Althouse On Kelo v. New London Decision
Dean
Ann Althouse has one of the more calm analyses of the hated Kelo v. City of New London case that I've seen.
The more time goes on, the more I'm with her.
Related Posts (on one page):
- Eminent Domain Abuse
- United We Stand
- Althouse On Kelo v. New London Decision
- Property Rights Assault?
This is corruption of the highest All-American order. We are back to Tammany Hall. Tha sad difference is that those in power no longer need to keep it under cover. Instead they have convinced you that if you stay calm you will realize that it is in your best interest to be f---ed up the a--.
Grow up.
I think she's done a good thing in outlining the probable thought process behind what went down. But, Dean, please. She calls this passage (from a SCOTUSblog-ger) "impressive":
"Try to take property rights more seriously in the future"? And that "re-shape values and attitudes" part--social engineering for municipal politicians by Supreme Court so they're a little less likely to feel grabby the next time a corporation wanders by? What-e-ver.
Eminent domain is ancient. It is as old as property rights are--indeed, maybe older--and has been in our Constitution from the beginning. To suggest that there is a "slippery slope" in action here (and "slippery slope" is one of the most common of all logical fallacies) is to suggest that somehow, eminent domain is more greatly and more often abused today than it has been in the past.
That is clearly not the case. Indeed, if you read about some of the eminent domain abuses of earlier centuries--see especially the crap the railroad barons got away with--you'll realize that squabbles over the limits of government authority in this area have been with us since the beginning, and far worse has been done in the past than what's been done here.
If you simply read the majority decision, the court made it very clear that there need to be a number of things in place before a local government can take property like this, including showing a very clear public good--and the Constitutional requirement that there be just and fair compensation (usually interpreted by the courts as being the market value plus a little extra) is still in place.
Indeed, if you look at the facts of the case, the vast majority of the property owners sold quite willingly because the price was more than fair. Only a small handful of holdouts resisted, mostly due to sentimental reasons.
Face it: the Constitution has always, always, always allowed this. You have never lived in a United States of America, or any other country for that matter, which did not include eminent domain as a government power. All the court was asked to do here was to set limits--and the limits they set are actually higher than earlier courts have allowed in other times and places.
We have free speech and elections for multiple reasons. This is one of them.
No one has ever liked invoking eminent domain. It has always wound up taking things that people were sentimentally attached to. But you know what? No one likes foreclosing on defaulted mortgages either, and there are always much sadder stories attached to those.
The Bill of Rights--that document we all treasure so much even though we don't always read it closely--very clearly states:
"No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation."
So, the government definitely has a right to do this. In the Kelo case, the compensation was just--as is typical, it appears to have been market value+extra for their troubles. Just enough that the vast majority of people in the area willingly sold without a fight. So the only thing really in question was: "is working in conjunction with private developers unConstitutional?"
It appears to me that the Constitution is unclear on what exactly counts as "public use." The court chose to grant deference to the (duly elected) local government here, but noted all the things the (duly elected) local government had done to show that it was in the public interest to work with the private developers in this case.
No one likes these things but anyone who thinks that eminent domain has ever been a fun or simple subject is fooling himself.
I have to disagree with you on this one - at bottom, unless I've the resources to sue, then my property is at the disposal of my local government. This might be fine for people living in various places in the United States, for for a resident of Clark County, Nevada, its a nightmare just waiting to happen...it might be that your local government is impervious to swag-dispensing developers, but the Clark County Commission and the Las Vegas City Council are at the beck and call of developers.
Now, we do try to get new people into both institutions - but the last guy who ran on a specifically anti-corruption campaign (he was an active police officer when he ran for office) is currently under indictement for taking bribes...and the developers managed to engineer the election of a County Recorder (a very, very obscure elective office) who would see to it that no developer ever had any problem getting the permitting through lickety-split (we managed to get her out of office).
So, great that the SC set standards for it and just wonderful that Kennedy says he might change his mind...but that wont help me if my property is condemned tomorrow under this rule...
Our right to own property is the second most important right we hold - the most important being the right to worship (or not worship) God as we see fit; it is more important than free speech, the right to bear arms, the right to vote...as long as what I own is mine, then I am a free man. Make my tenure conditional upon government approval, and I'm just a serf.
