluing what I could do with the investment of keeping my home.

And I'm not even talking about my parents home, where the land has been in my family for over 150 years, where many of my greatest life experiences have taken place, as well as my father and his father and so on.

Now, all of a sudden, we want to treat real property like its a chattel good or service where the owner can be made whole based on what a real estate appraiser HIRED BY THE STATE says the property is worth.

Its not hyperbole at all; there is no limitation on the state using its eminent domain power. None. And while I don't think the right to own property is as sancrisanct as Nieporent, that does not mean I don't think the right does exist and there should be limitation on the states power.

The SC had a jump ball. The law would have let them go either way, and IMHO, they moved in a bad way for polity; they moved in a bad way for individual rights. They allowed a loophole in the law that paves the way for more land grabs.

Except that traditionally, the limit on "public use" was that, so long as the government did it, by definition, that was public use, unless it was totally irrational to say that the public got any benefit: "The "public use" requirement is thus coterminous with the scope of a sovereign's police powers."

So it was never really a bar, at least at the federal, constitutional level. If it was not read out textually, it was read out practically.


I don't see this. A to B transactions were still not allowed. Pragmatically, this is an A to B transaction. Even if it were a 99 year lease, its still an A to B transaction, because use means use not fee. The court differentiated A to B transactions to allow someone else to run or manage the hospital. Up till now, they did not differentiate it to allow a land grab by a greedy developer.

I was always under the impression that George Mason's original intent was that the BOR applied to the states, but that the Federalists on the courts said sabotaged this.

Not George Mason, Madison. Madison was the one who introduced the BofR and he wanted it to limit the states also. Congress wouldn't go along.

It's pretty clear that the BofR was not intended to apply to the states. This wasn't a matter of "Federalist sabotage" -- the Federalists would have supported more restrictions on the states -- this was consensus.

When in doubt, choose Jefferson.

You don't have to agree with Hamilton to recognize that he understood the issues better than anybody but Madison. I was being generous in treating Jefferson as a Founder. He wasn't, really, since he was in France when it was written and ratified.

"And while I don't think the right to own property is as sancrisanct as Nieporent, that does not mean I don't think the right does exist and there should be limitation on the states power."

I agree. MY disagreement, philosophically, is that this right depends on the nature of the property and the nature of the owner. Also, and more strenuously -- i.e., where I get very offended -- is when this right is deemed *equal* to the rights protected in the First, Fourth, Sixth, and Eighth Amendments (and in the equivocation they attempt, therefore, is a *cheapening* of the human rights explicitly protected by the other amendments). It is not equal, nor does the constitution, in my opinion, support such an equalisation under any reasonable interpretation, "originalist" or not.

"Not George Mason, Madison. Madison was the one who introduced the BofR and he wanted it to limit the states also. Congress wouldn't go along.

It's pretty clear that the BofR was not intended to apply to the states. This wasn't a matter of "Federalist sabotage" -- the Federalists would have supported more restrictions on the states -- this was consensus."

No, I'm talking about the original arguments for it, in 87, not in.. 91 (?). IOW, when it was tabled. It's been years but I'm pretty sure I got this idea from the anti-Federalist papers, but maybe not.

Also, yeah, I know that the Federalists in theory should have supported more restirctions on the states, but it was my understanding that it was the proto-Republicans who had actually most strongly advocated a strong Bill of Rights and the Feds who had demurred.

"I was being generous in treating Jefferson as a Founder. He wasn't, really, since he was in France when it was written and ratified."

True, but my feelings are that when Madison was a radical, which was not very often, he was effectively a ventriloquist's dummy for Jefferson. That Hamilton understood the issues is undoubtable; that he was the worst sort of cynic and, philosophically, the antithesis of democratic ideals also is undoubtable. Don't forget, before he was killed he had slagged the constitution as "rubbish".

No, I'm talking about the original arguments for it, in 87, not in.. 91 (?). IOW, when it was tabled.

Ah, I'd have to go back and check.

my understanding that it was the proto-Republicans who had actually most strongly advocated a strong Bill of Rights and the Feds who had demurred.

True, and that's why it only applied to the federal government, not the states.

I dont know what Scoriano thinks I like this decision. I don't, but the alternative was worse.

