Centerfield

Pardon the offtopicness but this has been on my mind. what do you guys think about the fec trying to regulate blog disclosure and such? I think it's valuable to know if blogs get money but this isn't the way to do it. what if an independent company offered an official seal that told about constributions or endorsements? solves the problem w/o the government. y'all thoughts?

Posted by: candersen at June 23, 2005 12:39 PM

To go back on topic...this ruling is abysmal!! The government can now take private property with the requirment being only that it creates new jobs and increases tax revenue. WHAT KIND OF STANDARD IS THAT?!?!?!?

Does this now mean that my $180K house can be razed if someone wants to build one for a million dollars in its place? How did this country go from eminent domain being restricted to "Public Use" to "Public Purpose" and now to this? At what point does the Court now draw the line? Is there even a line anymore?

Posted by: jdeer165 at June 23, 2005 12:48 PM

Does this now mean that my $180K house can be razed if someone wants to build one for a million dollars in its place?

Yes. It means exactly that. The right of government to increase the tax base and please and reward the wealthy and well-connected trumps your right to property.

Where do the parties stand on this? Anyone? We know where the court conservatives stand. Against. Apparently state-sanctioned theft is just fine with the other justices.

Posted by: Tully at June 23, 2005 12:55 PM

Well I'll never generate more tax revenue than a Super Center. This decision will reinforce Conservative concerns about the "over-reach" of government. I would think the Dems would be concerned about this too. A Super Center or an Industrial Waste Center generates more jobs and tax revenue than poor folks housing.

Posted by: c3 at June 23, 2005 01:20 PM

Here are the actual opinions. I agree with Professor Bainbridge that this is a terrible, terrible decision which goes a long way toward completely gutting private property rights in this country. Private ownership of property is one of the fundamental, bedrock principles of our law, culture, and society. That a government can decide, based solely on tax revenues, decide to rip property out of the hands of private owners because it "knows better" is wrong and dangerous.

"Just compensation" is not always adequate compensation. Some property is worth far more to the current owner than any amount of money. One of the plaintiffs in the Kelo case was born in the house being taken way back in 1918; the house had been in her family for over 100 years. Another couple in the suit had moved into their house when they married in 1946. The town of New London is taking their property from them in order to use it to complement a "global research facility" being built in the area by pharmaceutical giant Pfizer.

These old homes will be torn down not just for parks but to be given to private, for-profit businesses. As the dissent notes, this was not a "blighted" area, causing harm to the town and its inhabitants. These were not run-down drug dens. It was just an old neighborhood, and the powers-that-be got a pie-in-the-sky idea and decided they knew better than the free market how best to use that property.

The crux of the majority decision is well-summarized by Justice O'Connor's dissent:

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

Justice Thomas does an excellent job examining the history of Supreme Court precedents in this area and showing that many of those should be reconsidered or limited.

Posted by: PatHMV at June 23, 2005 01:53 PM

Normally I stand left of center, but this one just astounds me... How can buying riverfront property to build a hotel NOT be anything other than big business?

Yes, the city as a whole might do better, with taxes, tourists, etc, but I'm willing to wager the developer will do better still? And the home owners? Will they be "justly compensated" at the value of thier property as it is now, or as it would be with a frickin' hotel on it?

In defense of the courts, they DID say that individual states could write laws specifically limited or better defining eminent domain... of course, this is no where near a sexy enough issue for that to happen.

Posted by: Ryan at June 23, 2005 01:53 PM

This is an utter disgrace. I'll join anyone who supports immediately working towards a constitutional amendment clarifying "public use" as a much narrower idea than what the 5 justices have imagined.

This is a very pro-government ruling and not at all a conservative ruling. It's emblematic of the trend of the republicans towards supporting a big powerful government now that they've taken control of it.

It's especially troubling to me that the majority tried to couch their reasoning in terms that suggest federal deference.

I fully expect the result of this ruling to be a grass-roots effort to pass local and state-level ordinances that proscribe states and towns from expansive use of eminent domain. And I expect to join this effort. I absolutely acknowledge that eminent domain has an appropriate place in good government. But its scope MUST be narrow.

I hope this ruling is the straw that breaks the camel's back for libertarians. Who's going to deliver some semblance of liberty? Clearly the GOP has not. Which party will be smart enough to see this parade and get in front of it? My money is still on the GOP, but I absolutely would NOT count on them to deliver. This should be changed as soon as possible, and a grassroots, bottom up effort is the only way.

Man, I am more frosted than I have ever been at the supremes.

Posted by: bk at June 23, 2005 02:04 PM

Um, Brian, did you look at the votes? It was the conservative members of the Court who opposed this ruling. Rehnquist, Scalia, Thomas, and O'Connor were the dissenters, supporting the protection of private property. It was (unsurprisingly) the more liberal justices who were in favor of greater government power to take private property. I feel pretty sure that most all of the recent appointments by President Bush would have sided with the dissent, not with Justice Kennedy and the rest of the majority.