I'm all for eminent domain - but only for strictly public use. You need to build an interstate through my backyard, then you take my property, compensate me for it and off I go...but to take my property so that someone else can use it under the theory that he'll make better use of it than I will? That is tyranny, plain and simple.
I'll do what I please with it and if it doesn't generate "enough" tax revenue then that is not my problem...take my home away from me because its not making the government enough money? Where's my torch and pitchfork and set me on the road to City Hall...somone's got a tar and feathering coming to them...
And we'll note with great care that the lawyers and judges who agree with such a ruling live in areas which will never likely be subject to such shennanigans...or, why don't we try to rip down a house in Brentwood, California to put up a Super Wal Mart...it'd likely generate more tax revenue than some zillionaire lawyers house...
Anybody...? Anybody...? Bueller? Bueller...?
Dean: I suggest you not imply that I couldn't be disagreeing with you if I hadn't read the confounded thing. I had. To summarize inelegantly from Justice Thomas's dissent: the majority is following precedent, but the precedent sucks. (He goes into quite a bit of detail about how "use" should be interpreted, BTW.)
And what is this "sentimentally attached" garbage? It doesn't matter why people don't want to give up their property to build Mall of America East--that's their business. And what on Earth do mortgages in default--in which the property owner is not upholding his end of the legal contract by which he owns the property in the first place--have to do with anything?
A school, a hospital, or a stadium is a facility. It's a thing that has to be massed on a parcel of land. Highways aren't quite the same, but they have to connect point A and point B and so need to fit within physical limits. You can point to a given space and say why you need to use the whole thing for a public need.
"Economic development" is not a facility; it's a goal. It can be met in different ways. I don't care how many state procedural hoops the New London Development Corporation jumped through to come up with its precious plan. That proves nothing about whether the need for a riverfront walkway and business district is so exigent that it justifies ejecting free, law-abiding Americans from their land to build them.
Sad to say, but I have grown up too much. I used to be able to think that things were not so bad; that there were reasons why sometimes sh-t happened, but that everything would work out in the end. I'm not so sure any more.
Read Orwell or Huxley or Rand. When I read works by those authors I thought that they made interesting illustrative points, but that the kinds of things they described could never really "really" happen. Now they become commonplace.
Do not attempt to hide by confusing emminent domain with government and government employee self aggrandizement. I do not need to read the text of the decisions. Either the government can take my land and give it to a developer or they can not. Details beyond that are too fine for me to consider.
With respect to railroad barons, pointing to the existence of past abuses does not change the fact that the current decsion constitutes abuse. At least in those days railroad barons, corrupt officials, and judges stood a good chance of being shot on sight. I wonder how today's judges would decide if they had to live among the people who's houses they stole?
A practical government and economy must always have give and take, must have compromise. But this particular issue is non-negotiable; once you cross this line there is no end. Soon enough I will have my house taken away to house 3 illegal alien families because I was unwilling to support the workers necessary for Prosperity of the State.
I believe: Capitalism beats socialism. Private Property beats communism. Tell me why not in this case.
I am not just trying to rag on you. I am truly very disappointed, and very disenheartened. I am not ready to start shooting, but I would not blame anybody from New London who did.
John
P.S.
A 5-4 decision to abandon a fundamental American principal seems awfully precarious, if not downright stupid. Maybe we should let 5-4 decide new isues but require a 7-2 vote to change the status quo.
Roads, bridges, schools.. these are the things for which eminent domain could/should be used. Certainly not forcing me to sell my home to a private entity in order to build office buildings or a Wal-Mart because there will be more taxes collected.
I don't care about eminent domain abuses in previous centuries in any way other than as a model to be avoided.
I don't care if people were holding out on the New London deal because of sentimental reasons or any other reasons. Being forced to sell your property to a private developer for private use IS JUST PLAIN WRONG.
The more I think about this case, the more angry I become....
There is no "line crossed" here that has not been crossed many, many times before, going all the way back to the founding days of this Republic. There are no "fundamental American values" being attacked here, sorry, unless you think these values have been violated pretty much every year since the Bill of Rights was first ratified.
