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June 29, 2005

Comments

SB -
I happen to completely agree that the Kelo case was misguided, but I have to correct what is a pretty common misconception about the decision - Kelo did not "expand[] the eminent domain power" at all. The justifications challenged in Kelo are the same arguments that have been used by a generation of developers to seize and redevelop land for sports arenas, downtown redevelopment, gentrification, and a hundred other uses large and small. How else do you think city governments get ahold of those huge swaths of downtown land to build football stadiums on? The same arguments as were challenged in Kelo.

If you meant that Kelo was an expansion from the last time the SC ruled squarely on the question, you might be right, and so I apologize for mistaking your point. But I'm seeing a lot of comments on the right and left from people who seem to believe that the Kelo expropriation was the first time these arguments have been made by a municipality, and that Kelo signals some dangerous new trend. That's really very wrong; Kelo was the last clear chance to stop a nationwide abuse of property rights that has been underway for decades, all over the country. That chance was missed, and the beat will go on. DC baseball stadium, anyone?

No, I agree that the trend to city appropriation of personal property for 'public purpose' but not public use has been going on for a while. But this is definitely an expansion of the power with respect to what the Supreme Court has clearly said on the issue.

But this is definitely an expansion of the power with respect to what the Supreme Court has clearly said on the issue.

Got it.

I'm not an attorney but I believe I share the concerns here. I have a question and I'm sorry if it seems muddled, but consider the source.

From where do municipalities, particularly rapidly expanding small cities, derive their powers to zone land in the first place? It would seem to me that even rezoning land, and adjusting the underlying property rates upward, from agricultural to either commercial or residential use is somewhat of a "taking" if we stick to a strict reading of the Constitution.

I realize that the powers have not been granted to the federal government and are therefore "left" to other levels of government, but I'm having a problem seeing why this drift, while troublesome and perhaps not commonsensical, is not legally logical given precedent (not that I can cite precedent).

Thanks.

While I agree that the abuses of eminent domain that were ruled valid in Kelo are, well, abuses, it looks as if the ruling was a good one, constitutionally speaking. SCOTUS essentially left the decision about ED cases to the States -- one could view it as a victory for Federalism.

Of course, I imagine we would all rather that the SC had slapped it down, but what it means is that we can't "legislate from the bench" on this issue.

In other words, write to your congresscritter, both state and federal.

There is a difference between a municipal football stadium and Kelo just aa there is a difference between subsidized urban development and Kelo. There have been cases where private developers have benefited from ED,railroads for example,but where also the public benefit was rather clear cut. Here the primary and major benefit is to the private entity,the public benefit may be estimated,constructed,exaggertated,and still be problematical and possibly unrealizable. I take no comfort in the Court's slow drift,now shifted into high gear,on ED and takings. Reading about the New Hampshire application to build on Tiny Dave Souter's property was delicious,simply delicious. Now let's move on to Stevens,Ginsburg,and Kennedy,who was eulogized by the Times as an apostle of tolerance. The man has grown so much he's become a saint. The depressing thing about the NH application,or any others{ Mr Sulzberger's ?]is that they will be totally unconscience to both the irony and the justice of it. Damm,they'll be indignant over it.

DC baseball stadium, anyone?

The DC Stadium project isnt set in stone. The Anacostia riverfront redevelopment program, which is currently underway in the same area the proposed baseball stadium is to be located, has mostly been focused on land held by either the city or the fed government. Its my understanding that only 14 acres - the 14 acres that the stadium is to be build on - will potentially be effected by the city's use of eminent domain.

John,

"From where do municipalities, particularly rapidly expanding small cities, derive their powers to zone land in the first place? It would seem to me that even rezoning land, and adjusting the underlying property rates upward, from agricultural to either commercial or residential use is somewhat of a "taking" if we stick to a strict reading of the Constitution."

The permissibility of zoning was approved by the Supreme Court, even before the "Socialist Revolution" of 1937. In City of Euclid (I think 1925, but I may be wrong), the concept of zoning to separate residential areas from industrial and commercial uses was permitted as a public use which is necessary to promote the health and safety of the residents.

Sebastian, the difference between property rights and all other constitutionally protected personal rights is where the rights originate.

All property in the new world belonged to the king, either of England, Spain or France. The original division of the new worlds' property was through grants to individuals, or to 'companies', by the king in order to secure the land for the king, who maintaned his soviergnty over the land.

