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Away From Home

Thursday, June 23, 2005

Kelo debate

I suppose many (well, at least one) of you are expecting a big post from me regarding my thoughts on Kelo v. City of New London, which was handed down today.

Well, I'll fulfill half of that.

At the moment, I don't much feel like organizing my thoughts into a coherent post. So, I'll let you start the debate.

The ball's in your court. Make the first point, and I'll debate you.


  • I believe that this interpretation, and the state statute give too much power to elected officials by letting them take land from regular citizens and sell it to larger developers. The true intent of eminent domain is for things like schools and actual government buildings, not for real estate revitilization. This gives elected officials the ability to bulldoze small businesses and homes to make way for newer ones.

    The homes in question will be replaced by an office building. True, it may help the local economy to have that building there, but it violates the rights of life, liberty, and the pursuit of happiness of these people to make them relocate just so someone else can make some money and pay taxes on a new building.

    If a real estate developer can't get someone to move, tough, they should make other plans. There are other people in this world besides them, like the people whom economic development is meant to help.

    Of course, I'm not certain my thoughts even matter because this is the Supreme Court here, and no one ever gets to hold them accountable for anything. Now, I'll admit that this is important, for them to be independent, but it sure would be nice if they'd remember there's a whole nation out here.

    With that, I await your thoughts.

    By Blogger Logan C. Adams, at 6/23/2005 07:55:00 PM  

  • 'Rational basis plus'

    While the fact that Stevens could couch the matter as a states rights issue really bothers me... and the fact that I am vehemently against the use of eminent domain takings by local governments to facilitate "economic development" (in the case of Kansas City, Kan., it's approving STAR bonds and tax shelters for NASCAR, Cabela's and Jimmy Buffett to build private enterprises while property taxes for the average household to go through the roof in the process).... and the fact that I hold the Fifth Amendment to be one of the top 5 amendments to the U.S. Constitution (fancy that!).....

    But Justice Kennedy, in providing one of the five votes in affirming the previous decision, had a bit to say in his concurring opinion, which I think should be picked up on by future courts.

    As SCOTUSblog put it quite nicely:
    "According to Kennedy, if an economic development project favors a private developer, 'with only incidental or pretextual public benefits,' that would not be tolerated even by applying the minimum standard of 'rational basis review.'

    His opinion elaborated: 'There may be private transfers in which the risk of undetected impermissible favoritism of private parties is so acute that a presumption (rebuttable or otherwise) of invalidity is warranted under the Public Use Clause.' He called it a 'demanding level of scrutiny,' thus indicating that it was something like 'rational basis-plus.'"

    By Blogger ChrisHarrop, at 6/23/2005 07:56:00 PM  

  • While I hate to quivel about your post, Logan (as I agree with you for the majority of it), I offer the following:

    I bet this is mostly just rhetoric on your part, but eminent domain abuse has nothing to do with life, liberty or the pursuit of happiness (Picky, ain't I? Especially when it seems you clearly understand the Public Use Clause of the Fifth Amendment).

    As for the Supreme Court not being held accountable, I'm certain there will be a number of test cases that draw upon Kennedy's concurring opinion, hoping to create a standard of review for these issues. While I certainly recognize that the Court has overstepped its power in granting these new powers to the local governments and depriving citizens of their rights protected under the Fifth Amendment, I don't think this will hold up long... Imagine if the flag-burning amendment was ratified; if used to pass a law barring the physical desecration of the flag, it directly conflicts with the First Amendment's restriction on Congress' ability to pass laws restricting freedom of speech.

    On a side note... After the dissent in this opinion and the one in Gonzales v. Raich, I'm ready to throw my full support behind Clarence Thomas for Chief Justice.

    By Blogger ChrisHarrop, at 6/23/2005 08:07:00 PM  

  • I'm glad you clearly picked a side, Logan. I'll argue the other side (wouldn't be much of a debate if I didn't, huh?).

    I think the point you're trying to make is that if a private owner holds the property, then there is no public use to justify the taking (or at the least, not enough of a public use). Think about the consequences of that position.

    The classical example is the blighted neighborhood. It's actually mentioned in the opinion itself. If a neighborhood is truly blighted, should a potential developer have to go in and negotiate the sale of every single piece of property in the neighborhood? The transaction costs of such a situation would effectively bar developers from the neighborhood, and the area would continue to decline.