Posted by: PatHMV at June 23, 2005 02:13 PM

I'm with Ryan, except I must not be as liberal as I thought I was. I'm fully in agreement with all my conservative adversaries. Just a despicable ruling.

Legal/philosophical question: Is this judicial activism despite the supposed deference to the legislature?

And who controls the legislature in Connecticutt? Is it the GOP? I thought it was a blue state.

I never thought I would say it, but maybe GWB appointing a few SC justices might not be such a bad thing. But OTOH, it'll take more than one ruling before I really embrace that concept.

Posted by: tim at June 23, 2005 02:20 PM

BK,

Look at how the Justices lined up. It was the Conservative Justices on the Court (Scalia, O'Conner, Thomas, Rehnquist) who held the minority opinion and argued for upholding Private Property Rights and the Constitution. It was the usual Liberal subjects + Kennedy who, once again, trod all over the Constitution and Individual Liberties in deference to expanding the unbridaled powers of Government to do what they will.

This is a BIG part of the reason why I vote GOP. With more justices like Scalia and Thomas on the bench travasties like this wouldn't happen.

The Dem's are determined to appoint more justices like Ginsburg and Breyer who like to find ways to "adapt" (i.e. distort) the Constitution to justify whatever the Government happens to find political expediant at the moment. With more like them on the Bench we might as well shred the Bill of Rights and use it as toilet paper!

I can't describe how incensed I am and how just plain wrong this is. It's one of the few things that has me on the verge of civil disobediance.

Posted by: cengel at June 23, 2005 02:24 PM

Tim, Erick over at RedState pointed out that both the left and right hate this ruling because "the right sees it as the second coming of communism and the left sees it as a nefarious plot by Wal-Mart."

Posted by: PatHMV at June 23, 2005 02:25 PM

This is a horrific ruling with dire consequences. Once again, the court system has sided with "big money" against everyday citizens. Where will it stop?

This happens to affect my line of work. In fact, I currently have a project that is being held up because of similar issues. As much as I'd love for it to move forward, I just can't justify the local government forcing private citizens out of their homes to make way for a group of wealthy developers.

This is absolutely unbelievable! I'm just curious to hear the outrage on the left. Their justices are responsible for this. Unbelievable!

Posted by: AR at June 23, 2005 02:29 PM

Pat:

That is probably a pretty good, although rough analysis. I can certainly see WalMart and other corporations using this ruling to their advantage. But local governments must be licking ttheir chops.

I have watched this case fairly closely. In my community the city government condemned an area of small repair shops and warehouses (not pretty, but not blighted) in order to build a large convention center by the river. In addition to the increased public debt through bonding, they also talked our esteemed Senator Grassley, chair of the finance committee to insert $50 million in a spending bill to help pay for an indoor rain forest on the site. Total cost is $180 million. Total raised minus taxpayer's contribution is about $40 million. Total contributions last 12 months: zero.

They're still short $90 million, the local taxpayers are on the hook for the bonds, the federal taxpayers are committed, and the local landowners have been displaced. Ugly, Ugly, Ugly.

I hate this ruling for all the reasons on the left and right. It's one of the very few issues that seem to have united almost everyone. Legislation has a good chance of following in many states.

Posted by: tim at June 23, 2005 02:42 PM

Doesn't this also mean that states and trump cities and place power plants in areas that could generate greater tax revenues than a WalMart or a mom-and-pop store?

Posted by: EG at June 23, 2005 02:53 PM

Pat/Cengel,

Point well taken. I admit to being too lazy to look up exactly who appointed who. But are all 5 from the majority appointees of democrats? My general sense is that given the fact that since 1968 we've had 21 years of GOP appointments and 12 years of Democratic ones, there are probably only 2 or 3 appointees left that you can blame on the democrats. But it was a guess, so my bad if I was off.

Is the minority here composed only of GOP appointees? And is the majority then composed either of 5 judges appointed by Clinton and Carter, or are there 1 or 2 or even more GOP appointees viewed as embarassments to conservatism?

Unless this last speculation is incorrect, then my point still stands that libertarians have reason to question whether the GOP can in fact deliver the civil liberties goods, in light of this decision and the Patriot act, and other disappointments. So among the majority, how many are Democratic appointees? So far, I've been able to find that Clinton appointed 2 and apparently Carter none, which suggests that 7 of the 9 justices are GOP appointees unless we have a kennedy/or LBJ artifact. Is this wrong? Because if it's true, then 3 of the 5 majority justices are GOP appointees. That tells me the GOP has failed to deliver.

Probably it was a stretch to say this reasoning is symbolic of GOP's growing love for big government. The big love is clearly there, but maybe this SC decision was not due to this. My bad for strecthing the hyperbole.

