June 24, 2005

Has the Court "erased the Public Use Clause from our Constitution"?

That's what Justice Thomas wrote in dissent in Kelo v. City of New London, yesterday's Supreme Court Takings Clause case. Much of the criticism of the case that I've seen taps the stimulating rhetoric served up by Justice Thomas. Is the outcry justified?

You have to accept that government can take property. The power of eminent domain is ancient. What the Constitution requires that "just compensation" be paid to the owners and that the taking be for a "public use." This case was about what counted as a "public use." What was the questioned use in Kelo? As described by Linda Greenhouse in the NYT: it was "a large-scale plan to replace a faded residential neighborhood with office space for research and development, a conference hotel, new residences and a pedestrian 'riverwalk' along the Thames River."
The project, to be leased and built by private developers, is intended to derive maximum benefit for the city from a $350 million research center built nearby by the Pfizer pharmaceutical company.

New London, deemed a "distressed municipality" by the state 15 years ago, has a high unemployment rate and fewer residents today than it had in 1920.
Some people would like to say that the city should have had to run the development project itself for it to count as "public use." Should that be an absolute rule? No private developers? The public benefit is still there:
"Promoting economic development is a traditional and long accepted function of government," Justice Stevens said, adding, "Clearly, there is no basis for exempting economic development from our traditionally broad understanding of public purpose."...

Justice Stevens ... said the plan "unquestionably serves a public purpose," even though it was intended to increase jobs and tax revenue rather than remove blight.

He described the plan as "carefully formulated" and comprehensive. Sounding a federalism note, Justice Stevens said that state legislatures and courts were best at "discerning local public needs" and that the judgment of the New London officials was "entitled to our deference.".
So we're left wondering what would overcome this deference to the choices of the local political processes, but the strength of the dissenters, who would have adopted a hardline rule against private development, cautions against overreliance on judicial deference:
Both Justice O'Connor and Justice Thomas ... said the decision's burden would fall on the less powerful and wealthy.

"The government now has license to transfer property from those with fewer resources to those with more," Justice O'Connor said. "The founders cannot have intended this perverse result."

Justice Thomas, who called the decision "far reaching and dangerous," cited several studies showing that those displaced by urban renewal and "slum clearance" over the years tended to be lower-income minority residents.
It's interesting -- isn't it -- that the Court's liberals stressed "federalism," which the conservatives often praise, and the Court's conservatives stress the oppression of the poor by the rich, usually the plaint of the liberal.

The question is how much courts should involve themselves in reassessing the work of local government. If the local political processes result in spending tax money in an effort of this sort, replacing one land use with another, how much should courts scrutinize that choice? How much should local government need to pour its resources into litigation in order to get something done that elected officials believe is worth doing? Whatever you think of the wisdom of the project in this case, the standard the Court sets will affect all sorts of other cases.

Reading the various commentators, I was impressed by this post from lawprof Tom Merrill (at SCOTUSblog):
I think the case sends just about the right message. The Court is not prepared to adopt a per se rule against takings for economic development. But the amber light is flashing. Stevens and Kennedy seem to say that careful planning and lots of community input are important in sustaining the use of eminent domain for economic development. Kennedy ... warns that he may come up with a theory in the future which would allow him to go the other way -- so watch out! The Court is closely divided 5-4, which means another, more egregious example of condemn-and-retransfer might get struck down. So the message to state courts is: go ahead and use eminent domain for economic development, but please try to take property rights more seriously in the future. I think this is exactly the right message. it preserves federalism in this area, but tries to re-shape values and attitudes to be less casual about overuse of eminent domain, which can be a wrenching experience for people.
There is a message here for local government: if you go further than the City of New London did in Kelo, you will get tied up in litigation. Thus, the case doesn't unleash local government to condemn property willy-nilly and shift ownership around lightly. Merrill describes the kind of case that might turn that amber light red: "a case in which it looked like some politically unaccountable development authority had sold out to a private developer or big box store."

I'm not an expert in this area of law, but readers requested my opinion -- perhaps hoping I would join the outcry about the Court "erasing" the Public Use Clause. It seems to me the Court struck a reasonable balance between property rights and government power. The Public Use Clause still has meaning -- just not an absolute meaning. I realize that people who like to give constitutional language crisp meaning are disappointed, as you frequently are, but there are good reasons why the majority of the Court is drawn to these nuanced interpretations you find so frustrating.

107 comments:

DaveG said...

Pardon my naivete, but I'm left wondering why the same deference to local governance wasn't shown in Raich.

It all seems to arbitrary to me when taken as a whole.

Ann Althouse said...

Dave: Because the deference to governmental choice went to Congress, which passed the Controlled Substances Act that regulates marijuana all the way down.

LDM said...

Woe! Financial soothsayers abide'th there
O! They take'th a bold and brazen dare
now n'er more a man's castle his lair
they ignore'th the householder's smoldering stare
verily their life-long appointments We damn well can pare
Behold! like a red-headed step-child heir
granting 8 yrs. of power, like a President's share
-LDM

Craig said...

As an aside, it seems that part of the strength of this ruling is the near split the Court ended up in. Is signalling a proper basis for ruling? I.e., would it be proper for a judge to change his vote (or to vote against the ostensible "outcome" he or she thinks is proper solely to send a vote suggesting his thoughts on future possibilities?

Craig said...

(Addendum: I say that not as a challenge to this ruling. I have not invested any substantial thought into my question; I am merely posing it.)

Jean723 said...

This is egregious.

This effectively ends all pretense of American property rights, since state and local governments now have the ability to hand over a desired property to anyone with the requisite political influence. This is a recipe for disastrous corruption, of course, as the redefinition of "public use" in the same manner as "interstate commerce" not only renders the language meaningless, but the law as well.

Horrible is the only way to accurately describe this decision.

Baronger said...

I think the main point against the ruling is one of practice. Yes it might seem fair and strike a resonable balance on paper. However as Justice Thomas pointed out, in practice this is bound to lead to corruption. I would set a high bar to when a taking can occur. To do anything else will stifle both home spending and business. Who will invest in improving their houses or businesses if they can lose them if someone else can put the property to better use. Remember all home improvements, don't really raise the property value.

I've put in several thousand dollars of work on my home, and it didn't raise my property value one iota. Not to mention the sweet and love I put into it, which wouldn't be compensated. A sensce of home and security also likewise won't be compensated in a buyout. This is why the bar needs to be so high. Property is more then monetary value, it is also hope, dreams and security.

Also how much will the company that gets the property invest in it. The government could turn around and take it away from whoever they gave it to, at any time. Remember the city council is just speculating that the new owners will raise more money and make more jobs. Will the city retake the property if the new owners don't perform?

Ann Althouse said...

Craig: One way to answer your question is to ask whether a judge would admit that in his opinion. He wouldn't. Yet there is a way of deciding cases that make each case a kind of statement in an ongoing dialogue with other institutions. Here, the state courts could develop state constitutional law, state legislatures could pass statutes in response, city government has the role of making the next move, and so forth. And, of course, the President can take this into account choosing the next Supreme Court nominee, whom the Senate can grill over this very matter. The nominee, for his part in the dialogue, will say, unless he or she is very daring, "I cannot answer that question because it is an issue that may come before the Court."

Dad said...

Is there a reason the private developers could not buy the property from the rightful owners at a price that was acceptable to the owners? Is it that the price would be too high? Too bad.

Ann wonders how much the courts should involve themselves in reassessing the work of local governments. I would say they should involve themselves when the question is a constitutional one as in "Is it a public use?" Else, what's the constitution for?

Jean723 said...

Ala Justice Thomas, who truly hits the nail on the head:

The Court has elsewhere recognized “the overriding respect for the sanctity of the home that has been embedded in our traditions since the origins of the Republic,” … when the issue is only whether the government may search a home. Yet today the Court tells us that we are not to “second-guess the City’s considered judgments,”... when the issue is, instead, whether the government may take the infinitely more intrusive step of tearing down petitioners’ homes. Something has gone seriously awry with this Court’s interpretation of the Constitution. Though citizens are safe from the government in their homes, the homes themselves are not."

Ann Althouse said...

Dad: The Court is just defining the term "public use." The New London project can certainly be seen as generally benefitting the public.

As to paying the homeowner whatever it takes to get him to move. Picture yourself as a taxpayer in the city with an urban development project of the highest quality - one that is even owned and run by the city (not by private developers). Now, the homeowner, knowing the importance of the project demands four times what he could get in the normal market if he wanted to sell. You like your tax money being used to pay the extortionate price the homeowner demands?

Jean723 said...

"The Court is just defining the term "public use." "

Redefining it. As they will do again and again and again to suit the needs of the government.

Dad said...

Ann, I think you are confusing public "need" with public "use". It might benefit the public, but is that the standard?

