Despite the self interested arguments of law professors like Peter J. Smith of Washington University Law School, public outrage over the Kelo v. New London decision is entirely justifiable and not at all “the product of a serious misunderstanding of the court’s decision.” As every competent lawyer knows, eminent domain only provides just compensation for property holders who have the means to hire the best of lawyers. The Stevens decision will thus provide a new boon for the most pernicious of trial lawyers.
According to departing Justice O’Conner’s dissent :
“Over two centuries ago, just after the Bill of Rights was ratified, Justice Chase wrote:
"An act of the Legislature (for I cannot call it a law) contrary to the great first principles of the social compact, cannot be considered a rightful exercise of legislative authority ... . [A] law that takes property from A. and gives it to B: It is against all reason and justice, for a people to entrust a Legislature with such powers; and, therefore, it cannot be presumed that they have done it." Calder v. Bull ....
“Today the Court abandons this long-held, basic limitation on government power. Under the banner of economic development, all private property is now vulnerable to being taken and transferred to another private owner, so long as it might be upgraded--i.e., given to an owner who will use it in a way that the legislature deems more beneficial to the public--in the process. To reason, as the Court does, that the incidental public benefits resulting from the subsequent ordinary use of private property render economic development takings "for public use" is to wash out any distinction between private and public use of property--and thereby effectively to delete the words "for public use" from the Takings Clause of the Fifth Amendment. Accordingly I respectfully dissent.”
Article comments
1 - Steve S
Your first two links need fixing.
2 - Aaman
Fixed by yr editors:)
3 - ryanclarkholiday
had to post PHD huH?
4 - carmine
Thank you Aaman. Still a novice at this stuff. I guess the PHD really means just Piled Higher and Deeper, which is why it comes after the BS.
5 - John Ryskamp
John Ryskamp
[edited address]
Writing your own eminent domain proposal? Wonder how
it might affect outcomes, even those involving religion? Here are
some tips. It's not easy to find the
right words to accomplish what you want. For example,
forbidding eminent domain for "economic development"
won't stop a single eminent domain action because the
term is so vague it doesn't distinguish one type of
eminent domain action from another, which is what Justice Stevens pointed out in the Kelo opinion (it is the reason the Kelo homeowners lost their case, by the way).
The proposal put forward by Oregonians in Action requires
government ownership of seized land. However, it's
easy to get around that by having the government
retain title at the same time it gives effective
control to a private party.
The devil is in the details, so watch out! So here's
a comparison of
some other typical state proposals:
CALIFORNIA
This state's proposed Constitutional amendment
contains two key provisions:
"Private property may be taken or damaged for a stated
public use only when just compensation, ascertained by
a jury unless waived, has first been paid to, or into
court for, the owner. Private property may not be
taken or damaged for private use."
It appears the authors meant to tighten up "public
use" by mandating that it be "stated." However, any
formulation can be developed to satisfy this
requirement, without changing the outcome in any
eminent domain action. The problem is that no
definition of "private use" is provided. In default
of that, the courts would be likely to apply the
traditional idea: "private"-forbidden-use is eminent
domain used in violation of another law or as a result
of some criminal violation.
"Private property may be taken by eminent domain only
for a stated public use and only upon an independent
judicial determination on the evidence that the
condemnor has proven that no reasonable alternative
exists. Property taken by eminent domain shall be
owned and occupied by the condemnor or may be leased
only to entities that are regulated by the Public
Utilities Commission. All property that is taken by
eminent domain shall be used only for the stated
public use."
The eye-opener here is "no reasonable alternative."
Strict scrutiny says that the government action must
be narrowly tailored to achieve a compelling
government interest. "Narrowly tailored" is usually
taken to mean that there is no reasonable alternative.
Under this provision, therefore, it would appear that
all eminent domain is subject to strict scrutiny. One
wonders if the authors realize this, and if so, if
they realize the level of opposition likely to develop
by governments and private interests which have always
used eminent domain under minimal scrutiny. Note that
this provision provides strict scrutiny for housing
with respect to eminent domain, and so immediately
raises the question with respect to housing and other
facts, in what other contexts they receive strict
scrutiny? In the alternative, what is the likelihood
that a pressured court would reconcile "no reasonable
alternative" with "public use" to find that "no
reasonable alternative" in this proposal, means
"rationally related to a legitimate government
purpose"-effectively gutting the proposal? Or does
this language change the role of the State in the
Federal system, making it impossible for the state to
legislate for the general welfare? The owner,
occupation and leasing provisions seem to be merely
more invitations to creative evasion, and not likely
to change the outcome of any eminent domain action.
CONNECTICUT
The Connecticut General Assembly decided to conduct
its review of eminent domain law through a specially
convened Joint Judiciary and Planning and Development
Committee, which began hearings on July 28, 2005.
There seems to be a split between two provisions:
"Eminent domain shall not be exercised with respect to
housing unless it is substantially related to an
important government interest"
or
"Eminent domain shall not be exercised with respect to
housing unless it is narrowly tailored to achieve a
compelling government interest."
These provisions immediately raised the question, what
about eminent domain over a business which provides
the income-that is, the maintenance-for its owner?
Then is this an appropriate addition:
"Eminent domain shall not be exercised with respect to
maintenance unless it is narrowly tailored to achieve
a compelling government interest."
ALABAMA
Signing Alabama's revision to eminent domain on August
3, 2005, Governor Robert Riley said: "What our new law
does is restore the level of protection that existed
prior to the Supreme Court's ruling in June," even
though the decision merely ratified previous rulings
on eminent domain. The Alabama law purportedly
eliminated eminent domain for industrial, commercial,
office, retail or residential development, but could
be used to construct roads, public buildings and to
remove blight; blight included areas which are
obsolete, faulty in arrangement or design, or in
danger of becoming blighted. As Dana Berliner, an IJ
attorney, said of the blight provision: "All of these
are ways of saying we'd like to construct something
else here that has a different layout." (The governor
replied that he was willing to consider changes.) The
apparent exceptions to "economic development" are more
problematic than the language about blight. In the
case of a concept such as "economic development"
which, as Justice Stevens pointed out, does not, in
the first place, distinguish a different kind of
eminent domain, making "exceptions" to "economic
development" merely puts the question, what is the
Constitution? We are back to square one; the concept
of "exceptions" retards, rather than advances, the
inquiry into eminent domain.
For a discussion of the historical background of the
Constitution, see this article, which will appear in
the November 2006, issue of the Stetson Law Review:
Ryskamp, John Henry, "Kelo v. New London: Deciding the
First Case Under the New Bill of Rights."
Now, what about religion? Would this protect
churches against eminent domain:
"Eminent domain shall not be exercised with respect to
an establishment of religion, or the free exercise
thereof, unless it is narrowly tailored to achieve a
compelling government interest."
6 - Balletshooz
This might be an extreme reading of eminent domain. Wouldnt it be pretty rare that someone would undergo a taking?
7 - Dave Nalle
Hardly, BS. Here in Texas there were people lining up to take advantage of Kelo before the decision even came down - see my article on the recent passage of our eminent domain bill located here.
Dave
8 - Matthew T. Sussman
The ruling in my eyes was less of a defeat for property rights and more of a victory for states' rights.
Now propositions can come to the people and the states can vote according to their needs.
So bring me a prop on eminent domain and I will shoot it down for my state, because I am against it. But perhaps another state will need it more than mine.
The law is slow. Shocking!
(P.S. - trying to usurp a SCOTUS judge's house for a hotel is petty and spiteful.)
9 - Nancy
Long live petty & spiteful, then.