What do you guys think of the notion that libertarians might be growing ever less willing to support the GOP as the lesser of 2 evils?

Posted by: bk at June 23, 2005 03:39 PM

While Stevens and Souter were GOP appointees, they have consistently voted with the liberal block on a wide range of issues.

Kennedy is the guy we ended up with after Bork was Borked. He tends conservative, but sides with the liberals occasionally.

So in this case, I think it's wrong to blame the GOP. God knows there is plenty they can be blamed for, but my guess is most Republicans wish all 3 of those guys had never been confirmed.

Except the big corporation, anti free enterprize Republicans. They probably love this decision.

Posted by: tim at June 23, 2005 04:00 PM

Bk, here is the breakdown:

Rehnquist = appointed by Nixon (minority)

Ginsburg = appointed by Clinton (majority)

Kennedy = appointed by Reagan (majority)

O'Connor = appointed by Reagan (minority)

Scalia = appointed by Reagan (minority)

Souter = appointed by Bush Sr. (majority)

Stevens = appointed by Ford (majority)

Thomas = appointed by Bush Sr (minority)

Breyer = appointed by Clinton (majority)

As Tim points out, Stevens & Souter were GOP appointees but seen as sell-outs by most GOP'ers as they consistantly side with the liberal position. Kennedy was the GOP compromise apointee after Bork and Douglas Ginsburg were forced out of the nomination process.... he was unanymously approved by Senate Democrats. He's a swing vote... although lately he's been disapointing Conservatives as well.

Souter, Stevens & Kennedy are case studies in why Conservatives are no longer willing to seek compromise with Dem's over judicial appointments.

Posted by: Cengel at June 23, 2005 04:23 PM

Brian: you may have met that Thomas opinion that you wanted. ;) Find it here, along with links to the other opinions. O'Connor's is so-so, but at least has the virtue of being right; Stevens', a travesty.

This sort of judicial nonsense is going to continue to happen until we inisist on THIS as a pass-or-fail no-waivers-available requirement for candidates to the federal judiciary. It isn't quite enough to have only originalists on the Court (note, for example, Scalia's concurrence in the equally terrible Raich ruling earlier this term), but even if not enough, it is a precondition if we are to return to a jurisprudence that is tethered in any way to the constitution. "The Court must be living in another world. Day by day, case by case, it is busy designing a Constitution for a country I do not recognize".

I promise I'll finish that essay on the subject this weekend.

Posted by: Simon at June 23, 2005 04:23 PM

Boy am I ever not a true believer in the pipe-dream virtues of originalism. Were it to become enshrined as the highest principle, its flaws would become apparent soon enough.

If anything, I think we need to keep making it up as we go along. Case by case. decision by decision. Action followed by reaction. Divining the will of the people as informed by both our past ideals and our present circumstances.

Let's none of us lose sight of the fact that this ruling has said that each state (and maybe even locality) has the power to tell its government how its eminent domain powers should be limited. I think we should start on this today.

I agree with O'Connor, who pointed out that this ruling has effectively declared that there are currently no bounds on what government can declare to be public use for eminent domain purposes. But it has NOT said that the people may not put bounds on this. Of COURSE we can. More than that, we MUST! It's up to each of us to find a way to correct or mitigate this error. The error is regrettable, but we have the power to correct it.

Posted by: bk at June 23, 2005 04:45 PM

bk, the problem is that a state can write any number of laws limiting the state's power of eminent domain, but what's unique about this particular case is that the city of New London essentially transferred it's power of eminent domain to the developing company.

If a corporation is rich enough, what's to stop them from buying a few congressmen, senators, or even a President, -because, y'know THAT's never been done- and using the federal power of eminent domain to trump any state laws?

Posted by: Ryan at June 23, 2005 05:03 PM

Brian,
If you want to bring up specific issues you believe to be flaws in originalism, I'll rebut those. However, I'm not keen to get into a lengthy debate about this until I've finished my essay, for lack of inclination to repeat myself, beyond saying:

I think we need to keep making it up as we go along. Case by case. decision by decision. Action followed by reaction. Divining the will of the people as informed by both our past ideals and our present circumstances.

Wrong, wrong, wrong, wrong. Not only is that a bad idea, but even if it were a good idea, that is not the Constitution of this nation. If that's what you want, you would have to throw out the Constitution and start again, because such an approach is utterly at variance with our form of government.

However, since you're a strong writer and subscriber to the Living Constitution approach, perhaps you'd care to join my sister article to Originalism, on The Living Constitution as an editor? I can't very well write the "pros" section of this article, given that I believe that the theory is utterly devoid of any pros, and riddled with holes. ;)

Posted by: Simon at June 23, 2005 05:07 PM

Brian,

As to who to blame for Souter, Kennedy, Stevens, etc., it is appropriate to place some of the blame on the Republicans who appointed them. However, you must also look at the context in which they were appointed. I won't go into all the details, but Kennedy got on the court only after the Democrats slammed down Robert Bork. Souter was appointed, well, there's a reason conservatives never really trusted George H.W. Bush, but you can't divorce the appointment from the political realities and staunch Democratic opposition at the time. If George W. nominates a good staunch constructionist or textualist, then loses the nomination to a filibuster, then is forced to resort to some "stealth", milquetoast nominee just to get some appointment through the process and accomodate the screaming opposition, is he really the one to blame for that nominee? No.