What extortion? The market goes up when demand goes up. That is how it works. You want it so bad? Pay for it. Developers should not be the only ones who can make a killing. It shouldn't be taxpayer money anyway, but the money of the project developers.

Bless Justice Thomas.

partysan said...

Ann askes: "As to paying the homeowner whatever it takes to get him to move. Picture yourself as a taxpayer in the city with an urban development project of the highest quality - one that is even owned and run by the city (not by private developers). Now, the homeowner, knowing the importance of the project demands four times what he could get in the normal market if he wanted to sell. You like your tax money being used to pay the extortionate price the homeowner demands?"

Shame, Shame. We all know the buyouts duruing the taking process are hardly ever fair unless the homeowner is willing to fight in court. Many are not.

Ann Althouse said...

Partysan: You're not understanding. The reason this doesn't happen is that under the power of eminent domain the govt only has to pay "just compensation." I was responding to Dad, who was speculating about a better system in which you would get voluntary compliance from the homeowner through free bargaining.

Dad: As to what standard the Court came up with for what amounts to "public use," they left it vague, but said that what the city in this case did was good enough.

All you conservatives: why aren't you interested in federalism today?

Fred Ochsenhirt said...

The problem is, has there ever been a government-supported project that doesn't provide the benefits New London claims this one does? How do you differentiate between this one and the politically-connected developer who want to condemn property to build a Best Buy? The store provides jobs, increases tax revenues, and attracts residents who like to shop in big box stores. Is that not a public benefit? I'd argue the certainty of public benefit is greater than in Kelo, where New London doesn't have a developer looking to take on the project. What happens to the residents if you tear down the houses and the land just sits vacant? What about knocking down lower-income housing to build mansions? That would certainly increase both property and income tax revenue for the city, particularly if the low-income residents had to leave for a town that doesn't tear down houses to hand the land over to private developers. Pardon me for cynicism, but I don't trust the courts to act as checks on underhanded dealing between corrupt city officials and bankrolled developers based on the "nuance" of Kelo. We've now defined the commerce clause and the fair use clause into irrelevancy, and that is something we shouldn't be defending.

Ron said...

Ann: so the extortion by a single individual for their home is bad, but when such strong-arm tactics are applied to whole communities by government it's not as bad? I can't wait until we get a court test of a purely political claim of "eminent domain." Bulldozer Gerrymandering becomes a temptation.

Jean723 said...

"We've now defined the commerce clause and the fair use clause into irrelevancy, and that is something we shouldn't be defending."

Exactly! The redefining of these terms render both the language and the law meaningless.

As our rights become less and less "abslute", the Constitution becomes meaningless. It is all up to whatever "nuance" or "definition" the court wants to give it.

If that doesn't scare you, then you better go read some history!

Fred Ochsenhirt said...

Federalism isn't the answer here. It wasn't even the right issue in Raich. The right issue is whether we have a system of government with limited enumerated powers. Raich was a bad decision not because it hurt the concept of federalism, but because the Court expanded the government's enumerated power to regulate interstate commerce to the point of meaninglessness. If the activity in Raich was interstate commerce, then everything is. Federalism isn't the answer here. The Constitution specifically restricts the ability of government to take private property to cases where the property taken is for the public use. The Court in Kelo defined that away, too. It's hard to imagine any government program that doesn't have some expressed public benefit. That the Court's decision devolves power to local government isn't good in and of itself, if the process of doing so eliminates Constitutional controls on such power.

Dad said...

Ann, shame on you again. Telling partysan she doesn't understand is a put-down, and a misplaced one at that. She understands perfectly well that the system is rigged against the owner of the property being taken. To me, "just compensation" is what the market will bear. But I'm old-fashioned.

Matt said...

Thanks for honestly, authetically, and rightly cutting through the hysteria that I've seen both from the left ("Wal-Mart is coming to take your home!") and the right ("BIG GOV'MINT is coming to take your home!") on this case.

DaveG said...

>> All you conservatives: why aren't you interested in federalism today?

Because (IMHO) that was recently proven to be a somewhat foolish horse to bet on under Raich.

Again, I caveat this by stating that I am just trying to find some consistency in the two rulings that fits my admittedly naive world view, but it simply escapes me.

I don't think I would thrive as well in the ambiguous world of law as I do in the "it works or it don't" world of software development I live in.

Meade said...

"All you conservatives: why aren't you interested in federalism today?"

Meme of the week.

Ann Althouse said...

Dad: Both Partysan and you are using the word "shame" toward me, so don't lecture me about saying "you don't understand." That's rather ridiculous.

Matt: Thanks for the appreciation.

The issue, everyone, is how much to leave to the political processes and how much to lock down with constitutional limitations. It's hard to answer this and easy to disagree with the Court's attempt to set the balance. I understand the view of the people who want more done in the name of constitutional law (though I bet you turn around and complain about some of the limitations the Court imposes in the name of constitutional law). But you've got to see the forces that pull the Court to the center, toward moderation. I don't think it's a bad thing.

Jean723 said...

Federalism? The loss of individual property rights has nothing to do with Federalism.

The Constitution is not silent about the taking of private property. What the court did yesterday is redefine the meaning of "public use", thereby rendering the Fifth amendment meaningless.

Of course, some people don't care about individual rights. But I daresay those agreeing with Kelo haven't found eviction notices on their doors.

Basically however, Kelo now allows government to take land if it feels it can put it to better use than the homeowner. Where does it stop?

Jean723 said...

My final take is to leave you with a quote given by my good friend Glenn Reynolds who rightly see this decision for the mockery of law and freedom that it is. The quote is from Joseph Story, given in 1833:


"It seems to be the general opinion, fortified by a strong current of judicial opinion, that since the American revolution no state government can be presumed to possess the transcendental sovereignty to take away vested rights of property; to take the property of A. and transfer it to B. by a mere legislative act. A government can scarcely be deemed to be free, where the rights of property are left solely dependent upon a legislative body, without any restraint."

And as Glenn says, this is now the law!

Atrocious!

anthony said...

It seems to me the Court struck a reasonable balance between property rights and government power.

With all due respect, I beg to differ. Using the "careful planning and lots of community input are important in sustaining the use of eminent domain for economic development" test that Tom Merrill suggested the Supremes might want to see, the New London development has failed spectacularly. How much more community input do you want than turning out 2/3 of the city council on their asses?

I understand Tom Merrill's and your reluctance to cast in with what must seem like a mob frenzy over this issue, and wanting to follow the erudition of the majority opinion. However, the majority have opened a Pandora's box with their relativist stance on private property, which is saying that with the right soothsaying (centralized planning and perfunctory community input), the large investor has preferential property rights over the small investor. That cannot possibly be equal treatment under the law.

If this is a states' rights issue (which might put us on a messy collision course with recent interpretations of the interstate commerce clause, see the Savannah dispute between SC and GA), what is wrong with putting a moratorium on these economic development takings until all 50 states have weighed in with what they will individually do about the issue?

The economic moral hazards of this ruling are staggering to consider. The developers and city officials who desire the takings assume no risk whatsoever. If the promised increased tax revenue never materializes, then neither the developer nor city officials are held fiscally accountable. And the damage by the time everyone realizes the project's fiscal goals are a bust are not easily nor inexpensively reversible. In the case of New London, who foots the bill for the damage if Pfizer decides for example, to move their facility to Hyderabad, India, just five years after moving in, falling far short of even the most optimistic projections for a 15 year return on investment?

As noted elsewhere in the blogosphere, the enhanced economic value delivered by residents and businesses who pioneered the area and created a viable community that forms the basis for the desirability of the underlying land in the first place is reduced to a preferentially and not adversarially assigned value. Those who were planning to let their descendents sell out decades later because they realize the intrinsic value of property they own have their investment horizons abruptly cut short. To add insult to injury, they are paid present value of the property computed upon the assumption they wanted to sell when they are forced to sell by the taking, and not net present value computed to when they anticipated to sell (if such a future date could be established). This is just an arbitrage play by the developers who want to pull in the value creation timeline without having to put in the time and money to do it via the open market.

What is so important about following a master planned development instead of creatively working around holdouts (as the NLDC has shown they can for sites too politically sensitive to attack today), and patiently waiting and buying them out as time and funds permit, that justifies piercing the security of citizens' private property?

MrsWhatsit said...

How can it be a "pull toward the center, toward moderation" to toss out the meaning that the term "public use" has carried through hundreds of years of legal precedent, and replace it with a brand-new definition? I'd use the word "radical" instead.

And I don't see why federalism should have anything to do with it. Yes, the particular government in this case happened to be a local one -- but the new and improved definition of "public use" the Court has invented in Kelo will work to the benefit of any level of government, including the largest. The impact of this decision has far more to do with the balance of power between government and citizen than it has with that between the Supreme Court and the condemning government.

dax said...