Today any right you or I have to the property our houses sit on is a 'right' we have to first purchase from somebody else and which they first purchased from somebody else and on down the line untill we come to the original grantor, either the king, his governor or, in one form or another the state. And further, for your current 'right' of ownership to have any meaning at all it must be registered through a deed with the appropriate government body.

This right is unlike my right to speak or assemble or to worship as I chose. Those individual rights are mine just because I am a human being. Those are my birthrights. I do not have to buy them or have any state power grant me these rights.

Property rights however emminate from the state. As such our forefathers recognized that through the states power of eminant domain they could lose the property the state once recognized as theirs. The requirement of compensation for the lose of the property is a reasonable solution to the hardship this would impose on the persons affected.

. . . strange, because property rights are explicitly mentioned in the Constitution but seem to be taken by many modern justices as far less important than other rights which are at best linked to the Constitution by penumbras and emmanations of rights.

Property rights and liberty rights are both expressly mentioned in the Constitution. Both in Amendment V, in fact.

The public use protection IS an emanation and penumbra--or, to put it in more common terms, an implied right. Emanations and penumbras and implied rights are when the court says: we can't protect this right unless we also protect that right, or: it would make no sense to protect this right without that right.

The Constitution does not explicitly state that "private property shall not be taken for private use," nor does it explicitly state that "private property shall not be taken except for public use and without just compensation." What it says is: " nor
shall private property be taken for public use, without just compensation." The express right is to compensation. You could, if you wanted to be nitpicky about adhering to a literal rather than purposive interpretation of the Constitution, even argue that compensation for property taken for private use is NOT required by the constitutional text.

Ridiculous, I know. Crabbed and narrow, I agree. Overliteral and ignoring the manifest purpose of the test? You betcha. It makes no damn sense to restrict the taking of property for public use more than the taking of property for private use. So it is a perfectly sensible emanation and penumbra. But make no mistake--it is an emanation and penumbra.

But since it involves rights that conservatives like, they don't complain about this emanation and penumbra. They don't complain about liberal activist judges overruling the legislature. Instead, they kvetch about judges decision not to overrule the legislature.

Also, every expert I've heard from says this case is NOT a change in doctrine, that they would have to overturn that Hawaiian case from 20 years ago--Hawaii Housing Authority v. Midkiff--to come out the other way, and maybe also Berman v. Parker. Can you explain how this goes beyond those cases?

I don't think I agree with it, mind you, and I agree that the liberal justices' approach is inconsistent. They do recognize the penumbra/implied right, as they should, but they defer to the legislature's description of its intent as they do not do in, say, an equal protection case. (Of course Justice Scalia, who won't find an intent to discriminate without a signed note saying "I intend to discriminate" is being equally inconsistent.) You can make a case that the public is in a better position than the court to say what is a public purpose, whereas the public is NOT in a better position than the court to say what is unfair discrimination against an unpopular minority--but I tend to be a bit cynical about how well the legislature actually represents the people, and it is naive to suggest that they will NEVER reward their buddies at the expense of the general public or the powerful at the expense of the weak.

Then again, I'm not coming up with a convincing alternative test. Thomas' dissent overturns 100 years of precedent for an interpretation that is an equally plausible reading of the text than "public purpose" but no more so, and O'Connor's draws a line that I don't think exists. I think this case and the other two stand or fall together.

As for targetting Souter: it's an unusually clever way to protest the decision, but if the town actually approves the project as a way to punish a judge for a constitutional interpretation they don't like, it's not cool. But this is exactly why you sometimes do need to look seriously at legislative purpose.

Takings law is the functional equivalent of substantive due process doctrine: each is the explication of rights (to property, to liberty) that are both expressly enshrined in the Constitution and fundamental to our political conception of the individual and the state.

er, yeah. What Katherine said.

On the inconsistency between heightened scrutiny in other rights cases and deference in "public use" cases, I think the difference might lie in the fact that each proceed from different clauses of the Amendment.

The Takings Clause expressly invokes the "public" in balance with the private property right, which may lead a court to conclude that regulating the scope of the public power is best left to public bodies rather than courts. The other rights cases come out of the due process clause, and due process of law seems more squarely a fundamental legal question, jurisdiction over which is consigned to the judiciary under Article 3.

Just a thought.

That is an amusing response, but I think a more practical, more principled, and more delightfully democratic response is Sen John Cornyn's (R TX) bill to explicitly limit 'public use' to exclude private development. Call for cosponsors, please.

Fortunately, Washington State already has such a bill. Not that self-preservation is much of a concern in this one. Judging from the changes in our property taxes last month, Seattle is milking as much revenue out of our neighborhood as they could ever get with a mall.