Posted by: PatHMV at June 23, 2005 05:28 PM

Pat, I disagree with that. The implication would be to excuse Bush 41's administration for Justice Souter, who has been - if not the worst Justice on the Court (which would be Justice Ginsburg, for her routine resort to international law, unratified treaties, and the power of her own imagination, all to avoid doing her job, which is to read the actual dang text of the Constitution) - a terrible Justice, consistently on the wrong side of mostly every non-unanimous question. The question should be, why didn't the administration do its homework better? With the balance of the Court at stake, why were they satisfied to make a nomination without having exposed Souter's record to microscopic scrutiny? I find it hard to believe that everything Judge Souter had written prior to his elevation was a carefull attempt to evade leaving a paper trail that might betrary his dastardly agenda to advance "The Living Constitution" on the Court. So I don't really accept the view that the President should be devoid of blame for any nominee who turns out to have been a mistake.

Posted by: Simon at June 23, 2005 05:49 PM

Pat, what you say is not unreasonable, and I myself contemplated the points you made. But it still sounds like the making of excuses. Don't forget, my point is that the GOP has not delivered. If you are a libertarian, you really should question whether they really share your views or just want your votes.

I'm not saying democrats are a better alternative, but centrists or independents might be...

Simon, I'd be happy to work with you on some sort of point-counterpoint, if that is what you are looking for. If you are thinking about format, Brill's content had a good one: each writer gets their say, within bounds of length. each other writer gets to write a rejoinder to the other's essay. Then each writer get's final say over the other's rejoinder to his original article. Email me at gooblers8@yahoo.com and remind me to check my email in tomorrow's open thread.

Posted by: bk at June 23, 2005 06:03 PM

Simon, I didn't intend to excuse President Bush 41 from all blame (that's why I pointed out there was a reason conservatives never really trusted him... I worked at The Heritage Foundation in 1989-90). President Bush was too genteel and accomodating in some matters, and of course he paid the political price for it. I don't know how much if anything it had to do with it, but I would point out that Bush nominated Souter just 9 days before Saddam invaded Kuwait.

A lot of what you see in President Bush 43 is, I believe, a direct result of George W. applying the lessons he learned from his father's political mistakes.

But that still doesn't absolve the Democrats from complicity. First, note that 9 of them even voted against Souter, because he refused to say how he would rule on Roe.

Posted by: PatHMV at June 23, 2005 06:10 PM

Tim, Erick over at RedState pointed out that both the left and right hate this ruling because "the right sees it as the second coming of communism and the left sees it as a nefarious plot by Wal-Mart."

Doesn't sound like the folks in the middle like it much either. Posted by: c3 at June 23, 2005 07:48 PM

Appalling. The importance of private property rights aside, when O'Connor, Scalia, Thomas and Rehnquist are for "the little guy," you need to pay attention to what's going on. I am truly disgusted with this ruling.

Posted by: Scott at June 23, 2005 07:57 PM

But that still doesn't absolve the Democrats from complicity. First, note that 9 of them even voted against Souter, because he refused to say how he would rule on Roe.

Which is, of course, utterly preposterous. Using Roe as a litmus test would require a candidate to preemptively negate the oath they would be expected to take should they be confirmed, viz., "I will faithfully and impartially discharge and perform all the duties incumbent upon me as [TITLE] under the Constitution and laws of the United States". 28 U.S.C. §453.

I
Absent a constitutional amendment, the legal debate over abortion ends almost before it begins. The revelation that Roe was wrongly decided requires as little as for one to engage in this simple "thought experiment": the excercise of stating precisely and specifically which clause of the constitution or bill of rights the prohibition of abortion would violate. In Griswold v. Connecticut, 381 U.S. 479 (1965), the case which paved the way for Roe, Justice Stewart was similarly flummoxed:

"In the course of its opinion, the Court refers to no less than six amendments to the constitution: the first, the third, the fourth, the fifth, the ninth and the fourteenth. But the court does not say which of these Amendments, if any, it thinks are infringed by this law." (Griswold, supra, at 527-528) (Potter, J., dissenting).

Justice Black, too, was mystified by the court's revolutionary idea that the court had developed the clairvoyance (not to say the audacity) to determine what the Constitution should say:

"[F]or a period of a century and a half, no serious suggestion was ever made that the ninth amendment, enacted to protect state powers against Federal invasion, could be used as a weapon of Federal power to prevent state legislatures from passing laws they consider appropriate to govern local affairs."(Griswold, supra, at 520) (Black, J., dissenting).