I have practiced commercial real estate for over 28 years. I have been involved in large mall developments, mediun shopping center develoments and industrial developments of every size.
Never have I seen a legitimate developer with a legitimate project halted by an individual. Never have I seen a small property owner get "screwed" by a developer. In the REAL WORLD it doesn't happen. Actually the contrary is the norm.
Sure, some projects have been delayed because Mr. Jones didn't want to go along with the other 40 home owners in selling the assemblage but in the end, Mr. Jones gets everything he wants and usually much more.
With this new ruling, a developer now doesn't have to "bend-over-backwards" to meet the demands of a property owner who's property the developer wants. Let the Government do the work, give the property owner "fair market value" and be done.
In the REAL WORLD, this ruling blows a hole in individual property rights, shatters property valuations, and inserts government where none is needed.

Baronger said...

"All you conservatives: why aren't you interested in federalism today?" - Anne

I think on this issue most of us are libertarian. Also conservatives are generally for smaller government, with less power. This ruling is for bigger government.

As I state in my blog Scribblings there is no security even for the developer in this. The city will in essense be holding a club over the developer's head. "We gave you the land, turn a profit and pay lots of taxes or we will take the land from you and give it to someone who can."

This whole thing smacks of central planning and 5 year plans. What is conservative about that? Go for what the market will bear. As has been said, the city shouldn't be paying anything. The developer should attempt to find their own property and work out an agreement.

Timothy K. Morris said...

All old news to us here in Michigan. Our state S Ct endorsed a similar expansive view of public use in Poletown Neighborhood Council v. Detroit, 410 Mich 616 (1981) and then saw the light, so to speak, in County of Wayne v. Hathcock, 471 Mich 445 (2004), explictly overruling Poletown. The decision was based on our state constitution's "public use" clause, so it's only of limited use, but still interesting.

the Rising Jurist said...

You want Federalism? How about Federalist 51: “In a society under the forms of which the stronger faction can readily unite and oppress the weaker, anarchy may as truly be said to reign as in a state of nature, where the weaker individual is not secured against the violence of the stronger.”

And as Justice Thomas noted in his dissent, that's exactly what has happened here: "[E]xtending the concept of public purpose to encompass any economically beneficial goal guarantees that these losses will fall disproportionately on poor communities. Those communities are not only systematically less likely to put their lands to the highest and best social use, but are also the least politically powerful."

Dad said...

Ann, please accept my apologies for saying "shame" to you and for lecturing you.

And thank you for the opportunity to comment on your blog. I enjoy reading your posts.

chuck_b said...

I find Glenn's point made here most compelling: "It used to be that tax revenues were to be spent promoting the public good. Now, apparently, they're a public good in and of themselves." This really bothers me.

The takings powers of the federal gov't arise out of the Fifth Amendment from the Bill of Rights which was enacted to further limit the power of government. Now we use the Fifth Amendment to empower government at the expense of the governed.

Do the economic benefits of redevelopment outweigh the property rights of individuals? Not necessarily so, and I think in this case not at all. Property rights are first and foremost for the individual. Yes, it helps everyone if people own property, keep it up, pay taxes, etc. But those benefits accrue on top of the individual's right to be secure in his ownership. The individual comes first.

New London doesn't look a distressed place to me. It looks to me like a quaint little town run by savvy business people who want to transform the place into an exclusive enclave. They shouldn't be allowed to get away with it in this manner at the direct, personal expense of real people.

Ann Althouse said...

Dad: Thanks. I appreciate the comments and know people are distressed about the case.

Jean: You say "Federalism? The loss of individual property rights has nothing to do with Federalism," but of course the scope of constitutional rights affects federalism. Abortion rights limit what states can do regulating abortion. Free speech rights limit local experiments regulating pornography. Eighth Amendment rights restrict the states' use of the death penalty, but not as much as they would if they were interpreted as broadly as some people think is appropriate. Equal protection rights have been constrained to permit experiments by states with affirmative action programs. Establishment clause rights have been construed narrowly enough to permit cities to try voucher programs for schooling. There's an obviousl interplay between federalism concerns and the interpretation of rights!

If you generally support federalism, that means you like the idea of freeing state and local government to set their own policies in response to local ideas about how things ought to be done. You like decentralized decisionmaking.

And it's important to note that federalism includes the decentralizaed approach to rights: the state constitutions can be used as a basis for finding constitutional rights.

dax said...

dad - "just compensation" is NOT what the market will bear.
Just compensation is what a third party decides the property is worth. There is a HUGE difference my friend.

Matt said...

Yes--there's both "liberal" federalism and "conservative" federalism. I'm a "Liberal Federalist" in that I believe that the Tenth Amendment gives states strong powers to "set the bar higher" than the federal government does (for instance, setting a state minimum wage higher than the federal standard) provided that the federal standard is adhered to as a uniform minimum. I'm a traditional liberal on federal power, though--for instance, I think Raich et al were rightly decided, even though I disagree with the policy being implemented through federal law. That, to me, is where the rubber hits the road, legally--do we uphold policies we dislike and reverse policies we like when they're legal/illegal respectively, or do we just fly off into result-oriented jurisprudence? I don't particularly care for the policy choices upheld in Raich and Kelo, but I think they were wholly legal choices for the respective governments to make, and that's the question at stake--not the wisdom of the policies.

Charles said...

My other worry, besides a potential erasing of private property, comes from the idea of government notifying a person their property is about to be seized. First, just compensation now goes through the roof because the property is obviously more valuable to support this economic engine. Second, it requires the little guy property owner to fight all the way to the Supreme Court, an expensive proposition for most of us. So next time, to get a 5-4 the other way, what sharecropper is going to spend millions of dollars and years of time to keep his house?

Finally, when are we as a society ever going to figure out that "sending signals" to some group doesn't work when they only see what they wanted, with no direct and firm explanation of the "signal?"

Slocum said...

New London doesn't look a distressed place to me. It looks to me like a quaint little town run by savvy business people who want to transform the place into an exclusive enclave. They shouldn't be allowed to get away with it in this manner at the direct, personal expense of real people.

Yes, I noted the NY Times spin--it wasn't a 'blighted' residentail neighborhood, it was a 'faded' residential neighborhood. Interesting that the writer threw that little bit of editorializing in there when, in Kelo, no finding of any kind of 'blight' or 'fading' seems to have been necessary. If this had been a neighborhood of spanking new waterfront McMansions they could have been condemned and pulled down anyway by the same logic. But of course, in practice, a city would never go after a rich neighborhood like that -- those people are too well connected and can afford too many good lawyers.

What 'faded' seems to mean has nothing to do with the condition of the homes themselves but rather about the occupants -- who were apparently ordinary 'faded' people of no power or consequence.

Pastor_Jeff said...

Ann,

As a layperson, I have perhaps a simplistic question: How does this ruling square with the 4th Amendment right to be secure in our persons, houses, papers and effects against unlawful searches and seizues? Isn't the right to be secure in our homes (property rights) one of the most basic foundations of freedom?

Re: Federalism. This is a Consitutional issue. I think New London has over-reached here and crossed a line drawn by the 4th Amendment, so the very question itself is whether the state or town can enact a law that appears to violate the 4th Amendment. The majority opinon punted by saying "We trust local officials to decide what's appropriate under the 5th Amendment."

Greg D said...

Why is it that the only time "Liberal" Justicesclaim to believe in Federalism is when stomping over explicit Constitutional rights (2nd Amendment, or this case)?

Building a road is "public use". Building a government building is "public use". Letting a rich person build a home where two poor people's homes used to be isn't public use, unless they're plannign on letting us come use their bathrooms when we're in the area.

Let's put it this way:

If the actions being contemplated in Kelo are "public use", what isn't?

When everything is "poblic use", the term has no meaning.

DaveG said...

Well, as they say on their web site:

The City is presently in the midst of a period of economic revitalization with significant development initiatives underway in the State Pier, the Downtown and the Fort Trumbull areas. The most notable result of these efforts is the recent completion of Pfizer, Inc.'s $300 million dollar Global Research and Development Headquarters on the City's waterfront. This is what New London is all about.

Emphasis added.

Sean Sirrine said...

From O'Conner's dissent:

"In February 1998, Pfizer Inc., the pharmaceuticals manufacturer, announced that it would build a global research facility near the Fort Trumbull neighborhood. Two months later, New London’s city council gave initial approval for the New London Development Corporation (NLDC) to prepare the development plan at issue here. The NLDC is a private, nonprofit corporation whose mission is to assist the city council in economic development planning. It is not elected by popular vote, and its directors and employees are privately appointed. Consistent with its mandate, the NLDC generated an ambitious plan for redeveloping 90 acres of Fort Trumbull in order to “complement the facility that Pfizer was planning to build, create jobs, increase tax and other revenues, encourage public access to and use of the city’s waterfront, and eventually ‘build momentum’ for the revitalization of the rest of the city.” App. to Pet. for Cert. 5"

Hmmm, that doesn't sound like a transfer from A to B? It doesn't matter if you use public purpose instead of public use when you're goal is to benefit B.

