Friday, July 22, 2005



Since the Kelo decision is both topical and controversial, I thought that it might be a nice place to start.

This case concerns a hard-luck city decided to build a commercial park with the goal of bringing more business, jobs and tax revenue into the region. The park was designed with a major corporate tenant in mind. In order to build the park, the city had to purchase a fair amount of land from the folks who currently owned it. In most cases, a deal was worked out, but in a few cases, the owners refused to sell. The city pulled out its “eminent domain” card and sought to take the land, for public use, with just compensation.

For those playing at home, eminent domain is outlined (in reverse) at the end of the second amendment

“…nor shall private property be taken for public use, without just compensation.”
Kelo and others challenged use of eminent domain and the case eventually wound up before on the Supreme Court of the United States.

To state my bias up front, I sympathize with both sides of the decision, but I tend to side with the majority on this case. First, to the dissents. Justices Thomas and O’Connor wrote separate dissenting opinions, but both argued that this decision essentially eliminated the requirement that private property can only be taken for public use. First O’Connor:

“To reason as the Court does, that the incidental public benefits resulting from the subsequent ordinary use of private property render economic development takings ‘for public use’ is to wash out any distinction between private and public use of property – and thereby effectively to delete the words “for public use” from the Takings Clause of the Fifth Amendment.”
And Thomas:

“If such ‘economic development’ takings are for a ‘public use,’ any taking is, and the Court has erased the Public Use Clause from our Constitution.”
These are powerful arguments made all the more powerful by the visceral fear that what we possess is only ours at the leisure of the government. The majority opinion, written by Stevens, simply says that the state legislation, state Supreme Court and even SCOTUS decisions all allow this taking. To decide against would be to invalidate the lower courts decision and deviate from the Federal courts history.

With case law showing that non-blighted property has been found to be condemnable, and that transfers from private entity to private entity can still be within the realm of “public use” the opinion was unable to

“grant petitioners the relief that they seek, [and] the judgment of the Supreme Court of Connecticut is affirmed.”
In the end, I side with the majority because to have done otherwise would have

Several state legislatures responded quickly, drafting legislation meant to keep state governments from engaging in these kinds of takings. There are those who wish that the SCOTUS had stepped in here, but I think they were right not to do so. I guess it was just one of those cases where there ought to be a law, but there ain’t.

As always, thanks for reading,

Perhaps you should change the subhead of your blog title (see your blog options) to something like:
My collected thoughts on what currently interestc me ...

Just a suggestion.
= The Precision Blogger
I'm not comfortable with your idea that the supreme court wold be meddling in state's affairs if it ruled otherwise. This IS a constitutional issue.

However the great problem here seems to be that it is very dangerous to rule on the issue as a matter of law. I doubt the Supremes are permitted to argue that that giving the states more leeway in this case will lead to widespread payoffs and graft, but many agree that that's likely to happen!
- The precsion blogger
A day after the Kelo decision was delivered, Freestar Media LLC submitted a proposal in the town of Weare, New Hampshire where majority opinion writer, Justice Souter, owns a farm house. They requested that the town board condemn the land and give it to them, as private developers, who promise to construct the Lost Liberty Hotel in its place. Their tax revenue would no doubt be higher than the reported $2,500 that Justice Souter paid in property taxes last year. It would create employment and attract tourism. The town has a website, and an economic development committee, which has identified its two main goals: 1) Encourage the formation of new businesses, and 2) Promote tourism. However, contrary to its stated goals and the legally sanctioned purpose of economic development, the town’s board turned down the proposal.

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

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

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