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June 24, 2005

Comments

the more interesting case against which to compare Kelo is Lawrence, not Raich. Raich is a pure federalism case; Kelo and Lawrence both question the justiciability of state legislative decisions.

the plaintiffs in Lawrence were able to define a bright line -- the power of the state to regulate personal conduct stops at the bedroom door. no amount of legislative factfinding regarding the public benefits provided by that regulation can overcome the constitutional prohibition against crossing that threshold.

the Kelo plaintifs (like many plaintiffs in recent regulatory takings cases) were unable to define any standard by which a court could review legislative fact-finding.

for years, conservatives have been begging for the judiciary to defer to the decisions of citizens. I could probably dig up some posts in this blog on that point. Now that the court decided to do so, you're complaining?

this case is the opposite of an activist judiciary. congratulations on achieving your goals.

Very insightful post BD. Though I disagree with you that the Republicans can use this decision to advance their agenda. The moment the first campaign ad comes out mentioning this issue, I suspect you'll see one that starts off with a shot of Texas Ranger Stadium with a reminder of how the then-owner of the Rangers (the President himself) was able to build that sports complex having acquired the property though eminent domain.

In general, that's a great summary, and I mostly share your fears. As to the political angle you mention at the end though, I think you've missed a key point - the Administration may have been on the wrong side of the case.

From Jonathan Adler:

There are a few problems with President Bush going out and attacking the Supreme Court's Kelo decision. First, the Bush Administration had the opportunity to intervene on the side of the homeowners, and they decided not to. Indeed, it was pretty clear to those watching the case that if the Solicitor General's office participated at all, it would have been on the side of the city government seeking to use eminent domain. Second, this was a legitimately tough case. Despite my detest for the use of eminent domain for such projects, it's not clear they are barred by the Constitution. Third, it's not at all clear that this decision allows for naked wealth transfers through eminent domain. There is language in both the majority opinion and Justice Kennedy's concurrence that would suggest blatant rent-seeking could still be struck down.

We are still a country of rugged individualists who take the Bill of Rights to heart.

Building log cabins on the weekends, are we Charles?

Seriously now. Isn't most of the US population urban and rather unfit these days? And no, driving an SUV deoesn't make one rugged.

the plaintiffs in Lawrence were able to define a bright line -- the power of the state to regulate personal conduct stops at the bedroom door.

Can someone grow medicinal marijuana in there? No? That's interstate commerce?

They can't regulate your behavior in the bedroom but they can take the actual bedroom away from you and give it to someone else?

Sorry, the Supreme Court has lost the plot. There are no standards operating based on these recent broad decisions - many of which I agree with in their result (Lawrence, for instance) but the reasoning to get there makes no kind of sense.

Great overview of this ruling Charles. IANAL, and I'm not at all clear on the flipside argument (i.e., why being able to take people's homes away against their wishes is a good thing). Personally, I can see where Bush, in his infinitely pro-corporate frame of mind, would not want to make too big a deal out of this. Sure it undercuts his "ownership society" dreams, but I'm sure his business buddies aren't all the bothered by it.

Charles, we have finally found a topic on which I can --nearly -- unequivocally agree with you. This case was not about a few recalcitrant squatters preventing the new freeway bypass or water treatment plant from going up. It was people who don't want to be forced to sell the houses they raised families in so that Pfizer and a mall developer can have pretty new tax-abated playgrounds. I think the Court was wrong, wrong, wrong here. This was a case where someone needed to say, "Stare decisis is a principle, not a rule, and sometimes, precedents are wrong."

"Just compensation," BTW and IMNSHO, should include the nonmonetary value of a property to a person, sentimental value and whatnot. Hey, if corporations can assign a value to goodwill when conducting a merger, individuals should be able to do the same when the bulldozers show up to turn them out.