II
"What secret knowledge...is breathed into lawyers, when they become Justices of [the Supreme] Court, that enables them to discern that a practise which the text of the Constitution does not clearly proscribe, and which our people have regarded as Constitutional for 200 years, is in fact unconstitutional?". Wabaunsee County v. Umbehr, 518 U. S. 668 (1996)(Scalia, J., dissenting). The right to abort one's child is so deeply rooted in the laws and traditions of the American people that it was illegal in virtually every state for nearly two hundred years. The constitution is silent on the mater, thus, "since the Constitution of the United States says nothing about this subject", and since it is clearly at variance with the accepted traditions and legal understandings of American society, "it is left to be resolved by normal democratic means". Romer v. Evans, 517 U. S. 620 (1996) (Scalia, J., dissenting).

III
This is not in any way to say that the moral argument over abortion is thus settled. Too many years of "The Living Constitution", too many Ropers, have dulled the public ability to grasp that "unconscionable" and "unconstitutional" are not synonyms - but rather, it is to say that, politics being "the crossroads at which morality and legality collide", its resolution is a legislative, not judicial, question.

Posted by: Simon at June 23, 2005 08:49 PM

The importance of private property rights aside, when O'Connor, Scalia, Thomas and Rehnquist are for "the little guy," you need to pay attention to what's going on. I am truly disgusted with this ruling.

Scalia and Thomas are on the side of the Constitution. Where the Constitution is on the side of the little guy, you will find Scalia and Thomas at the side of the little guy. Where the Constitution is otherwise, you will not. Posted by: Simon at June 23, 2005 08:51 PM

Brian - will do. :)

When I originally started prettying up the Wikipedia entry for originalism, I started out with expanding the pros and cons, then wrote a small essay on it, then broke that into sections, then added some corrollaries and footnotes. Then I figured that it was equally important to show what the alternative to originalism is - every Batman needs a Joker - so I started trying to frame a "sister article" for "the living constitution", as to my surprise, Wikipedia didn't have one. I don't have specific preferences for how that article should be structured, beyond a desire for it to have some sort of historical perspective, and I want it to be balanced in a way that I can't make it without someone who thinks the theory is a great idea. :)

Posted by: Simon at June 23, 2005 09:01 PM

Strict constructionism? That's so 1787, Simon.

~doing best to hide feelings of disgust~

Posted by: Scott at June 23, 2005 09:04 PM

This ruling is absolutely outrageous. This is one million percent worse than anything in the patriot act. As of today there is no private property in this country. There must be a constitutional amendment to restrict eminent domain to public use only. Call your congressman!

Posted by: Alf at June 23, 2005 11:08 PM

The problem is, Alf, that the decision lets the states and municiplaties determine what "public use" is. Apparently it now includes anything likely to boost the local tax base.

Posted by: Tully at June 24, 2005 12:04 AM

Alf - there already IS an amendment that so specifies! The fifth Amendment provides:

nor shall private property be taken for public use, without just compensation.

The meaning is painfully clear, as Justice Thomas' dissent makes clear. The problem is that, when you appoint Judges to the Court who do not believe that the text has a fixed meaning, this is the kind of rulings you're going to get. The problem isn't the Constitution - the problem is that this court has essentially liberated itself from the text of the Constitution.

Posted by: Simon at June 24, 2005 12:14 AM

I'm in favor of the decision. IMHO, there are high-density and old regions where it's too impractical to build and change things. I think both the creation of Arlington Park in DFW and the new nytimes buildings are fine examples of this in action (if either action were put on the ballot in its respective city, I believe majorities would favor it). It's hard to see how a new stadium or large museum could be built in NYC without some action along these lines.

Nor do I think this is a stretch beyond the amendment's meaning - nowhere does the amendment specify infrastructure in particular. Economic development IS a "public use." Indeed, somebody pointed out that it's already been done for economic development purposes - the (admittedly unsuccessful) economic blight theories.

Can this be abused? Of course it already is. And mistaken theories like "economic blight" mean that we will see it used for deeply counterproductive ideas in the future as well.

Still, I think it's worth it. Cities must change to survive and keep their residents happy, and this IMHO is an important tool.

Posted by: Jon Kay at June 24, 2005 01:16 AM

It's hard to see how a new stadium or large museum could be built in NYC without some action along these lines

If it's a publicly-owned stadium or museum, they don't need this ruling. That was already an allowable "public use," just like public schools and public roads.

Posted by: Tully at June 24, 2005 01:23 AM

While Congress tries to decide whether to carve up the First Amendment, the Supreme Court goes ahead and guts the Fifth. Anyone still think the Second is safe? Good on ya, DC!

