The pundits, polls and press have spoken. But I’m not ready to jump on the bandwagon against the Supreme Court decision on Kelo v. New London (eminent domain). For a Jewish critique of toxicality and business, I would like to see more analysis (iyyun) of the implications for business and its environmental effects on (etc). The Kelo decision may imply that governments will empower more “public use” development into various conservation lands. Yikes. (Still, such powers preceded Kelo and have been used to expand wilderness. Over-development is a huge problem beyond pre-existing eminent domain law. Is this a teiqu?)
What’s missing in the analysis of Kelo? A nagging problem: How does Kelo fit into long-range “takings” strategies to gut government regulation of environmental and occupational health? For more than a decade, corporations have organized legislation, litigation and ‘grassroots’ efforts to undermine environmental laws as “regulatory takings”. As John Echeverria (Georgetown Environmental Law and Policy Institute) explains:
Advocates of the modern "takings" agenda go beyond the original understanding of the taking clause and Supreme Court precedent to argue that regulations which limit the potential value of land and other property frequently result in takings. According to this view, takings occur under a wide variety of local, state and federal rules — from zoning regulations, to historic landmark laws, to wetlands permitting requirements, to habitat protection measures, to cite just a few examples.
Philosophical opponents of government regulation, and interest groups which stand to benefit from this agenda, have seized upon the takings issue as a political tool for seeking to confine the sphere of democratic decision-making. If the public had to pay every time a government official enforced some rule or regulation, there would obviously be far less regulation; at the same time, however, other property owners and other citizens protected by environmental protection standards or other laws would suffer economic, environmental, and other harms.
So far, I’ve found this concern in only a few places. For instance, Jeffrey Dubner of American Prospect:
Article comments
1 - John Ryskamp
Here is email regarding a petition for rehearing of Kelo.
Dear John:
Thank you for your continued interest. I will relay
and discuss the same with the other attorneys. Take
care.
Scott
----- 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