In a related story, the Washington Post reported yesterday on DC businesses that are about to stage a tax revolt, having gotten the first bills for the gross receipts tax that the city is imposing to build a baseball stadium. Some have outright announced they're simply going to move to Maryland, others wonder why the hell their private businesses have to help build the new HQ for someone else's private business. Delicious.

please Jonas, growing medical marijuana is really different from sex.

I'm not crazy about this ruling, not least because this sort of thing adds to the opportunities for corruption.

"Made a nice contribution to the Mayor's campaign, did you? Let's see what we can do about helping you buy that property."

That says nothing about the Constitutional issues, of course. Still it does seem to me that for those who completely oppose any such use of eminent domain the logical strategy is to seek legislative action at the state level. Isn't that usually the recommendation of conservatives for dealing with problems liberals bring to the courts?

I don't think there is any question this is a huge opportunity for the GOP for this sickening decision

just want to point out a little something (from wiki):

  • Chief Justice William H. Rehnquist (born 1924, appointed by Richard Nixon in 1971 and elevated by Ronald Reagan in 1986);
  • Justice John Paul Stevens (born 1920, appointed by Gerald Ford in 1975);
  • Justice Sandra Day O'Connor (born 1930, appointed by Ronald Reagan in 1981);
  • Justice Antonin Scalia (born 1936, appointed by Ronald Reagan in 1986);
  • Justice Anthony Kennedy (born 1936, appointed by Ronald Reagan in 1988);
  • Justice David Souter (born 1939, appointed by George H. W. Bush in 1990);
  • Justice Clarence Thomas (born 1948, appointed by George H. W. Bush in 1991).
  • Justice Ruth Bader Ginsburg (born 1933, appointed by Bill Clinton> in 1993);
  • Justice Stephen Breyer (born 1938, appointed by Bill Clinton in 1994);

note the GOP contribution to that list.

regardless, the decision is a disgrace.

please Jonas, growing medical marijuana is really different from sex

no way - they both require special lighting, a lot of dirt water and chemicals, and of course secrecy.

Well, Justice O'Connor's attempt to distinguish Berman and Midkiff falls flat for me, so I find Kelo unexceptional. Should Berman be overruled? I think I could go with that . . .

But then that's because I like to have courts reviewing the constitutionality of state action to prevent infringement on the individual. As Francis says above, you folks who think the individual ought to have to vindicate his/her rights in the state legislature are getting with this one what you want.

I am also disappointed by and suspicious of this ruling. Aside from the question of who decides, the legislature or the jucidiary, the important part seems to me (and IANAL) to be the new expansive definition of the "public interest."

The Public: Now More Corporate Than Ever!

(Or have I understood this wrong?)

Approximately two blocks from my place, a semi-blighted neighborhood has been holding its breath, waiting, I think, for this decision to come down. The local university wants to expand, some locals are refusing to sell, and it recently came out that the university would really like the state government to condemn those buildings owned by the holdouts--and has graciously prepaid $300,000 in "legal fees"...

Well, I guess it's all okay now! I expect to see construction begin next spring.

I am also disappointed by and suspicious of this ruling. Aside from the question of who decides, the legislature or the jucidiary, the important part seems to me (and IANAL) to be the new expansive definition of the "public interest."

The Public: Now More Corporate Than Ever!

Or have I understood this wrong?

Approximately two blocks from my place, a semi-blighted neighborhood has been holding its breath, waiting, I think, for this decision to come down. The local (private) university wants to expand, some locals are refusing to sell, and it recently came out that the university would really like the state government to condemn those buildings owned by the holdouts--and has graciously prepaid $300,000 in "legal fees"...

Well, I guess it's all okay now! I expect to see construction begin next spring.

please Jonas, growing medical marijuana is really different from sex

no way - they both require special lighting, a lot of dirt water and chemicals, and of course secrecy.

Heh:

Scene: Luna Park: Arcade. Amy is still trying to get the keys but the claw drops them again. Enter Bender with a small doll.]

Bender: Hey, look what I won from a tourist's pocket!

Amy: Shut up. You're distracting me.

