Suzanne and Matt Dery’s Home
Will Be Taken from Them to Benefit
a Private Developer
The decision by the Supreme Court in the case of Kelo v. New London is terrible. Simply terrible. By a 5-to-4 vote the Court ruled that governments can take property in order to give it to favored private parties.
The advocates of unlimited “states rights” will be heartened. After all, the federal government refused to enforce a clear constitutional prohibition on the action of state and local governments, as set out in the Fifth Amendment to the Constitution:
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.
The majority opinion written by Justice Stevens states,
In affirming the City’s authority to take petitioners’ properties, we do not minimize the hardship that condemnations may entail, notwithstanding the payment of just compensation. We emphasize that nothing in our opinion precludes any State from placing further restrictions on its exercise of the takings power. Indeed, many States already impose “public use” requirements that are stricter than the federal baseline. Some of these requirements have been established as a matter of state constitutional law, while others are expressed in state eminent domain statutes that carefully limit the grounds upon which takings may be exercised. As the submissions of the parties and their amici make clear, the necessity and wisdom of using eminent domain to promote economic development are certainly matters of legitimate public debate. This Court’s authority, however, extends only to determining whether the City’s proposed condemnations are for a “public use” within the meaning of the Fifth Amendment to the Federal Constitution.
So it’s just a matter of state’s rights and prerogatives.
The dissenting opinion of Justice O’Connor is clear and straightforward:
Under the banner of economic development, all private property is now vulnerable to being taken and transferred to another private owner, so long as it might be upgraded–i.e., given to an owner whowill use it in a way that the legislature deems more beneficial to the public–in the process. 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. Accordingly I respectfully dissent.
Justice Thomas in his dissent went further:
I do not believe that this Court can eliminate liberties expressly enumerated in the Constitution and therefore join her dissenting opinion. Regrettably, however, the Court’s error runs deeper than this. Today’s decision is simply the latest in a string of our cases construing the Public Use Clause to be a virtual nullity, without the slightest nod to its original meaning. In myview, the Public Use Clause, originally understood, is a meaningful limit on the government’s eminent domain power. Our cases have strayed from the Clause’s original meaning, and I would reconsider them.
The majority’s decision is a another step toward unconstitutional statism, especially after the awful decision upholding federal power in the case of Gonzales v. Raich, which held that,
Congress’ Commerce Clause authority includes the power to prohibit the local cultivation and use of marijuana in compliance with California law.
Further Analysis and Sources: Law professor Ilya Somin in February offered his legal analysis in “Robin Hood in Reverse: The Case against Taking Private Property for Economic Development.” Richard Epstein prepared an amicus curiae brief on behalf of the Cato Institute wherein he set out out a clear case for protection of property. The heroic lawyers at the Institute for Justice argued the case.
“Hence my question, “Why the uproar?””
Simply because a lot of people realized for the first time that those bulldozers they hear in the distance could easily come for them next.
Lots of interesting discussion. I apologize that I overlooked Mr. Kennedy’s clearly formulated question above:
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How were the railroads built? The government routinely took property from individual private owners and put it in the hands of other private paries – the railroads. The argument was exactly the same then as now – it served a public purpose.
How is a privately owned railroad in principle different from a privately owned shopping mall?
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The difference is indeed not easy to articulate in distinct terms; both are, in my opinion, theft. But at least a plausible argument can be made that having a railroad brought to your town benefits everyone there (it’s weak, but it’s not crazy), whereas the idea that taking my property to give it to owners of expensive condos (or owners of a private shopping mall) is to the benefit of everyone in the community is rather more of a stretch. That means that the burden of proof was in the past higher in such cases, which meant less theft.
There is a justified uproar over Kelo because it validated what was being done in a way that effectively gave the green light to every other political authority that might otherwise have been restrained by fear of a legal contest or even by some qualms about stealing property. Those have been greatly diminished, if not eliminated. There’s plenty of reason for outrage.
P.S. Here’s a case in point from the Houston Chronicle:
June 23, 2005, 11:35PM
Freeport moves to seize 3 properties
Court’s decision empowers the city to acquire the site for a new marina
By THAYER EVANS
Chronicle Correspondent
http://www.chron.com/cs/CDA/ssistory.mpl/metropolitan/3239024
(Thanks to Robert Bidinotto for the tip.)
Kuznicki:
“But this is precisely what Kelo was litigated over–the freedom not to have to move”
So, the government won’t let you have that freedom. So *what*? The question remains what the *individual* ought to do about matters.
“You’re surrendering, while putting on a show of bravery.”
I’m not putting on any sort of show. Seriously: how brave is moving across a line on a map? How brave is selling out? How brave is deciding not to buy a lakeshore house?
“As to how the legislative front is working, I’ll let you know in a couple of years.”
All you have to do is look at history, Jason. You’re ducking the fact that we’re 200-odd years into folks trying to legislate themselves free from government. What’s the difference in *principle* that makes you optimistic about the chances here?
I don’t see any, fact is as I’ve mentioned before property rights were on the decline long before Kelo. Anyone *serious* about protecting what’s theirs needs to look outside the electorate for answers.
“I have yet to see anyone propose jere a practical method of *systemic* change,”
There isn’t one through mass popular politics: most people are happy enough. Market solutions aren’t practical either, yet, although there are fledgeling efforts out there.
I don’t know if my worldview is a philosophy or just a “philosophy”, but whether you scare-quote it or not, it’s the most practical thing I’ve seen to date.
amerrepublic asks: “Is it safe to say that Thomas is clearly the best justice on the Court?”
I would say, absolutely not. On the simple and crucial matter of habeas corpus, which has predated most of our other Constitutional rights, Thomas is the absolute worst. All the president has to do is call you a “terrorist” — whether you are a citizen or not — and you have no more rights.
http://www.aaronsw.com/weblog/001371.html
This alone should clearly disqualify him from the contest for the best judge, and place him in the running for the worst.
amerrepublic asks: “Is it safe to say that Thomas is clearly the best justice on the Court?”
I would say, absolutely not. On the simple and crucial matter of habeas corpus, which has predated most of our other Constitutional rights, Thomas is the absolute worst. All the president has to do is call you a “terrorist” — whether you are a citizen or not — and you have no more rights.
http://www.aaronsw.com/weblog/001371.html
This alone should clearly disqualify him from the contest for the best judge, and place him in the running for the worst.