These people--very much a minority of the landowners in question, most of whom were happy to sell given the generosity of the offer--asked that the entire community give up opportunities for jobs and a better future simply because they didn't want to leave. They were granted full due process, as required by the Constitution. They were given generous compensation by duly elected community leaders who bent over backwards to make sure the compensation was MORE THAN fair. And they were given an enormous amount of due process, with public hearings and judicial review going all the way up to the highest court in the land.
In short, no Constitutional principle or "fundamental American value" has been violated here at all. You may not like the ruling but the duly elected officials in those localities have been held to be fully within their rights, to have dotted all the I's and crossed all the T's, to have satisfied every Constitutional requirement--and have been approved by the citizens in their jurisdiction to act as they did.
Get as mad as you want. People have been pitching hissy fits and temper tantrums over Eminent Domain disputes ever since the founding of this Republic, and they will undoubtedly continue to do so for as long as this Republic continues to stand. It remains that the duly elected authorities acted within their Constitutional rights, these people were granted more than fair compensation, and they were granted exhaustive due process.
Probably back in the early 1800s when farmers were forced to sell some of the land so cattlemen could be granted access to water their herds in certain ponds and lakes. And certainly if not there, then by the mid-1800s when some landowners were forced to sell their land in order that railroad companies (and later telegraph and telephone companies) could come through.
Pfizer and other companies made extensive deals with the citizens of New London, through their duly elected public officials, to provide certain goods and services. There is not so much as one whiff of bribery involved here. The Citizens of New London held public hearings and the vast majority wanted this development. The elected officials bent over backwards to offer MORE THAN fair compensation, and the VAST MAJORITY of landowners in question sold without complaint, happy with the generous offer.
Constitutional principles satisfied.
The key point here is the phrase "public USE". Public use means the public gets to use it, directly, or it is used directly by agents of the public: government employees.
Railroads and other industries that need right-of-way are an exception that is unfortunately necessary for technical reasons. Note that in those cases, we try to limit the taking to an easement if technically feasible, and when it is not we still require that the industries be heavily regulated, with regulated prices, often a direct cap on their profitability, and the requirement that they serve all members of the public at the same price. This gets us as close as possible back to "public USE" while still having it be a semi-private business. This is a long, long way from taking property from A to give to B just because you happen to prefer B as a neighbor.
These people received public hearings. They were offered funds which amounted to MORE than the market-value of their homes, PLUS EXTRA for their troubles. Most of their neighbors found this entirely worthwhile and sold out and moved.
So what CONSTITUTIONAL PRINCIPLE is being violated here?
If it's not public use, then the taking violates the Fifth Amendment. It DOESN'T MATTER that you can find lots of examples of similar violations in the past. It DOESN'T MATTER how many of his fellow citizens decided the taking was desirable. It DOESN'T MATTER how many legal wrappings are put around this, just as none of these things would matter if you were talking about violations of some other fundamental right. It's wrong, and it's unconstitutional, and it should stop.
Usually if you get to use something, it's either because you own it, or have an ownership right in it, or you have been granted the use by the owner. All rights of use derive from ownership. That's the whole *point* of ownership. So I think if a usage is somehow "public" then we have to show the public ownership that grants it. If there isn't any public ownership, how can the usage possibly be public?
Clearly, a majority of the citizens of New London found this a valid public use. After numerous public hearings, and more than one election, the citizens expressed their wishes--and of the small minority of citizens affected, most eagerly sold, having found the offer more than generous.
If your real objection is that "property was forcibly sold by A to B"--which has, by the way, happened many times in American history in the name of eminent domain--I could very easily get around that by saying, "A was forced to sell her property to the city of New London... and the city of New London then granted a 500 year lease to B."
If they did that, would your objections vanish? Or would you want the Federal judiciary to come in and rule that this was a fig leaf and that local communities had no right to do such things?
Face it guys: you don't have a Constitutional leg to stand on. The Constitution absolutely and inarguably allows government to seize property, so long as due process and fair compensation are given. Given that, what is your evidence that either due process or fair compensation were not granted in this case?
Tell me if I'm wrong about this: Your entire argument boils down to, "A can be forced to sell, but only if the buyer is the state." That's your entire argument.
No? Am I wrong? If so, what am I missing?