Bender: Come on, it's just like making love. Y'know: Left, down, rotate 62 degrees, engage rotor.

Amy: I know how to make love!

[The claw drops the keys again. Amy sighs.]

-- Futurama

Terrible result in Kelo, I agree, but I've come around to the notion that the place to fight this out is at the state and local level. The SCOTUS is saying, in effect, that if states want to define "public use" so broadly, they won't intervene. Beat up your local legislators and judges, not the SCOTUS.

I dislike the result, but I'm clueless as to the actual jurisprudence.

Francis,

please Jonas, growing medical marijuana is really different from sex.

Previous joking aside, of course it is. Which is why, if I was on the Supreme Court I would have held that consensual adult sex is a unenumerated right retained by the people under the Ninth Amendment.

They didn't hold that, they held that it fell under the bizarrely broad "right to privacy," seemingly implying that you have a right to do anything that affects only yourself provided it is done in private. Medical marijuana, or even recreational marijuana passes the privacy standard in Lawrence.

When this interpretation first occurred to me, I sent an email to Eugene Volokh asking if I had lost my mind in reading the ruling that way. He agreed that it could be read that broadly. The Supreme Court is not grappling with these hard issues in a principled way.

"Sure it undercuts his "ownership society" dreams, but I'm sure his business buddies aren't all the bothered by it."

Posted by: Edward_

I'm sure that it supports his 'ownership society' dreams: The big boys own everything.

"Medical marijuana, or even recreational marijuana passes the privacy standard in Lawrence.

When this interpretation first occurred to me, I sent an email to Eugene Volokh asking if I had lost my mind in reading the ruling that way. He agreed that it could be read that broadly."

He's wrong. Constitutional privacy is just an aspect of the individual rights jurisprudence promoted by civil libertarians and anti-"group rights" conservative activists. The constitutional privacy cases, e.g. Casey and progeny (and, yes, Roe for all you anti-Roe liberals out there) are based on the same liberty interest that underlies the First Amendment: certain things are essential to personal autonomy and can't be invaded by the state. These basically reduce to things you do with your mind (reading, belief), your family (religious instruction, procreation), and your own body (sex, procreation). Privacy is essentially a pretty narrow, internally consistent, and noncontroversial area of the law. It's the theological implications that give people fits (when does another human life endowed with natural rights begin, etc), but the law shouldn't concern itself with theological matters anyway.

These basically reduce to things you do with your mind (reading, belief), your family (religious instruction, procreation), and your own body (sex, procreation).

Interesting response, Travis. I don't know how marijuana doesn't meet this mind/body reduction. Of course, it's a physical plant, but given that for instance reading requires physical books, so you can't ban them, I don't see how that would be relevant.

I'm honestly asking, what line is marijuana crossing? I'm really not clear.

Basically because smoking drugs is not a fundamental individual right. All I'm saying is that privacy is not as broad as it is made out to be, and most critiques of privacy (read: critiques of the Casey due process line of cases) are based on broad claims that overstate what privacy actually covers.

Basically because smoking drugs is not a fundamental individual right. All I'm saying is that privacy is not as broad as it is made out to be, and most critiques of privacy (read: critiques of the Casey due process line of cases) are based on broad claims that overstate what privacy actually covers.

I see what your saying, and you are likely right that in practice, the right to privacy is not as broad as could be construed.

But I'm still left out here not understanding precisely why smoking drugs is not a fundamental individual right. As this boils down to a matter of what you do to both your mind and body, I don't get it. I have yet to hear the principle outlined, nor do I believe it to be written down anywhere either.

Drugs are sufficiently dangerous for this to perhaps make sense pragmatically, but the philosophical underpinnings seem very weak to me. And, for that matter, I've never found the part of the Constitution that would allow the prohibition of drugs, given that the prohibition of alcohol required an amendment. It's a mess.