Really, it's for the children.

John Thullen:

The ownership of land has, essentially, never allowed you to do whatever you want with it. The most important common law doctrine was nuisance, which allowed your neighbor to sue you for using your land in a way which interfered with his enjoyment of his land.

Well over 100 years ago, people started to figure out that the nuisance doctrine was a pretty inefficient way to regulate land use. And voila! zoning laws were born. The power to adopt zoning laws comes from the police power (not the cops, "police" here comes from the Greek "polis" meaning "city"). The police power, which essentially is a public health and welfare power, allows municipalities to regulate all sorts of behavior and land uses, up to constitutional limitations.

Regulatory takings is the area of law where the police power meets the 5th amendment. A land use regulation becomes a compensable taking when it goes "too far" i.e., when the regulation imposes a burden on a single landowner which is properly borne by the community as a whole.

If you want to know more, i'm going to have to start billing you. ;)

From where do municipalities, particularly rapidly expanding small cities, derive their powers to zone land in the first place?

It's generally referred to as the "police power" and is what permits the government to regulate most anything for the public welfare. Speed limits on highways and zoning derive from the same power.

As for down zoning that constitutes a "taking" such that compensation must be paid, this issue has been litigated heavily, and it takes an extremely severe down zoning to enable one to obtain compensation.

Katherine:

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

I don't know the past history of the interpretations of this clause, but obviously the key undefined term is "public use," and Kelo presented an opportunity to give some flesh to this term. The issue is just how tenuous and emphemeral can the connections to public use be in order to permit the use of this power.

The notion of deference seems like a sell-out, even if this has been the dominant trend of prior interpretations. We are, after all, talking about protection of a fundamental right, which is liberty and property. As you noted, the court would not decide that a phrase such as "equal protection" should be left largely to the legislatures to flesh out what it means. Why do so here?

Since the definition will determine when the government can or cannot force you to move out of your home (with compensation, but so what), it seems rather odd jurisprudence that the court will defer to legislatures to define "public use," even if the definition they adopt is nothing more than a fig leaf for business enterprises to take over this government function for private (and maybe public) benefit.

I agree with all that, I don't think it contradicts what I wrote.

"and O'Connor's draws a line that I don't think exists."

:) Funny, because

A) it is true

and

B) that is why I have trouble with O'Connor even when I agree with her on the substantive point.

She always writes: balancing ABCDE and F in a way that will not be helpful for anyone on any other case I find X.

That is an amusing response, but I think a more practical, more principled, and more delightfully democratic response is Sen John Cornyn's (R TX) bill to explicitly limit 'public use' to exclude private development. Call for cosponsors, please.

Reason's "Hit & Run" blog had an interesting thread not too long ago about the apparent conflict that arises among libertarians on this issue; is there a contradiction for libertarians in wanting the government to limit its eminent domain power only to uses which will also be achieved by some government entity? That is, would libetarians rather see land taken under eminent domain powers be used for, say, a public school, or a privately-operated (but public-benefitting) water treatment plant? For a new bunch of offices for civil servants, or for a mixed-use retail/residential development that will help the city's economy grow? Not an easy question when you get down into the details.

Katherine's right about the supposed inability of government to take property from A (paying compensation) and simply giving it to B without public use: it's not based on the Takings Clause, but is instead a matter of due process.

Katherine:

I was not trying to contradict what you wrote -- I was just putting more emphasis on what I see as the primary problem with the legal reasoning of the decision, which is abdicating responsibility for defining "public use." The whole problem is local government playing fast and loose with this limitation on its power by abusing the meaning of "public use."

I have seen a lot of posts saying that the Kelo decision was "right" because it follows from past precedent. That is similar to saying that an opposite result in Brown v. Board of Education would have been "right" because it was consistent with Plessy v. Ferguson. The whole problem is that prior precedent has failed to provide a meaningful definition of the term, and continuing that flawed jurisprudence is exactly what is wrong with the Kelo decision.

dmbeaster: Kelo is certainly consistent with prior decisions. Whether it's right or not depends on your view of the scope of judicial review of legislative factfinding.

Unfortunately, the phrase "proper scope of judicial review of legislative factfinding" doesn't really trip off the tongue. So lots of people in the blogosphere and out are mischaracterizing Kelo.

My personal take is that the rational basis test -- where the lawyers and judges essentially make up some possible basis for a legislative act which is legitimate whether or not there is a shred of evidence that anyone in the legislature held that belief -- is overly deferential. But due to separation of powers concerns, courts are extremely reluctant to second-guess legislatures.