Appalling. Terrifying. Depressing. If anything calls out for a swift, bipartisan remedy, it's this. I got liberals next door and conservatives across the street, and as homeowners, we're sharing our rage. But I wonder whether anything really will happen. So much easier for the politicians to point fingers and push buttons and try to piggy-back all their partisan BS onto the solution. Maybe they can combine it with an abortion bill!

tim ... you must be in Iowa City/Coralville, right? I lived in Iowa for years, and I can imagine every mayor in the state is writing up condemnation orders for waterfront property so it can be used for casinos.

Posted by: pcs at June 24, 2005 02:34 AM

News for those who supported the decision in Kelo: the developers, and any private party that wants to buy land, merely had to make an offer to those who own the land. When they couldn't get what they want for the price they wanted (i.e. they were unwilling to offer a sufficiently high market price), they went to the government and asked for eminent domain usage.

That is the critical point of this case. If you don't understand this basic idea, you shouldn't be proferring an opinion.

Posted by: Scott at June 24, 2005 06:40 AM

Scott, that's only true to a point, which I suspect you know. Some people just don't want to sell. Personally, I believe they should have that right unless the public use is of a form self-evident to everyone, as opposed to a private use that could be construed to have public benefit.

But a single intransigent can stop a project. Not everyone has a price. Especially if they are old and want to stay where they have always been.

Another line of attack on this ruling that I think is appropriate is legislation to define the nature of "just "compensation. Most big investment groups putting together a large project come up with some sort of report that I'm guessing includes an assessment of the future value of the new development. Just compensation for a taking should absolutely be based on THIS number. If developers were required to compensate based on future expected value, this would put real shackles on abuse of eminent domain. And, as a corollary benefit, it might make them less sanguine in making promises about expected benefits to the public. This would be a good thing.

Government taking of someone else's property is a bad thing. So at minimum, the idea of "just" should include some sort of premium on top of current value as compensation for the taking.

Posted by: bk at June 24, 2005 08:54 AM

Tully:
> If it's a publicly-owned stadium or museum, they don't need this
> ruling. That was already an allowable "public use," just like public
> schools and public roads.

Whoops - you're right about that.

I will point out that we already frequently see "taken" land given to private companies.

I would hope that nobody will be stupid enough to do a taking on behalf of Walmart. Walmart pays very low wages, and doesn't anchor an economy (unless out in the sticks, where there's lots of land). The New York Times and medical research jobs seem like good uses of it to me.

Officials are generally slow to do takings because they annoy voters. Most plans I've seen have been thought through. A local mayor got voted out of office recently because his annexation of a neighboring region annoyed enough people to break his majority coalition. I'm sure he understood that was a risk, and was careful accordingly.

BK:
> Government taking of someone else's property is a bad thing. So at
> minimum, the idea of "just" should include some sort of premium on top
> of current value as compensation for the taking.

Amen!

Posted by: Jon Kay at June 24, 2005 09:31 AM

If you don't understand this basic idea, you shouldn't be proferring an opinion.

I realize this asn't addressed to me, but I think that's a pretty brave statement for someone who blithely dismissed Originalism (not strict constructionism, by the way - see Wikipedia entry previously linked for differentiation) not 24 hours ago, and equally implicitly, thereby accepts the alternative, the "Living Constitution", which is the doctrine which facilitates exactly the result which the majority of us - yourself included, I had thought - are being so critical of. Perhaps you could explain this seeming contradiction? Posted by: Simon at June 24, 2005 09:45 AM

PCS:

Yes, I live in IC. When the development is complete it would be fitting if all the big shots at Marriott, Senator Grassley and the local government lackeys all took a nice long swim in the scenic Iowa River. Now that would be gambling, with their health!

I gotta disagree with Jon Kay. If the city wants to redevelop an area for a higher tax base, which means transferring property from one private owner to another, then the new owner should have to pay whatever the original owner demands. That's what market value is. And if the original owner doesn't want to sell at any price, then there is no market.

Posted by: tim at June 24, 2005 09:47 AM

lol Simon you totally misread my statement above. My disgust was at the ruling, not you and originalism.

Posted by: Scott at June 24, 2005 09:55 AM

Simon - My 6/23 9:04 pm was a response to your 8:51, not your 9:01.

Posted by: Scott at June 24, 2005 09:58 AM

My ironic statement about "so 1787" was a full and complete condemnation of the idea of the "living Constitution". Hopefully you understand what so disgusted me now. I could hardly be appalled at the ruling while at the same time dismissing your POV.

Decisions like this one are tilting me to the right by the day.

Posted by: Scott at June 24, 2005 10:08 AM

OH. lol...Sorry. I think this has happened before...And there I was thinking "well, duh, that's the point". LOL

Posted by: Simon at June 24, 2005 10:32 AM

Sarcasm and irony is nearly impossible to deliver and detect on the internet -- even more so on a political blog!