But I, for one, didn't realize how bad things currently are until reading the debates about this decision. A privately owned business is not what I'd consider a valid public use in the first place. And even bowing to tradition and precident it just doesn't seem to fit. Unlike a railroad or a highway or an airport flight path there's no specific route that must be followed. Unlike a cattleman in a range war there's no limited, vital resource found only in one particular location. There's no practical or geographical reason that the Pfizer plant must be built right there on top of those houses, except for the fact that the government of New London wants more money.
There's no good reason I can see why the government officials in New London should even be involved in this issue. It's properly a private business transaction between the people who own the houses and the business that wants to buy their land. And, frankly, if one homeowner just didn't want to sell their house, for whatever amount, then Pfizer should go copulate themselves. Build the plant somewhere else. Hell, chop out a corner Bugs Bunny-style and leave the houses that don't want to sell right where they are. There's got to be a better way to handle it than by giving every crooked and cash-strapped locality a legal justification to grab people's property.
But I hope you realize that I could easily restate your formulation of "every crooked and cash-strapped locality" as "duly elected public officials exercising an ancient right enshrined in the Constitution, in the full eye of public scrutiny." Right?
I mean, am I wrong about that? Did these people not have a fair and open public hearing? Were these officials not just elected but re-elected? Did the landowners not receive a full public hearing AND a hearing in court--with multiple appeals? Furthermore, were they not granted generous compensation?
The entire argument seems to boil down to, "they used eminent domain to force a property transfer from two private parties, instead of a property transfer between a private party and the state." So I have to ask: would it have been better if the state had seized title and simply leased it out? What's the difference?
Duly elected officials, in the full eye of public scrutiny, with full public debate, and with the support of the majority of residents, said that it was worthwhile to re-use this land for this purpose under the ancient--and Constitutionally enshrined--right of eminent domain. That's what happened here. And those who object seem to have no principle they are clinging to except, "well it would have been okay if the state had taken title to the land, but giving title to the land to someone else is a violation." I mean, seriously, is that it? If so, I ask again: if the state had seized title and given Pfizer a 100 year lease, would that have made it all hunky-dory in your view?
I don't think it would not fly in any court to sieze land to lease it back out to a private party.
Maybe you can find an example of this. If so I will buy your arguement, and if not, then maybe you should ask yourself why, and if you still think it is it a good agruement.
Have you ever driven across railroad tracks? If so, you drove over land "seized by the government" -- meaning, "bought from the original landowners by the government at a price the courts deemed equitable, then sold to a private company."
Also, do you enjoy using that telephone of yours? It wouldn't work if the government hadn't "seized land" (i.e. forced the original owners to sell it, with full and just compensation, and sold it to a third party.
Oh, by the way, are you using the internet to read this? If so, then it's thanks to "government seizures" that granted right-of-way to common--PRIVATE COMPANY--carriers. Most of the internet exists because of such "property seizures" (i.e. taking of property by the government and given over to private companies in exchange for just compensation to the original landowners).
We would not be having this conversation were the government not in the business of "seizing" (i.e. PURCHASING) land and "giving it" (i.e. selling by just compensation) to private companies.
If so, you were driving on land that was "seized," meaning "bought by the state at a price deemed equitable by the courts whether the original landowners liked it or not."
So if you have ever ridden on a railway, or bought a product that way shipped by railways... if you have ever driven on a state or interstate highway... if you have ever made a long-distance phone call... if you have ever used the Internet... you have used "land that was seized by the state and sold to a private company."
And by "seized," you actually mean, "land that was taken from its original owners in exchange for just compensation as determined by the courts and by duly elected legislatures, as the Bill of Rights requires."
Face it. If you're reading this, you are a party to such property "seizures."
Telephones are for "public use" and used by every person in the country whether they have one in their home or not. There is a public need. They would not exist without eminent domain.
The internet is for "public use" and effects everyone in the country even if they don't have a computer. There is a public need. It would not exist without eminent domain.
Highways are for "public use" and every person uses them or gets goods over them. There is a public need. They would not exist without eminent domain.
Wal-mart is for "private use" and many people never go there or use any of their products. There is NO public need. It does not need eminent domain to exist.
A condominium is for "private use" and used by only a select few. There is NO public need. It does not need eminent domain to exist.