So, why is it that a public use is whatever the legislature says is the public use? Because there's no real alternative.

As Katherine points out, in the civil rights context, Scalia essentially requires unequivocal statements of an intent to discriminate unlawfully.

It's odd, really, the way that conservatives support local governments when they author silly laws (as Thomas says) which interfere with liberty interests, but are all of a sudden outraged when the same level of judicial deference is given when economic interests are at stake.

Phil:
"Not an easy question when you get down into the details"

Well, it is for me, but I was always small-l.

Debating whether the use a property is put to after taking it is more libertarian or not is, I think, missing the forest for the trees, or the elbow for the ass**** or whatever. The point, from my perspective, is simply to reduce the number of takings period. Any rule of the type 'You may not take for use X' is fine with me. I'd argue just as much for 'You may not take to make parks and freeways' just as vehemently, if I thought it ever had a chance of making it through.

Further, taking for private developers is particularly pernicious, because the ability for powerful private entities to effectively infest and exploit public powers is well known. At least for parks you have to wait for an 800-member council of citizens to get their act together. And they, at least putatively, have you as a constituent if you're a citizen in that area. You are only a citizen of Phizer or Nuprecon if you own a significant number of shares of their stock. Otherwise, thanks for your house. Later.

I don't really see a textual basis to give more deference in property issues and less in liberty issues. The controlling language from the Constitution's Fifth Amendment is: "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."

In the Fifth Amendment it would seem that deprivation of property is to be analytically similar to deprivation of life and liberty--it must have due process of law. It gets a further protection in the next clause, suggesting that it can't be taken for public use without just compensation. (The cannot be taken for private use is implied by historical context). But this is a further protection--it doesn't negate the previous sentence.

In the 14th amendment the language is "nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws"

Now many suggest that "due process" is almost a dead letter. But it certainly appears that property rights and liberty rights are not so categorically different as to require vastly different Supreme Court approachs when dealing with them.

Francis/Brother etc, A few short points on your 2:47 post. I would say that the last thing that courts are reluctatnt to do is second guess legislatures,it's almost become a way of life. As for legislatures saying that public use is whatever they say it is,and apart from seperation of powers and an occasional election,were that the case it would be fair to say that we live and own at the sufferage of those bodies. Your last para.,when you see an oddity,or contradiction,search for the differences or disimilarities. There may be differences,legal,historical,or otherwise between a local law requiring you to walk your cow on the right side of the street and handing private property over to private property developers. I should hope that somebody,however inconsistent,would take note when "economic interests are at stake". One can blather all one likes with freedom of speech but still have to move your furniture out of the house when Hilton Hotels winks and nods in your direction.

JohnT:

you're going to need to be a lot more clear for me to respond effectively. But, you seem to be saying that courts are more willing than historically to set aside duly adopted laws.

first, i'm not sure that's correct.

second, please note the narrowness of the issue. My view of Kelo is that the Court did not want to second guess legislative FACT-FINDING. This has nothing to do with courts overruling substantive laws (like, say, anti-sodomy laws) on constitutional grounds.

SH, do you really want to start a debate on Sup. Ct. standards of review? if so, please start a new thread.

It gets a further protection in the next clause, suggesting that it can't be taken for public use without just compensation. (The cannot be taken for private use is implied by historical context). But this is a further protection--it doesn't negate the previous sentence.

Do you read that as further protection? I see it as mitigating, myself; could you expand?

I see it as mitigating

I'm intrigued by Seb's point, though: why, if deprivation of property after due process can be mitigated through compensation, should that mean that the deprivation itself not be subject to higher scrutiny, like deprivation of liberty in the equal protection context? Good question.

Is it possible the first clause refers to punitive deprivation of "life, liberty, or property," while the second simply refers to eminent domain types of takings, where there is no issue of punishment?

In other words, could the Amendment be talking about two unrelated things, which have in common only that they may involve the government taking private property? It is at least arguable that you are not "deprived" of property if you receive "just compensation."

Francis/Brother etc A private development corp is established by the city,it makes certain findings that it's creator,the city,is looking for. Based on that plan the city orders it's agent,the development corp,to condemm certain properties. The goal originally desired is the one arrived at,this is fact finding? The process of arriving at a plan in any case ought not to be a shield for what is a too broad expansion of ED. It remains a taking of private property for the benefit of private property developers and should have some interesting twists in the future. And yes Courts do overturn laws{you were kidding on that one,right ] and I just feel it in my bones that there were at least a few lines in my 5:47 post that were lucid enough to be clearly understood.