Jonathan said...

I'm with Dad and anthony. The central issue is the concept of "just compensation." A price that is agreeable to both buyer and seller in the absence of coercion is just. If govt wants to buy property, let it pay the market price. If that price is high, maybe govt shouldn't buy. Forcing a transaction at a lower price via eminent domain hides the real cost of the transaction, forcing individual property owners to bear a disproportionate part of the costs of public-use transactions whose costs should be spread equitably across the taxpaying public.

Because of eminent domain, our politicians and bureaucrats are accustomed to paying too little for property, with the difference coming from the wallets of expropriated property owners. No wonder they complain when eminent domain is threatened. Kelo makes the situation worse by effectively increasing the inventory of private property that is subject to expropriation.

It's nice to think that state legislatures will now redefine the eminent-domain process to provide more protection for property owners, but I think that's a lot to hope for. Kelo and similar cases are in the courts mainly because legislatures don't want to deal with this issue. And as Glenn Reynolds suggested, the kinds of interests that benefit from eminent-domain property seizures are likely to have a great deal of influence in state legislatures.

G said...

Ann,

It is immaterial whether the court has left open the possibility of ruling differently in other cases. Kelo virtually assures that few lawyers will take a similar case without getting paid up-front while informing their clients that a win is unlikely.

Kelo also places residential property at the low end of the food chain as it is never more cost efficient than other types of property. Residential property provides less tax revenue and increases costs since commercial property never has school age kids.

jeff said...

It will be interesting to see if cities all the sudden start salivating over possilbe "public uses" that can be put to non-property tax paying charities and religious organizations (aka: churches).

Dad said...

Dax, Just compensation is a price that is agreeable to both buyer and seller. I see nothing "just" about a price that is forced upon the seller of a piece of property. The market can decide.

Matt said...

The market does decide (or is at least the basis) in an eminent domain case. Appraisers are utilized and the goal is to figure out market value of the property when condemned. In most cases, they're able to come to an agreement without resorting to ED. Where it becomes an issue is where for some reason (sentimental value, general obstreporousness) the property owner refuses to accept an offer based on market value as determined by an appraiser/through an appraisal proceeding. It's most certainly not "I decide what your property is worth, no appeal."

dax said...

dad - Not in this case.
You have a third party deciding "just compensation" How is that between a buyer and seller?? In this scenario, there is no communication, let alone negotiations between buyer and seller. How can the seller realize his highest price??

Chew on this:
Property values are determined by comparable sales. Property taxes are based on property values/comparable sale prices. If sales prices are being artficially set by a third party and not the legitimate market place, what is the impact on future tax revenues?

Jim Gust said...

The deference in Raich was to federal politicians, the Congress, ignoring the democratic expression of the will of Californaians. Absent a federal player in Kelo, the Court is now ready to defer to local politicians. Deference to politicians is the commonality in the two cases.

Would anyone's opinion be influenced by the fact that here in Connecticut the Governor and former mayor of Bridgeport are in jail on corruption charges, and the former mayor of Waterbury is in jail for criminal activity uncovered during another corruption investigation? Our local politicians are not to be trusted with power such as the Surpeme Court is handing out.

This case was about enforcing a constitutional right that local and state officials trampled upon, and the Supreme Court has said, "Be my guest. You have no recourse in the federal court." This should not stand.

When you see Rockefeller Center in NYC, you will see that the building had to be redesigned and rebuilt around one holdout who refused to sell. That was the right result, notwithstanding the other public benefits and the costs to the private developer.

Jonathan said...

Matt wrote:
>>The market does decide (or is at least the basis) in an eminent domain case. Appraisers are utilized and the goal is to figure out market value of the property when condemned. In most cases, they're able to come to an agreement without resorting to ED.<<

That's not a market, that's extortion. A market is where you ask me how much, I quote you a number and we negotiate until we either reach agreement or one of us walks away. Extortion is where you say, "sell it to me at this price or else" -- in this case, "or else" refers to the threat of ED. The other commenter's remark about Rockefeller Center makes this point perfectly. The property owner should not have to sell if he doesn't want to, even if the powers that be or his neighbors think he is being unreasonable.

Steven said...

Ann -- The clause says "public use", not "public benefit". The public in Kelo may very well benefit from an alternative private use of the land, but that doesn't change the fact that the land in question will be being owned and used exclusively by private entities, not the public in general or the public as constituted into a government.

Matt -- As any modern economist will tell you, generalized market price is a (useful) fiction; the actual market price of something is no less than the minimum the owner will sell it for, no matter what his neighbor will sell an identical good for. And sentimental value is value just like scarcity value or use value. Still, since "just compensation" is enshrined in the Constitution, an appraised "market value" is the best we can do, so for purposes of law it will have to do.

Matt said...

But "this price or else" is not how ED works (at least in theory--I understand that in practice, it can be different story)--you're free (and to an extent, encouraged) to challenge the valuation placed on the property by putting in your own evidence (typically an appraiser) as to why the valuation is incorrect.

And the Rockefeller Center example conflates the questions of whether the power exists and whether the power is rightly exercised in a particular case (as folks on both sides have done in this debate).

chuck said...

[T]he Court struck a reasonable balance between property rights and government power?

Then you would support California taking my house and selling it to a developer. The "public use?" A developer that wants to expand the house, repaint it, and resell it at a higher price, greatly increasing the tax revenue since, in California, the tax rate is pretty much controlled unless the house is resold.

If you do not believe that is a reasonable fear, you don't understand how things are done in California.

SurfWired said...

How does abortion relate to eminent domain, vis-a-vis Federalism?

The Constitution is entirely silent on abortion and anything related to it. There certainly is no restriction on the power of States to regulate it.

However, the Fifth Amendment is explicit, and it was long ago decided that explicit guarantees of rights applied to all levels of government, wasn't it?

Kathleen B. said...

surf wired: the constitution and the bill of rights are not the limit of rights that we have.

MrsWhatsit said...

dax, I think you and Dad are actually in agreement. Dad is talking about what he thinks "just compensation" OUGHT to mean, not what it does mean as a legal term of art. He thinks that compensation is only just, or fair, when a buyer and seller decide together what a piece of property is worth. This, if I'm correctly reading your comments, is also what you think. But you are correctly pointing out that as a legal term of art, "just compensation" means the amount that is paid to a homeowner as a result of the appraisal and valuation process in eminent domain proceedings, which is not necessarily the same amount that a free buyer and a free seller would agree upon. I think you are both actually on the same side in this fight!

And Matt, it is not true that the market decides what property is worth in an ED case. The appraisers who will determine ED compensation use "comparable" sales of other properties in similar neighborhoods to do so. But unless the appraisers use only "comparables" that were also in the path of big, lucrative development projects -- not likely, from what I've read about New London -- the "comparable" values won't take into account the most important factor in the market equation: demand.

The private-market value of the condemned properties went up the minute they were targeted for development, because the developer expects to make money on them. In a private market, that added value would be reflected in the selling price, because the seller would be free to hold out for a price that fairly reflects the worth of that property to that developer. In the ED process, on the other hand, the value determined from "comparables" necessarily leaves out the increased demand on the targeted properties, and results in an artificially depressed valuation. The real-world value of those properties DID increase. But only the developer, and not the seller, will get a chance to profit from that increased value.

That's what makes this whole thing pernicious. The valuation process in ED proceedings was set up to protect taxpayers from having to pay excessive prices for land that the government needs for public purposes. But in this case, the process is being used to help private parties profit at the expense of the original owners. That is not how the market is supposed to work.

SurfWired said...

Oh, and chuck is dead-on about California. This is a particularly frightening ruling in a place with property tax reform, since new buyers of existing property often pay many times as much in taxes. Here in San Diego, "ENRON by the Sea", where the city is $6 Billion in the hole, and Eminent Domain excesses have already been rampant, this sudden release of any reasonable restraint is a frightening development.

See, San Diego has many similar Development Corporations, one for each neighborhood, generally. "Comprehensive redevelopment plans" are a dime-a-dozen, and can easily be invoked for any purpose. Few of our neighborhoods are blighted; the median home price is over $600K, and median homes here tend to be far smaller than across much of the US. But that lack of blight hasn't stopped "redevelopment," generally by large companies, while smaller but successful businesses are forcibly displaced.

Here's the best known case, with links to stories about others. http://www.granhavana.com/main/press.shtml

SurfWired said...

kathleen-

I am aware of Amendments IX and X. For that matter, I am pro-choice.

However, I find the enforcement of explicit rights to be a primary purpose of the Supreme Court, and I think I'd have agreement from the Framers who devised it.