Posted by: Scott at June 24, 2005 10:36 AM

Moving the usage of eminent domain to a ballot measure is an interesting concept. That would remove the power from the legislature -local, state, whatever- and to the people themselves. This would also remove the temptation of lobbyists to line the pockets of politicians and instead put the burden squarely on the shoulders of the voters.

Posted by: Ryan at June 24, 2005 02:19 PM

The NY Times thinks the decision is peachy keen.

Posted by: Tully at June 24, 2005 03:35 PM

MSNBC has a transcript of Tucker Carlson talking with the winning lawyer. What a maggot!

I think we should get a group of investors together with plans to build a mall-hotel-casino complex wherever he lives.Nothing teaches like experience...

Posted by: bk at June 24, 2005 03:51 PM

Ryan,
Unfortunately, I suspect such a move would lead to the ultimate irony of people's apathy extending even to votes which could prevent their houses being demolished. "Well, I'm not really much in favour of my house being knocked down, but I just don't think my vote will count". And then all the Nader voters can say, "well, I hate the idea of my house being knocked down to make way for a nine-lane highway, but then again, I hate the decor in my house, so I'll just cut off my nose to spite my face, if that's okay with everyone else", while their neighbours are all staring daggers at them. ;)

Posted by: Simon at June 24, 2005 03:51 PM

I think we should get a group of investors together with plans to build a mall-hotel-casino complex wherever he lives.

God that would be so beautiful.

Posted by: Scott at June 24, 2005 03:56 PM

why even bother with a mall-hotel-casino? Heck, I think that community needs, for the public good, a 7-11 right there in that particular spot..

think of the tax revenue!!

Posted by: Ryan at June 24, 2005 04:06 PM

Tully,

I'm going on memory here, but I think I recall that there might be a very good reason why the NYT finds this decision "peachy keen." Oh hell, let me just show off my recall skills...I found a link. Just scroll down to the bottom of this page and you'll discover why the esteemed NYT favors government seizure of private land.

Seems the NYT might be one of those wealthy developers. Isn't there a word for this in journalism? Oh yeah, I believe it's called a conflict of interest.

Posted by: AR at June 24, 2005 04:07 PM

I didn't have to search, Abel. They admit it in the editorial itself. "The New York Times benefited from eminent domain in clearing the land for the new building it is constructing opposite the Port Authority Bus Terminal."

Yep, that's what it's called.

Posted by: Tully at June 24, 2005 04:24 PM

Lol. That's what I get for not even reading the editorial...I just saw NYT/Land seizure...my mind started working overtime...lol. Next time, I'll look.

Posted by: AR at June 24, 2005 04:54 PM

That same editorial claimed the FT residents "received full compensation", not "were compensated". Way to add the "full". ed. board.

Posted by: Scott at June 24, 2005 05:16 PM

I realize that the 5th Amendment should prohibit this but the court has weakened it and the only way around this ruling is a new amendment or a new court. It seems to me that the amendment process, as long as it is, would still be shorter than waiting for justices to retire and coming up with a new case, etc.

Posted by: Alf at June 24, 2005 09:25 PM

As far as an amendment is concerned, this seems faintly ludicrous to my mind; what should such an amendment say? "It is hereby declared that the fifth amendment means what it already says"? "'public use' means 'public use', Justice Stevens this means you"? It would be the equivalent of passing an amendment to the effect that the Congress should excercise ALL legislative power - the document already says as much! That the current court has chosen to ignore the constitution is a reflection on the court, not the constitution; and thus, it is the court - not the constitition, which should change.

I can't help but feel that Newt may be on to something when he advocates impeachment under the failure to meet the "good behaviour" test of the constitution. Certainly the use of foreign law is stupid, irrelevant and potentially treasonous, but I am not yet convinved that this is within the scope of the original meaning of the term "good behaviour".

Posted by: Simon at June 24, 2005 10:26 PM

That the current court has chosen to ignore the constitution is a reflection on the court, not the constitution; and thus, it is the court - not the constitition, which should change.

Simon, you are really the Don Quixote of originalism, aren't you? You are just relentless. I totally disagree. In some instances the constitution is glib or vague, possibly for very good reasons (Like that they expected us to work out the details later) which you'd prefer to either dismiss, deny, ignore, or jam into a thimble.

What real difference could it make whether we fix this by revising the constitution substantively by composing a written clarification, or by hiring new judges to interpet acording to your rigid principles?

If anything, the written clarification would make the decision more final. Personally, I care a whole hell of a lot more about justice for everyday people than I do about fealty to a specic philosphy regarding constitutional principles. I think your zeal for originalism is causing you to lose sight of the fact that the constitution is not an end in itself. It's a means to justice for the people, as determined by the people. This is a very imperfect process, but one you'd be well served to accustom yourself to, unless you plan to start your own nation.

Posted by: bk at June 27, 2005 11:05 AM

Simon, you are really the Don Quixote of originalism, aren't you? You are just relentless.