JohnT: Here in California, a Redevelopment Agency is a public agency with the power of condemnation. That also means that its determination that a use is a public use can be challenged in accordance with California law. Also, as a public agency it is subject to political pressures. The Sup Ct is telling us citizens that determinations of public use are political questions best resolved in the political process.

Don't want to lose your house to condemnation? Go to the meetings of the city council / RDA. Bring your neighbors. Pack the hearing room. Get the local press interested. The developers may have money, but you have a vote. At the end of the day, most politicians are more interested in keeping their jobs than satisfying the concerns of their campaign contributors.

as to your other point, yes, i'm aware that the Sup Ct and lower courts invalidate laws they find to be unconstitutional. the point I was making is that Kelo is not a standard constitutional case where the court looks at the effect of the law; instead it belongs in that narrow category where the court looks at the intent of the legislative action.

so one more time: courts will invalidate legislative actions where the legislature has acted in excess of its constitutional power (Lawrence) no matter how benign the legislative intent. But in Kelo there is no question that the legislature has the power of eminent domain. This is not a legislative power case; this is a case about the scope of judicial review of the intent preceding the exercise of that power.

"This is not a legislative power case; this is a case about the scope of judicial review of the intent preceding the exercise of that power."

I don't think this gets you out of the problem. Legislatures can draw district voting lines, but they are limited in how they can do it. Saying "it looked fair to me (to put all the Democrats in just one district)" isn't good enough. Legislatures can theoretically attempt to protect 8 month old fetuses, but passing a law and just saying that is what they are doing is never sufficient.

Francis:

So, why is it that a public use is whatever the legislature says is the public use? Because there's no real alternative.

Actually, there is no reason why the Supreme Court has to defer to legislative factfinding in order to address this question. I understand that the prior decisions have employed that analysis, but it is rather odd for the meaning of a provision in the Constitution ("public use") to depend on what legislatures think it means.

Clearly, the Supreme Court could provide a definition of the term, and objectively analize legislative actions based on that definition -- they are in the business of doing that for all of the other provisions in the Constitution.

I haven't yet seen a mention of 1868. I'm not sure what the general view at that time was of states giving private entities the right to exercise ED for private gain, but the opinion in http://caselaw.lp.findlaw.com/scripts/getcase.pl?navby=case&court=us&vol=98&invol=403>Mississippi & Rum River Boom Co. v. Patterson, 98 U.S. 403 (1878), doesn't make it look out of the ordinary.

I'm not one of those who thinks that you can resolve all questions by looking at what people thought in 1868 -- but I would be interested to see how those who do analyze the evidence.

A couple of nineteenth century quotes on the question, first from the opinion of the Court in http://caselaw.lp.findlaw.com/cgi-bin/getcase.pl?court=us&vol=96&invol=97>Davidson v. City of New Orleans, 96 U.S. 97 (1877),

It is easy to see that when the great barons of England wrung from King John, at the point of the sword, the concession that neither their lives nor their property should be disposed of by the crown, except as provided by the law of the land, they meant by 'law of the land' the ancient and customary laws of the English people, or laws enacted by the Parliament of which those barons were a controlling element. It was not in their minds, therefore, to protect themselves against the enactment of laws by the Parliament of England. But when, in the year of grace 1866, there is placed in the Constitution of the United States a declaration that 'no State shall deprive any person of life, liberty, or property without due process of law,' can a State make any thing due process of law which, by its own legislation, it chooses to declare such? To affirm this is to hold that the prohibition to the States is of no avail, or has no application where the invasion of private rights is effected under the forms of State legislation. It seems to us that a statute which declares in terms, and without more, that the full and exclusive title of a described piece of land, which is now in A., shall be and is hereby vested in B., would, if effectual, deprive A. of his property without due process of law, within the meaning of the constitutional provision.

and then from the concurring opinion of Justice Bradley:

It seems to me that private property may be taken by a State without due process of law in other ways than by mere direct enactment, or the want of a judicial proceeding. If a State, by a its laws, should authorize private property to be taken for public use without compensation (except to prevent its falling into the hands of an enemy, or to prevent the spread of a conflagration, or, in virtue of some other imminent necessity, where the property itself is the cause of the public detriment), I think it would be depriving a man of his property without due process of law. The exceptions noted imply that the nature and cause of the taking are proper to be considered.

CharleyCarp: that opinion remains good law. If the police come into your shop and trash the place while in pursuit of a suspect, you have (in California) no claim in inverse condemnation.

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