Charles said...

The Supreme Court which legislates and governs least, governs best. Just to paraphrase a famous man who fought against an unaccountable system of lifetime Divine inspired rule.

dax said...

mrswhatsit - Oh, I agree with dad. Although it may have been awkward, I was trying to reenforce what he said.
Reading contracts on Friday afternoon and blogging don't mix. Much like Quaaludes and Subarus.

anthony said...

There just so many bad angles to this ruling I find it irresistable to point out some other aspects not getting a lot of play in commentary.

"Public use" is most assuredly not preserved when private corporate rights are asserted on the developed property. You can bet your last dollar that the property developed from a takings will be aggressively secured with private rights to protect the interests of the property owners. No First Amendment protection on the developed property for example, because the private interests of the developer trumps that. I can peacefully assemble and protest against an anchor store in the development in front of say, the county courthouse. But woe unto me if I do the same in front of the development within their property line. This is a conflation of the term "public use" into "public benefit", with the added perversity that no one ever seems to notice that government property somehow always escapes this treatment.

Furthermore, small businesses evicted through eminent domain takings are compensated solely for the property, and not the business. Relocation expenses of the business, and lost revenue due to the move through disruption and re-establishment, are not mandatory components of just compensation, yet any businessman would vehemently argue that the effort it took to create those business relationships associated with that location are just as tangible as say, royalty rights are to an author.

Jim Gust said...

Today's Washington Post:

"Land Ruling Favorable for D.C.

Supreme Court decision will provide leverage for stadium deal."

I think that sums up the likely economic impact of Kelo pretty well.

Ann Althouse said...

G writes: "It is immaterial whether the court has left open the possibility of ruling differently in other cases. Kelo virtually assures that few lawyers will take a similar case without getting paid up-front while informing their clients that a win is unlikely."

I think it's GOOD if the Court has a resolution of the problem that discourages litigation. The important thing to recognize is that people structure their transactions with an eye toward avoiding what would provoke litigation. Here, knowing the Kelo situation and hearing the warning about what would go too far, we will try to structure our projects so that they do not contain the factors that will make litigators think it is worth it to drag us through the courts. The case sets the incentives. You don't have to actually litigate for the rule to have its effect.

So the case gives some incentive not to be abusive. Admittedly, it doesn't prevent all abuse, but no rule of law ever does, and if a different rule had been set in the case, different parties would find strategies for abuse.

Jonathan said...

Discouraging litigation against property theft by public officials with unlimited budgets doesn't strike me as a good outcome. It's like stopping fights by forbidding victims to fight back. The Court would have done better to side with Kelo and clarify eminent-domain limits, and hence property rights. That would have discouraged the kind of litigation that should be discouraged, while leaving open justified litigation in self-defense.

SurfWired said...

WRT Ann's comment about litigation...

How is it inherently good to discourage litigation purely by setting very low standards that favor excessive seizure of property and nearly eliminate legal recourse by property owners with malice toward none?

One might also suggest that we could eliminate "violence" in society by requiring citizens to have their hands tied behind their backs whenever walking outside, so that they could be robbed or raped without any "violence" taking place.

This is similar logic.

See my post above for how ridiculous the standard set by the Court really is. My city, San Diego, has a "Development Corporation" for nearly every one of its neighborhoods. San Diego real estate is not blighted; even homes in the traditional ghettoes are being bought and renovated by private citizens, because real estate demand and prices are so high. So if the standard is that some unaccountable DevCorp comes up with a plan that promises higher property tax revenues and "more jobs", it can eminent domain well-maintained properties and thriving neighborhoods, and transfer the properties to private businesses to use for private development to be occupied by private businesses and residents, then there is NO standard at all. There is just another laughable paperwork requirement, which may actually be simpler to fulfill than the current permitting process!

If THAT is what it takes to discourage litigation, then bring on the lawyers! There are some things worse than lawsuits.

Harkonnendog said...

Ann,
Thanx for your thoughts on the case. Like many others I am disappointed that you agree with it.
I feel it is a power grab by and for the judiciary. Kennedy basically said that "public use" is some amorphous thing that can't be defined but he, and other wise judges like him, will know it when they see it.
Rulings like this, rulings that empower judges and make the law more ambiguous, are wrong.
This may be a dumb analogy, but I'll use it anyway... Whenver they make a new NFL rule people talk about how it will help offenses or make injuries less likely or whatever... but I judge the rule primarily by whether or not it asks the officials to make a judgement call. Judgement calls make things worse in the NFL. They lead to inconsistency- in effect to different rules being used at different times and for different people. This applies to laws as well, I think.
Asise from that- this ruling will have terrible consequence. First, the fact that you don't know what a judge will decide does NOT act as a warning to developers or local councils... it favors the rich- it favors those with more to lose. Rich people can chance litigation poor cannot.

Beyond that, it takes less than 20k to bribe a county councilman- and if you've bribed one you've bribed them all since they generally support each other's bribes. So for 20k of risk a developer can reap millions! I haven't heard of judges being bribed much but the mere threat of litigation will make most poor (blighted) homeowners give up without a fight.
I don't know what kind of fantasy world Kennedy lives in- where developers don't use intimidation or bribe local officials.
Aghh...
Anyway, thanx again. And thanx for providing a comment section for me to express the frustration, too.
Cheers!

G said...

Ann,

I don't see why a finding for Kelo wouldn't have limited litigation as much if not more than the way the court did find. As far as the "amber light turning red" as Merrill states, his and Justice Steven's assurances are both vague and unconvincing.

What I, and many others, find objectionable about the Kelo decision is its interpretation of the words "public use". What you call nuance, I see as self-serving semantics. "Public use" simply does not mean "public benefit", neither now nor in the 1700s. If the framers had meant "public benefit" they would have said it. The Constitution was not written to make governing easier, but harder, and twisting the definitions of the words does no one a service.

I fully realize that, occasionally, adjustments for changes that occur due to the passage of time are necessary. In my opinion, this is not one of those occasions.

Ann Althouse said...

G: You're right. The clear rule proposed by the dissenters would be even more effective in curtailing wasteful litigation. And I am not a huge proponent of the majority's approach over the dissenters'. I just object to the hysteria over the case. If it had gone the other way, I would have been fine with that as well. The dissenters may very well have had a better position. All I'm saying is, it's not so bad. Don't flip out about it.

G said...

Ann,

You are so considerate, but don't worry, it'll take more than a Supreme Court decision to flip me out. ;) I pretty much try to find the humorous side of things.

In fact, I wrote a rather tongue-in-cheek post about Kelo yesterday. Of course, it's probably not as funny as I think it is.

Another Obituary

Sloanasaurus said...

Did you see the email posted on the corner:

The quickest way to reverse Kelo is to find some conservative town in Utah somewhere to shut down an abortion clinic in order to make room for a Wal-Mart.

Kelo will turn out to be one of the dumbest decisions in the Court's history.

Xrlq said...

"All you conservatives: why aren't you interested in federalism today?"

Oh, I dunno, but I have a sneaking suspicion it might just be Because. This. Case. Was. Not. About. Federalism. Granted, a true blue, dyed in the wool, more-federalist-than-thou type might argue that the whole incorporation doctrine was wrong, and that we should go back to the days when none of the Bill of Rights applied to the states. Or, I can even see a more nuanced version of that theory, where one might argue that in this case, the doctrine of *selective* incorporation wasn't quite selective enough, the takings clause being one of the provisions which, as Justice Thomas wrote of the Establishment Clause in the Newdow case, "resists incorporation." But the Supreme Court appears to be unanimous in the view that the takings clause *does* apply to the states, and the general population overwhelmingly assumes that it always did. Once we all concede that that same takings clause applies to federal, state and local governments alike, what "federalism" argument is left? Surely you're not arguing that the meaning of the phrase "public use" ought to depend on which level of government is condemning whose land?!

DSmith said...

The actual change to existing law in Kelo is very small, as I understand it (IANAL). So in that sense, it's not a big deal.

I think the reason you're seeing all this reaction is simply that we have a ton more political awareness and discussion going on in the country now. The blogosphere and everything that goes with it have given a lot of people new eyes, and new voices. I believe most Americans are appalled at the sort of thing that Kelo embodies, and would have been last year, and the decade before, had they been asked. The difference now is Americans are paying attention, and speaking up. So I see this "flipping out" as a good thing. Hopefully the Supremes, and the legislatures, are listening.

As earlier commenters so aptly put it, mere "public benefit", or revenue enhancement, is not "public use". If the land is not directly used by the public, or by its agents (the government), then it is hard to see how it can be claimed a "public use".

The only partial exception, which I find distressing but unavoidable for technical reasons, are industries that require right-of-way for their very existence such as railroads and utilities. Note that in compensation, these industries are heavily regulated and required to service all members of the public at a standard price.

