The only way that the Supreme Court could legitimately have found for Suzette Kelo et al. is by saying that takings with the "public purpose" of "economic development" are unconstitutional. That's a very short step away from saying that takings with the public purpose of, say, reducing pollution is illegitimate as well. The libertarians at the Institute for Justice, who brought the case in the first place, know that full well.
Scott Lemieux ( Lawyers Guns and Money blog) said prior to the decision: “To get the Supreme Court in the business of determining what is an adequate "public interest" is a very, very dangerous game, and one that is likely to have a lot of bad consequences. Just as the Rehnquist Court has developed the idea of a "regulatory taking" in order to make environmental and zoning regulations more expensive, Kelo could result in a significant number of public policy options being taken off the table.” (emphasis added)
Lemieux has offered a similar analysis since the decision. “I am sympathetic to the defendants, who were forced to sell their property for what seems to me like a boondoggle…. But once the courts start making determinations about what constitutes the "public interest," the Court becomes an all-purpose economic regulator, and history makes it quite clear that this is a state of affairs that is not good for democracy or for progressive interests in the long run. … You beat them the way the West Side Stadium was beaten; through politics. Expecting the courts to protect poor property owners by determining which policies are legitimate public interests is a sucker's bet.”
The concern here is that cases involving of individual owners are used as precedents to undermine the legal foundations for environmental and other regulations on corporate conduct. Now, let’s assume that New London is acting unfairly against the individual owners in this case. It’s not clear to me whether an abuses of eminent domain should be reined in by judicial exceptions (i.e., equity), political intervention, or – as the libertarians want – a reinterpretation of the Constitution.
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