Basically because smoking drugs is not a fundamental individual right. All I'm saying is that privacy is not as broad as it is made out to be, and most critiques of privacy (read: critiques of the Casey due process line of cases) are based on broad claims that overstate what privacy actually covers.

I thought the critiques were more along the lines that the only thing holding the court back was the court. So far its held itself to the narrow area, but nothing is keeping it there.

It seemed to me that the justices who sided with the city wrote about the narrow confines of this case and put the responsibility for change on the citizens and legislators to write better local laws/ordinances. Meanwhile, the justices who sided with the homeowners made dire predictions about what might happen as a result of the decision that came down.

I hate the ruling and disagree (and am stunned to find myself siding with Scalia and Thomas), but I do understand the idea* that the court can only interpret the laws as written and the situation as presented. We just went through this -- if you want different results in a Schaivo-type case, your remedy is not with the courts, it's by changing the laws.

*I'm not saying this is how it should be - what do I know of The Law? - I'm just saying I recognize the argument.

I'm not wild about the result, but I'm inclined to think the Court got this one right. There's really nothing new here, other than, as in Raich, a decision that trends in the Court's recent jurisprudence won't be extended as far as some hoped they would. And despite the fact that Berman has been around for 50 years and Midkiff for 20, the world hasn't ended. It didn't end after the Michigan Supreme Court's decision in the Poletown Neighborhood Council case, which upheld the taking of a neighborhood to build a GM plant, and which I remember reading in law school 15+ years ago as a regrettable but unsurprising application of well-established law.

When you're talking about people's homes, it's very tempting to think that the Court ought to wade into protecting property rights as aggressively as it protects other sorts of individual rights. But I don't have any confidence that jurisprudence of that sort can be confined to protecting people's houses from big-bucks developers. Big-bucks types tend to win more often than they lose in the courts as well as in local legislative bodies, and the level of outrage that decisions of this sort generate is more likely to have an effect on a city council or a state legislature than a court.

I'm no lawyer, so I can't say much about the legalisms in this decision. What I can say is that, like Charles Bird, I live in the Puget Sound region and I get to see the machinations of the city of Seattle and King County up close. I grew up in Alabama, where I got to see the machinations of the city of Gadsden and Etowah county up close. In my estimation, my current local government is a paragon of wisdom and virtue compared to what I once knew (that ought to scare C.B.). Anyway, I shudder to think of the troubles that will come of this decision in places where the local government is either venal or just a bunch of well meaning part-timers without the resources or skills to tease out the details of various projects that are little more than half baked crackpot schemes.

I dislike the result, but I'm clueless as to the actual jurisprudence.

Pretty much sums up my thoughts. In my mind, the actions of the city certainly violate the spirit of the Constitution, whether or not they adhere to the letter.

I just bought my first house a year or so ago, lakefront property, this kind of stuff gives me nightmares.

Land of the free my big hairy butt. :(

here's another way of looking at the case:

most hotly contested constitutional cases look at the effect of the law -- is certain conduct (speech, sex, drug ingestion) to be allowed or not.

Kelo is different; there is no question that a govt has the power of eminent domain. The question, properly framed, in Kelo is one of legislative intent.

Is the intent of the legislature to put the seized property to public use? Answer: courts will not engage in this analysis, absent clear evidence of fraud. The determination as to whether a use is or is not public is so intrinsically tied to the political process in approving the project that the courts cannot fairly review that decision without violating notions of separation of powers.

It's worth noting that conservative legal thinkers have long argued that courts should not second guess legislative decision making.

How, then, could the court rule otherwise? Does it lie within the police power of a city to mitigate blight? Yes. Does it lie within the police power of a city to condemn blighted property? Absent state law to the contrary, yes.

I cannot draw a principled distinction between the blight cases and this one. I cannot see how the Court can develop an adequate standard for review of a legislative determination that a use is public.

that being said, i still think that the redevelopment proposal was a terrible idea and that Ms. Kelo is getting hosed. But results-driven judicial decisions tend to be terrible.