Using Eminent Domain for something that isn't a true "public use", is wrong, and a violation of the Fifth Amendment, no matter what the current state of rulings says. It's not something that happens in a free country, or to a free people. I think this is what the great unwashed are saying. I know it's how I feel.

Jim Gust said...

Ann, I'm puzzled by your "Who is John Galt" attitude toward this case. This is constitutional jurisprudence according to Orwell, or perhaps Lewis Carroll--"private will mean public whenever I say so." How does that encourage respect for the law, or the rule of law? The Court got to this point through a long series of tiny steps, each looking reasonable by itself. The public wasn't paying attention, but it is now, and this final result is just obviously wrong to anyone with common sense.

My biggest disappointment is that no one joined in Thomas' dissent.

John Ryskamp said...

The Kelo homeowners can petition the Court for a rehearing "on the merits" (Rule 44). The Court will grant rehearings to consider "historical evidence" bearing on the Framers' intent. Reid v. Covert, 352 U.S. 901(1956). The Kelo case is based on the Fifth Amendment. When James Madison presented it to Congress, he said that it "prevents every assumption of power in the legislative or executive." When he said "every," he meant a fact of the individual. A fact of the individual is a fact of human experience which does not change even when government seeks to destroy it. A fact of the individual is one in which government

1. seeks to eliminate the fact;
2. at best only succeeds or would, if allowed, only succeed, in eliminating incarnations of it;
3. in the process violates other rights;
4. brings to bear a disproportionate effort; and
5. does not consider alternatives which could achieve the goal.

Housing is such a fact:

1. New London seeks to destroy this housing;
2. New London itself has granted that these
homeowners will have to, and will, seek other ousing;
3. Association, speech and several other protected facts are sought to be destroyed by this eminent domain action;
4. the Kelo eminent domain action is part of a
nationwide, well thought-out plan between developers and politicians to use eminent domain to turn housing over to private developers;
5. the Kelo eminent domain action is not narrowly tailored to achieve a compelling government purpose.

If the Kelo homeowners present this argument to the Court, they will save their housing.

John Ryskamp said...
This comment has been removed by a blog administrator.
Ann Althouse said...

John Ryskamp: You accidentally double-posted, so I deleted the extra post. But, on the substance of your post, there is zero chance of this happening.

Ann Althouse said...

To all the commenters who are outraged by Kelo: I stand by my original post. I really wish you'd take the time to read Justice Stevens's opinion. He has to deal with a whole line of precedent. If you would read about these cases and make the effort it takes to understand them, you would see why the outcome reached in this case was expected and moving to a different position would have been surprising and difficult. Also, read the text of the oral argument to get some insight into the problems with Kelo's claim. You're expressing a lot of outrage and pointing to basic arguments, but you aren't taking the trouble to understand the other side. For this reason, your arguments are not even beginning to get into the area where you could persuade me.

John Ryskamp said...

You're wrong again. The Raich lawyers sought to raise the level of scrutiny for the commerce clause. They did NOT argue to raise the level of scrutiny for medical care, which is also a fact of the individual.

Justice Stevens SPECIFICALLY noted that they had NOT argued to raise the level of scrutiny for medical care, and indicated that the Court would have done so if the lawyers had argued for it. Here is his comment:


"The case is made difficult by respondents' strong arguments that they will suffer irreparable harm
because, despite a Congressional finding to the
contrary, marijuana does have valid therapeutic
purposes. The question before us, however, is not
whether it is wise to enforce the statute in these
circumstances; rather, it is whether Congress' power
to regulate interstate markets for medicinal
substances encompasses those portions of those markets
that are supplied that are supplied and consumed
locally….[Respondents do not contend] that any section
or provision of the CSA amounts to an unconstitutional
exercise of Constitutional authority."

Do you really want to know what the problem is? The problem is with lawyers like you, Ann, who don't understand the Constitution, and therefore do not make the argument which would win cases for their clients.

By the way, Ann, when James Madison uses the word "every," does he mean housing? Let's see what you're made of.

Ann Althouse said...

Not sure how we shifted over to talking about Raich, but the reason an individual rights argument wasn't used there was that it had already been rejected in earlier cases.

John Ryskamp said...

We're using Raich because Stevens is indicating what the Court has ALWAYS indicated (in Lindsey v. Normet, San Antonio School District and Dandridge): if the proper Constitutional argument is made to raise the level of scrutiny for facts, the Court will do so. Protected speech is a fact, freedom from an establishment of religion is a fact, freedom from involuntary servitude is a fact, and all these facts get very high levels of scrutiny.

What do these facts have in common? They are facts of the individual.

Is housing also one of those facts? Yes. The Court is simply saying: show us why medical care, or housing, or any other fact, is like freedom from involuntary servitude, and we will raise the level of scrutiny for it. We will have to do so, because Founder James Madison says the Bill of Rights protects "every" such fact.

So once again, Ann, when James Madison says "every," does he mean housing? Frankly, I don't think you have a very good grounding AT ALL in the Constitution; trying to be witty doesn't make up for this.

Just answer the question this time, please?

You can also check out Ryskamp, John Henry, "Kelo v. New London: Deciding the First Case Under the New Bill of Rights" . http://ssrn.com/abstract=562521

Ann Althouse said...

"Frankly, I don't think you have a very good grounding AT ALL in the Constitution; trying to be witty doesn't make up for this."

Well, please don't tell the University of Wisconsin.

John Ryskamp said...

And still no answer. And you teach Constitutional law? In your glibness you do injustice to individual rights. How do you live with yourself?

Ann Althouse said...

Note to all: Being disrespectful to me is not a good strategy for getting me to respond.

Kathleen B. said...

yeah, really.

and I just don't see how anyone can say that a case where a federal court defers to the findings of a local government is "Not. About. Federalism." or maybe I don't understand what Federalism is.

Mycin said...

Kathleen,

I think the disconnect in all this is due to this being a property rights issue. Many people (including the majority of the justices) don't appear to give property rights the same level of respect as, say, freedom of speech or the press.

For example, let's pretend the New London city council, claiming the action was "for the good of the community," had shut down a local newspaper that was publishing scathing editorials about the council. Would you have made your post if the SCOTUS had just deferred the issue back to the city council, stating that the council was best placed to determine what is best for that community?

"But that's different," you say. Which is precisely my point. To some of us, it isn't different at all. Granted, no right is absolute -- there are limits on them all. But for those of us who hold property rights dear, it is disappointing to see a ruling that erodes those rights be so flippantly dismissed by others.

So, when you make or see arguments such as "it's about federalism" or "local political pressure will keep abuses in check" or "SCOTUS left open the possibility of reconsidering if abuses can be proven," try imagining how you'd see the argument if the issue was, say, freedom of speech.

Mycin said...

Ann,

Further to my reply to Kathleen...

While reading the various web commentary about the Kelo decision, I've noticed something. A significant number of legal "scholars" (Eugene Volokh comes to mind) strike a similar tone to yours, one of bemused curiosity. "What's the big deal? This doesn't change things all that much."

I'll grant you that it doesn't move the bar much, as far as I can tell. However, it does do at least two things.

First, it gives SCOTUS' blessing to any government (of any size) arbitrarily confiscating one person's property and giving it to another person as long as some sort of compensation is paid and lip service is given to the "greater good." Yes, this has been going on for years all over the country, but has until now been very controversial. Now it has the supreme court's blessing. Maybe in the grand scheme of things, this is a small step from the previous status quo, but it has crossed a line that bothers a lot of people.

Second, it has brought to light an issue that has been mostly off the radar screen. Most of us don't like to face the fact that, as far as property rights are concerned, the US is basically a socialist country. Whether individuals are allowed to keep "their" property is completely at the whim of the collective. For all practical purposes, that was just as true last week as it is today. The Kelo decision just points this fact out in a way that is impossible to ignore.

I'm sure people like yourself who have for years been familiar with these sorts of legalities are wondering what the big deal is. From what I've learned in the last few days, I agree that for SCOTUS to have decided this case the other way would have been a much bigger departure from established precedent that deciding it the way they did.

That doesn't make it right. I'm not a lawyer, not even remotely. But, I do understand that there's often a big difference between what's legal and what's right. This is one of those times. The courts have shown in the past that they are willing to abandon precedent in favor of upholding the principles embodied in the Constitution. Just not this week (or this year, decade, century or millenium, for that matter).

And, if I may say so, the condescending attitude that many legal "scholars" regularly display when dealing with us lowly laypersons is one of the reasons the profession is held in such contempt by much of the public. I've seldom seen you display that attitude before now, which is one reason I regularly read your blog. Maybe you don't realize you're coming across that way.

Ann Althouse said...