Thankyou.

Personally, I care a whole hell of a lot more about justice for everyday people than I do about fealty to a specic philosphy regarding constitutional principles

"We are a nation of laws, not men", and justices of the Supreme Court swear an oath to administer "justice without respect to person". The intent of the framers, it seems to me, was to secure freedom from tyranny; the tools of tyranny being arbitrary and capricious government. The manner in which they did this was to create a government in which it was difficult for laws to be imposed, and impossible for laws to be proposed with the consent of the governed. This was achieved in three ways.

Firstly, the constitution was required to be ratified, by the duly-appointed proxies of the people.

Secondly, the laws made under authority granted by the Constitution were required to be passed by the House of Representatives, which was to be responsible to the people by way of frequent elections.

Lastly, the amendment of the Constitution was subject to the ratification of the people.

In this manner, the governed had the final say over the instruments of their governance. This seems an intelligently-designed system. Clearly, if there was to be any point in the ratification of the Constitution and its amendments, then they should not be redefined beyond their original meaning, as this would constitutue a de facto - and unconstitutional - amendment.

The point of Originalism is that it reserves sovereignty to the people, which was the clear intention of the Constitution. If the Constitution needs to be changed, there is a mechanism for the constitution to be changed. The Originalist constitution is actually very flexible. You don't like the death penalty? Pass a law. Nothing in the constitution mandates the death penalty. Proponents of the living Constitution like to say that they bring "flexibility", but they don't. What they bring is lazy legislation and ultimately, they bring the rule not of law, but of five unelected lawyers. If the meaning of the Constitution is to be re-interpreted in accordance with "the evolving standards of decency", it would make more sense to have a system like Britain, in which the constitution is whatever the legislature says it is. That, at least, is valid - the legislature is elected, they surely know the evolving standard of decency of the people who vote for them - and if they don't, they'll be out of a job pretty sharpish. Let them figure it out.

But anyway, all that might be a very valid system. It might even be better than our current constitution. But it is, nevertheless, alien to our current constitution, in which laws are made by the people acting through the legislature, and the constitution amendeded with the assent of the people acting through the various legislatures. Of course there is room for more than one reasonable interpretation of some provisions of the constitution. But consider Maryland v. Craig, in which the court said that the right to confrontation, a right explicitly guaranteed by the 6th Amendment, no longer exists. Did the people vote to repeal the sixth amendment? No. Or consider Kelo v. New London, in which the court said that a city could take land not just for public use, but for any use it deemed appropriate, in clear violation of the 5th Amendment. Did the people vote to repeal the 5th Amendment?

Here's the point: the requirement of changes to the constitution being ratified by the people is not to encourage change - it's to prevent it. It's to protect people's rights, to say to the government, "if you pass a law violating such-and-such a right, that law is void". The framers knew that society grows (or at least, changes), and they understood that maybe in the future, for example, there might be no need for a jury trial. So they explicitly provided a means for the people to divest themselves of their right to a jury trial. Government can't take that right away - but the people can divest themselves of it. But in Kelo, the court said: "here is a right explicitly guaranteed by the Constitution. We're voiding it". If the Supreme Court can arbitrarily - there's that word again... arbitrary. As in "arbitrary and capricious government" - void the confrontation clause or the emminent domain clause, what is stopping them from voiding other clauses of the 5th amendment? If the Supreme Court can void the death penalty by reinterpreting the 8th Amendment, what stops it voiding the other clause of the 8th Amendment?

The Founding Fathers were concerned with capricious and arbitrary government; they were concerned about being ruled, about being subjected to the whims of legislative or executive tyranny. The Living Constitution imposes all of those problems.

Posted by: Simon at June 27, 2005 06:56 PM

I think some of you supporters are missing a couple major points, as well as everyone against it who keeps quoting laws. Although keep it up, we need all the voices we can. For we need to get this issue recognized by news outlets, politicians, and individuals, for what it is, an attack on the ideas of our fore fathers.

1. These are individuals that are losing their land. Grandma's, people living pay check to pay check, families, do you forget how hard it is to move. Find storage for your items, find a place to live as you get kicked out, than find another house to buy, if you can even afford it. These people lived the american dream, they worked hard day in and day out to have a place they could call home. These are the people that our Founding Fathers were trying to protect. They recognized how hard an individual works, and how little he might keep, and they created a government whose main focus was protection, that no individual will take what you worked so hard to get. That the right of the individual is so much more important than the people who have the power to take.

2. This decision smells A LOT like socialism or communism. In those countries your rights are not protected. If the government decides that what you have will help the greater good that it gets taken. You grow the crops for the good of country, you hammer the steel for the good of the country, you milk the cows for the good of the country, and for yourself nothing...you are a cog, with no power to say "I worked for this, I decide what I'm going to keep for myself and my family".

Posted by: Roy at June 28, 2005 03:45 AM