Land of the free my big hairy butt. :(

If it weren't the Land of the Free, the first indication would be nationwide censoring of the use of imagery like this. ;p

Here's a telling excerpt from a 1908 Supreme Court http://caselaw.lp.findlaw.com/cgi-bin/getcase.pl?court=us&vol=208&invol=598#607>decision:

We proceed to consider whether the uses of the spur track for which the land was taken were private, and therefore such uses for which a taking by the right of eminent domain is forbidden by the 14th Amendment. The courts of the states, whenever the question has been presented to them for decision, have, without exception, held that it is beyond the legislative power to take, against his will, the property of one and give it to another for what the court deems private uses, even though full compensaion for the taking be required. But, as has been shown by a discriminating writer (1 Lewis, Em. Dom. 2d ed. 157), the decisions have been rested on different grounds. Some cases proceed upon the express and some on the implied prohibitions of state Constitutions, and some on the vaguer reasons derived from what seems to the judges to be the spirit of the Constitution or the fundamental principles of free government. The rule of state decision is clearly established, and we have no occasion here to consider the varying reasons which have influenced its adoption. But when we come to inquire what are public uses for which the right of compulsory taking may be employed, and what are private uses for which the right is forbidden, we find no agreement, either in reasoning or conclusion. The one and only principle in which all courts seem to agree is that the nature of the uses, whether public or private, is ultimately a judicial question. The determination of this question by the courts has been influenced in the different states by considerations touching the resources, the capacity of the soil, the relative importance of industries to the general public welfare, and the long-established methods and habits of the people. . . . No case is recalled where this court has condemned, as a violation of the 14th Amendment, a taking upheld by the state court as a taking for public uses in conformity with its laws. In Missouri P. R. Co. v. Nebraska, ubi supra, it was pointed out (p. 416) that the taking in that case was not held by the state court to be for public uses. We must not be understood as saying that cases may not arise where this court would decline to follow the state courts in their determination of the uses for which land could be taken by the right of eminent domain. The cases cited, however, show how greatly we have deferred to the opinions of the state courts on this subject, which so closely concerns the welfare of their people. We have found nothing in the Federal Constitution which prevents the condemnation by one person for his individual use of a right of way over the land of another for the construction of an irrigation ditch; of a right of way over the land of another for an aerial bucket line; or of the right to flow the land of another by the erection of a dam. It remains for the future to disclose what cases, if any, of taking for uses which the state Constitution, law, and court approve will be held to be forbidden by the 14th Amendment to the Constitution of the United States.

Basically, it's been 'my big hairy butt' for a long time now.

Bad politics, not bad law.

Land of the free my big hairy butt. :(

If it weren't the Land of the Free, the first indication would be nationwide censoring of the use of imagery like this. ;p

And, I guess, if it weren't the L ot F, the govt. wouldn't have to ask the courts. They'd either already own "your" home or they'd just take it.

CharleyCarp- I see that your case referred to uses. Stevens mentions purposes.

Would moving the goalposts constitute hairyness?

It's simple, really. We all just paint giant American flags on the sides of our houses, and the authorities won't be able to touch them (assuming the Flag Desecration amendment passes).

We all just paint giant American flags on the sides of our houses, and the authorities won't be able to touch them...

Brilliant.

Why should Bush try to do anything about the Supreme Court's decision? As http://www.mahablog.com/2005.06.19_arch.html#1119614321656>Mahablog points out, this is how Bush and his cronies built a stadium in Texas.

Drum is pretty much right on point as to the significance of the decision, IMHO. Unless, of course, the decision turns out to create some political mobilization against this kind of abuse, which, again IMHO, would do a whole lot more good than a Supreme Court decision that came out the other way.

i like drum's comment that libertarians are grossly over-represented among political blogs.

Happy Jack, I'd bet that Mr. Justice Stevens regards the terms as synonymous in this context, and I'm not sure I don't as well.