    Remember, it was just this kind of government intervention that has revitalized large parts of DC.

    Second, remember that the requirement is for a "public use," not just public ownership. So how do we define use? I suppose one could define it as J. Thomas does, by looking back to 18th-century dictionaries.

    I refuse to use such an approach, because it's absurd to require that modern life be run according to the literal words of people 250 years ago, particularly when those people were intentionally vague.

    To help illustrate my view of "use," let's use an example. Suppose you got a surprise gift for someone. Sure, it would make the person happy -- but isn't that what you wanted? Can you really say that giving the gift was useless to you?

    Granted, the example doesn't literally hold here. New London did not condemn the land for Pfizer just to make itself happy. However, it will get use out of it -- revitalization, increased revenues, new jobs, etc, all according to a well-considered development plan. These effects are clearly not useless to a city.

    If the City is a public entity, then it must be admitted that the project is for a public use.

    By Blogger Scott, at 6/23/2005 08:20:00 PM  

  • If the flag burning amendment is ratified, then it is part of the Constitution. The Supreme Court (and, by extension, lower federal courts) interpret and apply the Constitution. They have no power to strike part of it down.

    This holds true even though a flag-burning amendment would clearly violate free speech.

    Remember, amendments are not laws.

    In such a case, the flag-burning amendment would be construed as a limitation upon the First Amendment, just as the First Amendment has been construed as a limitation upon the Taxing and Spending Clause (Congress can raise and spend money, but it can't spend that money on a church).

    And Chris, you can support Thomas for Chief all you want, but he won't get it. For the sake of this country, that is a Very Good Thing.

    By Blogger Scott, at 6/23/2005 08:25:00 PM  

  • "...nor shall private property be taken for public use, without just compensation."

    Let's say Kansas uses eminent domain to take my house. Ok, Ok, let's say Kansas uses eminent domain to take my parents' house and land. Then they sell it to Annheiser Busch, who builds a microbrewery there and starts making batch after batch of beer. Now, if that were a true "public use," I and anyone else would benefit directly from its presence.

    Yes, I have alcohol on my mind at the moment.

    But I wouldn't, and neither would you because the microbrewery would be private property, as would an office building.

    Businesses benefit the public, yes, but that does not change the fact that they are private ventures. The fact that this sort of thing could help economies, it is a violation of power.

    By Blogger Logan C. Adams, at 6/23/2005 08:44:00 PM  

  • Let me rephrase my last sentence, as it looks different from what I remember typing:

    The fact that this sort of thing could help economies is beyond the fact; by using eminent domain in this fashion on any level of government, officials are overstepping their bounds.

    By Blogger Logan C. Adams, at 6/23/2005 09:01:00 PM  

  • Ah, the O'Connor slippery-slope view. Note the huge, gaping, gigantic difference between your example and the actual Kelo case:

    New London had an actual redevelopment plan for this. It wasn't just a giveaway to Pfizer, as your example would just be a giveaway to Anheuser-Busch.

    I accept your point that the brewery would be a private venture. I accept your point that Pfizer's impending campus is a private venture. I do not accept your conclusion that privately-owned property cannot (or does not) have a public use.

    Do stadiums have no public use?

    Does Disney World have no public use?

    Do parking garages have no public use?

    Do electricity generators have no public use?

    Do waste treatment facilities have no public use?

    Clearly all of these examples have a public use, though they are all privately owned.

    Even the dissent concedes that a city can condemn a blighted neighborhood in order to redevelop it. However, if the line is strictly drawn there, think about what that would mean for cities. If a city realized that "Oh man, this neighborhood is getting run down, it's nearly a blight on our city," then it would be forced to wait until the neighborhood was clearly and unarguably blighted before it could do anything about it. Even if it foresaw the problem 5, 10, or 15 years in advance, it would be forced to sit back and watch a section of the city decay before its eyes.

    Does such a requirement make any sense at all? Why should we handicap cities by not allowing them to take action before the neighborhood becomes an utter cesspool?

    By Blogger Scott, at 6/23/2005 09:03:00 PM  

  • Logan, so are you saying that the public does not benefit from a growing economy?

    By Blogger Scott, at 6/23/2005 09:04:00 PM  

  • "Businesses benefit the public, yes, but that does not change the fact that they are private ventures."