Mycin: I am not trying to be condescending, and I don't know if you've read through all the comments here, but some of the know-it-all attitude from commenters who lack legal training is a tad provoking!

Xrlq said...

Kathleen B:
"I just don't see how anyone can say that a case where a federal court defers to the findings of a local government is 'Not. About. Federalism.' or maybe I don't understand what Federalism is."

The latter. Federalism is about the idea that certain enumerated powers are entrusted to the federal government, and others are left to the states. It has nothing to do with local governments, which are not part of the "federation" to begin with, being allowed to run roughshod over a constitutional provision that clearly applies to them. Nor did the Supremes attempt to draw any "federalist" distinction anyway. If the federal government were so inclined, it could condemn your house tomorrow to make room for a new Wal-Mart in full reliance on Kelo. That's why the "federalism" defense is 100% phony.

Xrlq said...

Ann, I'm not sure it's about a know-it-all attitude so much as a difference of opinion over how much weight stare decisis should be entitled to. I for one have little doubt that Kelo was decided "correctly" according to the line of cases that preceded it, as surely as Roe v. Wade, Brown v. Board of Ed, and every other landmark case was decided "incorrectly." Some of us lawyers - and almost all nonlawyers - think that where the competing principles of "because we said so" and "because the Constitution itself says so" collide, the former should give way to the latter.

Kathleen B. said...

xrlq: oh really. so you are really going on record as saying that the Feds trampling on local governments does not impact Federalism. Really?
somehow I doubt fellow conservatives will agree. and I also doubt that given a situation with a fact pattern you agreed with, you would agree.

Your defense about local vs. state is just splitting hairs. here is the definition of Federalism I found at dictionary.com: "A system of government in which power is divided between a central authority and constituent political units." says nothing about states but not cities in there.

Ann Althouse said...

Xrlq: There are so many cases that could be cited to refute your statement about what federalism is. To name a few :National League of Cities -- note the word "Cities" -- one of the most prominent federalism cases, Printz v. United States (local officials commandeered to enforce gun regulation), City of Boerne v. Flores.

You yourself are displaying this know-it-all attitude, informing Kathleen about how wrong she is. And in fact, you're the one that's wrong. Kathleen was being modest.

Finally, the Kelo Court did talk about federalism. Stevens wrote:

"Viewed as a whole, our jurisprudence has recognized that the needs of society have varied between different parts of the Nation, just as they have evolved over time in response to changed circumstances. Our earliest cases in particular embodied a strong theme of federalism, emphasizing the “great respect” that we owe to state legislatures and state courts in discerning local public needs. See Hairston v. Danville & Western R. Co., 208 U.S. 598, 606—607 (1908) (noting that these needs were likely to vary depending on a State’s “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”)....

"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,22 while others are expressed in state eminent domain statutes that carefully limit the grounds upon which takings may be exercised.2"

Kathleen B. said...

mycin: I would not say "that is different" just as I would not say that your scenario doesn't involve Federalism. Making it free speech versus property rights doesn't change the Federalism equation at all. There are MANY people who use Federalism as the reason why Small Town, USA should be able to ban porn. Just as Federalism is also implicated in a case were the feds are deferring to a local government. I am not saying that is right or wrong, I am saying that arguments that Kelo is not about Federalism do not make sense.
So I really don't understand your point at all.

Xrlq said...

"Oh really. so you are really going on record as saying that the Feds trampling on local governments does not impact Federalism. Really?"

Of course it would. I just don't think that enforcing a constitutional prohibition against either a state or, in this case, a subdivision of thereof, is "trampling" anything. The only genuine federalism issue here - whether the takings clause of the Fifth Amendment should even apply to state and local government - was decided a long time ago. Incorrectly, IMO, but incorporation is what it is.

"Your defense about local vs. state is just splitting hairs. here is the definition of Federalism I found at dictionary.com: 'A system of government in which power is divided between a central authority and constituent political units.' says nothing about states but not cities in there."

Of course it doesn't, because the dictionary definition is a generic one. There can be federations of cities; the United States just doesn't happen to be one of them. In this instance, as the country's name suggests, the only constituent political unit is the state.

Ann, I never denied the Supremes dropped the "f" word in Thursday's decision. Having only skimmed the case, I didn't know they if they had or not, and am terribly surprised that they did. That doesn't take away from my greater point that dicta aside, the case did not "attempt to draw any 'federalist' distinction" in determining the case. They didn't rule that local and state governments are exempt from the Fifth Amendment, nor even that they should be given more deference than the federal government should.

That's why the federalism argument is phony. It's not about expanding the rights of states, or even subdivisions of states, against the federal government. It's about expanding court deference to all levels of government, particularly the legislatures. In that sense, it could almost be characterized as a separation of powers case, but as a federalism case?! Not hardly, unless you really think the case only applies to state and local government.

Ann Althouse said...

Xlrq: Well, you gave two reasons why the case had nothing to do with federalism and you are just wrong to say that federalism analysis in American constitutional law has nothing to do with local government. It doesn't matter how a dictionary defines the word. What counts is how the Court uses the term in the cases. The second reason has some merit and I've already written somewhere in these comments about the point. But you're right that if the Court defines an individual right, it limits the federal government too, but the notion of narrowly defining rights to give states room to experiment with their various policies is frequently found in the case law. Certainly, with respect to eminent domain, cities are in the forefront, and the narrow interpretation of the right is done in the context of thinking about what cities ought to be able to do, particularly on this point about economic development being a proper public use.

Scott Lawton said...

Anne,

First, thanks for the civil discussion and sticking with the long comment thread. (Sorry I'm coming in late.) People respect your opinion as a moderate voice, which is why so many of us are disappointed that you don't appear to see what we see.

Per your suggestion, I just read the oral arguments. I think they show quite clearly why so many people are upset. e.g.

JUSTICE SCALIA: You can take from A and give to B if B pays significantly more taxes. You accept that as a proposition?

MR. HORTON: I do, Your Honor.

O'Connor's example of replacing a Motel 6 with a Ritz-Carlton is equally revealing.

There is just no way that these are "public use" -- and IMHO no amount of consistent, long-term, blah-blah-blah plans can make them so.

As for precedents, I agree with Kelo's attorney:

MR. BULLOCK: We think that those decisions can be consistent with ruling in favor of Petitioners in this particular case.

He didn't get to develop the point in detail then, but I'll bet it was covered in written argument.

I'm not sure if any of us can persuade you, but I hope you'll at least gain more insight into why many of us think that the decision crossed a line that is quite bright in fact (if perhaps not so bright in the legal details).

Finally, here's how everyone can take action to mitigate the effects of Kelo: join the Castle Coalition (CastleCoalition.org). The usual disclaimer: my only affiliation is the modest $ I've contributed over the years.

Scott Lawton said...

Sorry, "Ann" not "Anne". :(

Ann Althouse said...

Scott: Read Stevens's opinion. He simply does not go as far as that point Scalia got Horton to admit he supported. Nor does he go as far as O'Connor's Ritz-Carlton idea. It's just NOT in the majority opinion!

Xrlq said...

"Well, you gave two reasons why the case had nothing to do with federalism and you are just wrong to say that federalism analysis in American constitutional law has nothing to do with local government. It doesn't matter how a dictionary defines the word. What counts is how the Court uses the term in the cases."

Close, but not quite. What they literally say is great, but what really matters in the end is the rule of law, as we all know it will be applied. Printz is a bad example because it wasn't a problem of commandeering local governments per se; it was about the federal government commandeering all or part (in this case, part) of a state. If local government had any "federalism" type sovereignty of its own, we'd be seeing Printz-like cases every time a state legislature "commandeers" local governments within its own jurisdiction, or every time Congress "commandeers" the District of Columbia. In both cases, all the same policy arguments are there, particularly in large states, but the federalism issue is not.

Carl said...

Ann, I agree with you.

I'm a full-on supporter of property rights. But I think Kelo properly decided--and indistinguishable from Midkiff.

Unrestricted eminent domain would be unconstitutional. But Kelo demands no such thing. The Constitution doesn't compel Federal Courts to substitute their judgment for elected municipal officials.

Kelo is a pro-conservative, pro-Federalism decision that bolsters a bit of judicial deference commonly confined to the legal endangered species list. Not all developers are scum; not every Mayor's on the take--if the are, call the cops and vote against crooked councilmen next November. Isn't that what we tell liberals?:

"[T]he fact remains that state and local governments have a fair amount of power under our constitution to enact either. We often tell folks on the left that not every social ill should be cured by the courts, and that should apply no less when "conservative" interests are at stake."

Connecticut has the right to be socialist--and I have the right not to live in Connecticut.

I'm quite conservative--which is why I'm puzzled that Kelo critics on the Right sound like anti-Wal-Mart kooks. Look to state and municipal government, not federal courts, for redress. And don't assume the sky is falling.

Ann Althouse said...