Not me, at least I did not mean to state any such view. I don't really have any concern over anyone's view of the outcome of this case. Sorry, if I even implied that. I only quoted you to use it as a launching pad to discuss the valuation issue, which I find troubling not least because I don't see what's *just* about it (you would think the strict constructionists would go there, but then literalism and not dispensing justice comprises most of their toolkit).

Where do you live? There are about seven states that would protect you. Unless your property became blighted, i.e. you really failed to upkeep, the answer would be no. In the other 43 states, this decision does pave the way for the state to take your property for this purpose

NJ. FWIW, it was pretty blighted when I bought. Like BL, I just don't want to sell for FMV--it does not capture the value to me of my home. And if some developer wants my house for commercial applications, I want an equal opportunity to pursue the project and sell to the highest bidder--leaving aside what courts say they mean, is it really due process and equal protection to take my home without giving me an equal opportunity to commercialize. If the town is going to permit commericialization, then it is taking both my home and my opportunity to commericialize. Apparently, it only has to pay for the former and not the latter. I suspect the courts have dismissed this, but that seems to use the negative of the term in the Vth Amendment, i.e., it is *unjust*.

Excellent rationalisation! The local Chamber of Commerce probably couldn't do better.

Well, I don't know Louisville from Mars, but if it is anything like NJ, the local CofC usually is more pro-development than wealthy homeowners that are more restrictive regarding development. My point only being that the theoretical alignment of the interests of the rich homewoners and the CofC in such a case would be based on a rationale that if true (only Sam or others there can tell us for sure), actually serves as a reasonable compromise--project gets done, homewoners are not pissed, nor are property values and the related tax base harmed. A declining tax base would not see to help anyone, could it?

I don't see this. A to B transactions were still not allowed.

That was essentially the only exception. And it was only because nobody made a good argument as to why it was in the public interest to allow it.

Then they did. First in Midkiff. Now in Kelo.

So long as you can articulate a public purpose that squeezes past the smell test, you are through.

Then they did. First in Midkiff. Now in Kelo.

That is the point. The court could have distinguished Midkiff. They did not. That doesn't make them idiots; it doesn't make them hypocrits, but as a matter of polity, I am not happy with the result.

And this is a matter of polity. There was no "right decision"; there was just a choice between two bad things.

So long as you can articulate a public purpose that squeezes past the smell test, you are through.

Which could probably be done by my 7 year old son. Short of direct bribery, I do not see any limitation on the state in any context for exercising their eminent domain power.

The only thing that can be done is to craft new legislation that does limit that power. And I think its highly inefficient to let so many people suffer so much harm to preserve a process that need not be preserved. Because when you do pass that legislation, the court still must arbitrate the basis on the limitation of the public domain right. And if you don't pass that legislation, a fundamental right is being lost.

Short of direct bribery, I do not see any limitation on the state in any context for exercising their eminent domain power.

Yup. Unless you can demonstrate actual dementia, the legislature will pretty do want it wants. Very few laws have ever been overturned under the "rational basis" test, especially as the test is not, whether the legislature actually had a rational basis, but whether a rational basis could be constructed.

but whether a rational basis could be constructed.

Yup, I think my prof called it the janitorial theory of con law. If a lowly janitor (his words) could think of a reason, it passed muster.

BL post #100 was excellent. I agree with the conclusion:

So in the end, the question is really about how much of a Constitutional right do we have as a landowner.

***

I read through half of the courts posts in this thread, and didn't see anyone talk about O'Connor's position that this opens up the door for corruption at the government level.

While I think it's easy to see this happening (I'm always reminded of that scene in Shawshank with the cake), is it strange that a Supreme Court Justice would say so (no idea, just asking)?

It's almost like she's saying that this decision could be livable, if all the checks and balances are in place. But, she understands the corrupt world we live in (is she from NJ by any chance?), and doesn't trust the local government with that much power.

***

Carry on.

FWIW, a long piece in today's New York Law Journal defending the Kelo decision.

'Takings' and the Court

Despite Alarmists, 'Kelo' Decision Protects Property Owners and Serves the General Good

By John R. Nolon and Jessica A. Bacher
New York Law Journal
June 29, 2005

NJ taking

They took this guy's house:

Later, he would discover the city set aside $14,730 as compensation for him, then turned around and sold the lot for $60,000 to developer Wayne Alston, a former city councilman who went to prison in the 1990s on corruption charges.