    -my quote

    "Do stadiums have no public use?"
    -public stadiums do, if the community owns them, then that's ok.

    "Does Disney World have no public use?"
    Do parking garages have no public use?"

    -Last I checked, they charge admission to any member of the public that wants entry. That is private use.

    "Do electricity generators have no public use?"
    Do waste treatment facilities have no public use?"
    -Ok, I admit they provide an official, direct public service

    The issue is how do you define "public use." To state the obvious, I say it requires that the public have control over its use and perhaps ownership through government as well and you say it means the public benefits from it to a certain degree.

    Where the answer lies is, in all likelihood, somewhere in between.

    I will admit this much: I wouldn't mind it too much if my neighbor's house were bulldozed and a microbrewery appeared in it's place.

    By Blogger Logan C. Adams, at 6/23/2005 09:43:00 PM  

  • The American Heritage College Dictionary's (c. 1997) definition of "use" does not at all use the terms "control" or "own".

    However, it does include the following:

    "To put into service or apply for a purpose; employ."
    "To avail oneself of; practice."

    Under any of these definitions (as well as the ones I didn't transcribe), the public will get use out of the New London development:

    The property is being applied for redevelopment purposes, and the public will avail itself of the tax, employment, and other benefits.

    It is true that Pfizer, a private entity, will also benefit. Such an effect is irrelevant, just so long as a public benefit exists.

    Remember, the Takings Clause does not say that property can only be taken for a solely public use. Only that there must be public use, and that just compensation must be given. Both of those requirements are met here.

    By Blogger Scott, at 6/23/2005 09:55:00 PM  

  • Then I guess the issue is at what point does something constitute a public use, which is what the Court is dealing with right now. Sure, if they took property to build a road or railroad (both usually considered legitimate public uses), they can only be properly utilized by those members of the public that can (1) afford to buy a car and keep it titled, taxed and in working order, or (2) afford tickets for mass transit operations.

    I would contend that eminent domain takings to be sold or otherwise transferred to private hands may only be constituted as a public use if the use intended by the private individual or group is one that is already served by the government which is facilitating the taking. I realize this is not entirely rational, but it certainly would put a curb in the slew of takings that have occurred during the past 20 years. Would governments be willing to use eminent domain to aid private interests if the aim of that private interest was to directly compete with another service provided by the government?

    By Blogger ChrisHarrop, at 6/24/2005 09:18:00 AM  

  • Scott, I don't disagree with you on the flag burning amendment bit. I didn't intend to say the Court or any lower courts could test the falg burning amendment against the First Amendment.

    However, the flag burning amendment currently in Congress only dictates that "Congress shall have power to prohibit the physical desecration of the flag of the United States." If and when Congress utilizes the amendment to pass a law to prohibit flag burning, a test case could come up, I suppose, as the law -- while predicated on the flag burning amendment -- is in direct violation of the freedom of speech clause of the First Amendment based upon precedent set by the Court.

    By Blogger ChrisHarrop, at 6/24/2005 09:24:00 AM  

  • I would contend that eminent domain takings to be sold or otherwise transferred to private hands may only be constituted as a public use if the use intended by the private individual or group is one that is already served by the government which is facilitating the taking.

    You just killed the railroad. Most railroad rights-of-way were taken by eminent domain and granted to the private railroad owners. The government at no point provided railroad service.

    And on the flag-burning amendment, I still believe that the courts would construe it as a limitation on the right of free speech. No amendment in the abstract can be considered more or less important than any other; they all carry the same weight. The only way to reconcile the conflict is to hold the later amendment as a limitation on the earlier one; in fact, as previously referenced, this is how the Supreme Court reconciled the conflict between the Taxing and Spending Clause and the Establishment Clause. Because the Establishment Clause came later, it must be a limitation upon the earlier clause. I think a court would be hard-pressed to refuse the same reasoning here.

    By Blogger Scott, at 6/24/2005 06:35:00 PM  

  • Well, I must emphasize that my earlier suggestion was "not entirely rational." I haven't had my ConLaw hat on since Spring 2004, and I had to work overtime this week. Please forgive my misguided ramblings.

    By Blogger ChrisHarrop, at 6/24/2005 07:48:00 PM  

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