I had a takings case in the 90s. The property consisted of expropriation claims against Iran. The US government took over ownership of them so it could settle them, at a deep discount, and placate those elusive Iranian moderates. This same thing was done in the first Adams administration wrt private claims against France, and in the Monroe administration wrt private claims against Spain. Use? Purpose?

Charles, If you really think that the people who control the purse strings in Washington are upset about this ruling, you are smoking some serious crack.

Big Business, Big Money Republicans love this decision. It means that they can get land condemned by the government for whatever project they want without having to negotiate with pesky recalcitrant homeowners. This is who you have hitched your wagon to when you decided that free market capitalism is good and any government regulation is bad. Big business gets to influence local government and convince them to do their bidding, including taking private property for private development.

Do you really think the big donors to the Republican party are going to sit still and allow the Supreme Court to be taken over by justices who would overturn this decision? Dream on. Roe v. Wade is one thing. You are talking about building WalMarts here. And that affects people's wallets.

Uh, Freder, whatever the merits of your response to Charles, there, I'm going to have to guess that a city council in Connecticut is going to contain a not-insignificant proportion of Democrats on it. And I know for a fact that Ernest Hewitt, who as mayor and head of the New London City Council approved the plan at issue, is a Democrat.

This is not a feature of Republicanism. It's a feature of crony capitalism, and at the local level that we're talking about, you can buy a Democrat as easily as you can a Republican.

It's a feature of crony capitalism, and at the local level that we're talking about, you can buy a Democrat as easily as you can a Republican.

Snarky-sounding question that's actually completely serious: at the local level in question, is there a meaningful distinction between Democrat and Republican?

Not really, Anarch. At least, not reliably.

(Also a serious answer, that also runs the risk of sounding snarky.)

For this kind of thing, Anarch, probably not. On the school board, yes; on the City Council, debatable.

I would bet that pro-development Republicans are a higher percentage of all Republicans in local government than pro-development Democrats are of all Democrats in local government. Not that the latter would be under 60%. Get off the question of whether to facilitate a Wal-Mart, though, and I can see that real differences will emerge.

I feel for the folks in New London, but oddly enough this ruling may have broken the backs of the more fanatical property rights contingent. Oregon passed a law stating that government had to compensate you not just for your current use if they take your property but for any future potential use if they change the rules for development. If Granddad had the right to cut up his 160 acres into 1/4 acre lots, then a switch to five acre zoning means the government owes you the value of 608 lost lots, or maybe the value of a mercury smelting plant that could have been built there 80 years ago.

The Oregan law has not been pushed to its extremes but to this non-lawyer falls apart when it runs up against this ruling. The rather odd distribution in this case, with the moderate wing apparently lining up with real estate developers and the conservative wing opposed may signal that the Court understood that the fundamental issue was the power of governement to regulate development.

Is a stream buffer a "taking"? Hot question here in the Northwest, but maybe settled on the streets of New London.

I think Freder is correct that Republicans like this decison. The libertarians may make a lot of noise on blogs, and local governments may be divided, but developers are probably largely Republicans. They hate land use restrictions and such, but love the idea of local government being able to condemn property for their use.

Note that the emailer Goldberg quotes enthusiastically gets it wrong when he writes:

"W and others can say, with complete accuracy, that USC justices say the govt can take your house! I won't appoint justices like that!"

(This genius correspondent also confuses New Haven with New London.)

Given that the Constitution explicitly and plainly does allow the govt to take your house, with "just compensation," I don't think this complaint has much merit. Is Bush supposed to appoint Justices who think otherwise?

If you really think that the people who control the purse strings in Washington are upset about this ruling, you are smoking some serious crack.

I made no reference in the post to the "people who control the purse strings in Washington" and I don't give a rat's ass about what they think. Most conservatives have real problems with the ruling. Also, it takes more than developers and corporations to tango. Cash-strapped city governments, be they majority Republican or Democrat non-partisan, are just as guilty if they do this. More so, even.

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