Xrlq: Your point simply goes to the fact that the cities are political subdivisions of the state in the view of federal law (which is all the Supreme Court talks about and all the US Constitution is).

Ann Althouse said...

Carl: Thanks for writing. Nice to have some suppot around here!

G said...

Carl,

I can't argue that the decision follows precedent that has been set over the last hundred years or so.

I am left wondering, however, which other parts of the Bill of Rights you would have us "look to state and municipal government, not federal courts, for redress".

You and Ann seem concerned about the visceral reaction to Kelo and it worries me as well, but I think it might be a mistake to dismiss it as an overreaction. It may also be a mistake to presume it is only about Kelo.

John Ryskamp said...

What you all fail to understand is that the American people have simply changed their mind regarding housing. They used to give it minimal scrutiny--they used to be more tolerant of eminent domain. As the Court has said, from time to time people in this country simply change their minds with regard to a fact. They changed their mind with regard to involuntary servitude, they changed their mind with regard to establishments of religions, they changed they mind with regard to protected speech.

And they have simply changed their mind with regard to housing. You're simply going to have to get over it and deal with it. They now want a MUCH higher level of scrutiny for housing. What is so difficult to understand about that? But, understand it or not, it is going to happen, either through the courts or through legislation. Legislation designed to restrict eminent domain over housing for private development, inevitably raises the question: why? What is so special about housing?

And the answer is that the American people have decided that housing, for Constitutional purposes, is identical to protected speech, or freedom from an establishment of religion.

They have also, I believe, changed their mind with regard to other facts--quite a few facts: medical care, liberty, maintenance and education. You are just going to have to get used to a legal environment in which strict scrutiny is applied to these facts.

The disabled community is also working on another one: mobility. Is it like protected speech? You tell me. I don't know. But get used to the idea that there is a continual debate in the country as to which facts are, for purposes of Constitutional scrutiny, identical to facts which currently enjoy a very elevated level of scrutiny. Just get over it, and learn to deal with it.

I have explained how this matches Founder intent, but here is the citation again. Sooner or later--whether you like it or not--you are going to have to ask yourself, even if it's only in the privacy of your most private thoughts: When James Madison uses the word "every," does he mean housing? Start thinking about that question now.

Ryskamp, John Henry, "Kelo v. New London: Deciding the First Case Under the New Bill of Rights" . http://ssrn.com/abstract=562521

Mycin said...

Kathleen,

Do you really think SCOTUS would uphold a city council closing down a local newspaper as I described? You don't seem to have a problem with it, but I bet the justices would.

What about passing a law against any and all abortions or against peaceable assembly of the people?

Based on the federalism reasoning in this case, I don't see how they can justify striking down ANY local law. The fact that they could rule the way they did in Raich shows that they don't care one whit about federalism. They just side with leftist ideology and find whatever excuse they need to do so.

Just for the record, I'm a big fan of federalism. That's why I think Roe should be overturned (not that it ever will be). These sorts of divisive issues are best decided at the local level whenever possible. I believe the vast majority of things the feds involve themselves in violate the federal concepts this country was founded on.

The federal government has taken it upon itself to crowd out state and local governments in so many ways in all areas of our life that it is difficult to even grasp it all. I don't think it too much to ask that they use some of that vast power and threat of force to defend one of the bedrock freedoms this country was founded upon. But, apparently, it IS too much to ask in the case of private property rights.

John Ryskamp said...

THIS IS FROM SCOTT SAWYER, ATTORNEY FOR THE KELO HOMEOWNERS, ON JUNE 27. THERE ARE SEVERAL OTHER CASES IN WHICH HOUSING WILL BE ARGUED TO BE A FACT OF THE INDIVIDUAL, LIKE PROTECTED SPEECH, AND THEREFORE MERITING AN INCREASED LEVEL OF SCRUTINY.

Thank you for your continued interest. I will relay and discuss the same with the other attorneys. Take care.

Scott

Scott W. Sawyer, Esq.
SAWYER LAW FIRM, LLC
The Jill S. Sawyer Building
251 Williams Street
New London, CT 06320
(860) 442-8131 Facsimile (860)-442-4131
*****************************
----- Original Message -----
From: John Ryskamp
To: sawyerlawyer@myeastern.com
Cc: saviak@proprights.com ; jberrios@herald.com ; ligree@nytimes.com ; k.moran@theday.com ; mckenzie@uic.edu ; TEdwards@cdpublications.com
Sent: Saturday, June 25, 2005 3:40 PM
Subject: Kelo


Hi Scott:

You represented the Kelo homeowners before the Supreme Court. I have no idea whether you are planning to petition for a rehearing on different grounds, but I think you should. This time you should argue not to raise the level of scrutiny for eminent domain; rather, you should argue to raise the level of scrutiny for housing itself. I think the Court is waiting for you to make that argument.

In the Raich case, Justice Stevens, writing for the Court, just recently said that the Court is willing to listen to arguments for raising the level of scrutiny for the underlying facts of a case. As you may know, the Raich lawyers argued to raise the level of scrutiny for the Commerce Clause. In Kelo, you argued to raise the level of scrutiny for eminent domain. Neither argument work.

But a different argument will work. Justice Stevens (who also wrote Kelo) said in Raich:

"The case is made difficult by respondents' strong arguments that they will suffer irreparable harm because, despite a Congressional finding to the contrary, marijuana does have valid therapeutic purposes. The question before us, however, is not whether it is wise to enforce the statute in these circumstances; rather, it is whether Congress'power to regulate interstate markets for medicinal substances encompasses those portions of those markets
that are supplied that are supplied and consumed locally.[Respondents do not contend] that any section or provision of the CSA amounts to an unconstitutional exercise of Constitutional authority."

He is saying that the "question before us" was the wrong question, and that the lawyers should have argued the underlying fact of medical care. They should have argued that the law "amounts to an unconstitutional exercise of Constitutional authority" because it violated the right to medical care. They should have argued that there is an individually enforceable right to medical care.

Likewise, you should argue that there is an individually enforceable right to the fact underlying your case: housing. The Kelo homeowners can petition the Court for a rehearing "on the merits" (Rule 44). The Court will grant rehearings to consider "historical evidence" bearing on the Framers' intent. Reid v. Covert, 352 U.S. 901(1956). The Kelo case is based on the Fifth Amendment. When James Madison presented it to Congress, he said that it "prevents every assumption of power in the legislative or executive." This is the historical evidence bearing on the intent behind the Fifth Amendment.

What did Madison mean when he used the word "every?" He meant a fact of the individual. A fact of the individual is a fact of human experience which does not change even when government seeks to destroy it.

A fact of the individual is one in which government

1. seeks to eliminate the fact;
2. at best only succeeds or would, if allowed, only succeed, in eliminating incarnations of it;
3. in the process violates other rights;
4. brings to bear a disproportionate effort; and
5. does not consider alternatives which could achieve the goal.

Housing is such a fact:

1. New London seeks to destroy this housing;
2. New London itself has granted that these
homeowners will have to, and will, seek other ousing;
3. Association, speech and several other protected facts are sought to be destroyed by this eminent domain action;
4. the Kelo eminent domain action is part of a
nationwide, well thought-out plan between developers and politicians to use eminent domain to turn housing over to private developers;
5. the Kelo eminent domain action is not narrowly tailored to achieve a compelling government purpose.

Other highly protected facts--such as protected speech and freedom from involuntary servitude--meet these tests. The Court is waiting for you to compare these facts to housing, and claim that, for Constitutional purposes, housing is identical to them. Then the Court will raise the level of scrutiny for housing, and you will save your clients' housing.

You may also want to take a look at Ryskamp, John Henry, "Kelo v. New London: Deciding the First Case Under the New Bill of Rights" . http://ssrn.com/abstract=562521

Please let me know if you have any comments or questions.

Cordially yours,
John Ryskamp

Hoots said...

You missed Thomas' point. It isn't about defining a vague or even a definitive line. It's a matter of principle of "public use" versus "public purpose". As an Originalist, Thomas is correct in stating that the original definition of "public use" was intended to mean that which is operated or employed by the public, not a private owner for the apparent "benefit" of the public. The benefits are subjective at best: tax revenue increases for the local municipality while a small portion of "the public" (the previous home owners) are completely forgotten.

The Public Use Clause was intended to give the governments a very limited and narrowly defined excuse to confiscate private property in exchange for "just compensation", just as every other piece of the Constitution was meant not to limit government powers, but to expressly give them a permission. If it wasn't specifically mentioned in the documents, it was never intended to be their role.

The only argument against this is either: 1) the Constitution is a "living, breathing document" that evolves with society (of course, this renders the document meaningless since any current society could just write it's own new Constitution and be done with it), or 2) Governments should be Statist, deriving all power from God instead of their constituents and allocuting permissions to the citizens below them.