A mall is for "private use" and again is not used by everyone. There is NO public need. It does not need eminent domain to exist.
Talk about your tyranny of the majority. You've just boiled down, to me, the ultimate danger of this ruling.
I can't disagree with you more on this one, Dean. I think the decision stinks, Althouse's "reasoned" opinion stinks, and your justification stinks as well. The majority in this case basically said: "Hey, local government can do whatever they want with our property (including rip it from our hands and give it to big developers) as long as they get most of the people behind them and they spend a lot of time listening to us bitch about it." That's tyranny, Dean, and I'm amazed that you're going so far to defend it.
Talk all you want about "duly elected" and "due process," but I predict we'll be seeing a lot more "railroading" in the next few years after this decision. Just hope your house isn't one of the ones to go, Dean.
---
The fundamental matter of American property rights, considering the eminent domain decision of a 5-4 majority of the United States Supreme Court, is that the issue cannot now be re-decided by anything short of an amendment to the United States Constitution.
And the problem with expecting any such amendment, now or in the future, is the state legislatures that make the yes or no decisions on any such action, cannot go against the will of their constituent local government units. For all these local governments -- counties, municipalities, school districts, fire districts, emergency medical districts -- revenue from property taxes literally are the sustainance than enable them to operate.
The legislatures and local boards of supervisors and commissioners of these states and local governments, as elected officials, cannot long survive demands of their voters to reduce property taxes for individual properties. Therefore, they will find they have little option but to find means to continually expand their local tax bases.
And the means to expand their local tax bases come from comparatively large industrial, commercial and residential projects provide a much more significant taxes than small, old single family dwelling units.
Thus, expanded use of eminent domain is here to stay.
I suspect the expansion of eminent domain to include private as well as public uses will prove out as one of these decisions, like Roe v Wade, that loses its contentiousness over time, but, nonetheless, is neither undone by succeeding courts nor revoked by constitutional amendment. And the reason for this is that the winning side of the issues in such cases draws support from large and powerful segments of the American society.
On the other hand, there are numerous built-in limits, in that this country -- and especially its suburban and exurban countryside -- and its economy, are hardly overwhelmed by large businesses with vast amounts of development capital working day and night to throw people out of their homes in order to put up new big box stores to compete with the ones already there.
The fact is, only a relatively small number of landowners are affected in any given year, and lacking viable alternatives, they learn gracefully to accommodate. They will have added reason to accommodate gracefully now.
As for takings in general. There is a United States of America today not exclusively but largely because successive governments in the early stages of this country practiced large scale powers of eminent domain on the persons and property of the autochthonous peoples of this entire continent. Research the Indian Removal Act of 1830, Andrew Jackson, presiding. And all that was for private benefit. Go ahead and read it. Then preach to me about eminent domain.
Arnold Harris
Mount Horeb WI
Arnold Harris
Mount Horeb WI
Reading the 5th, it states thusly:
"nor shall private property be taken for public use, without just compensation"
I would say that a reasonable interpretation of this is that private property shall not be taken for public use without just compensation. Its pretty clear to me - the only way Kelo stands up to Constitutional muster is if we are saying that anything which may generate tax revenue is a "public use"; about the only thing which would be excluded here is breathing.
You've got to remember that my property includes myself, my ideas, my labor as well as my land and house...I own all of these things by right of inheritence, work or purchase; they are mine, not the government's. I must own my property or I am a mere block of wood disposable at the will of the government - the only time government may properly infringe upon my property rights are for grave public necessities...and building a mall or a factory on my property cannot be a vital necessity for the community at large.
Meantime, if you are a home owner in a place potentially threatened by hostile takeover from a private developer, don't both pumping good money after bad. Sell out while the selling is good, and relocate to someplace not likely to be threatened by commercial development.
Or sit there loudly proclaiming your rights while they eminently domain you right out of your little castle.
Remember. It's only real estate, so don't fall to much in love with it.
Maybe you don't like what I'm laying out here. But I just try to be a hard-headed realist.
Arnold Harris
Mount Horeb WI
"If it were true that dictatorship is inevitable and that fascism and communism are the two 'extremes' at the opposite ends of the course, then what is the safest place to choose? Why, the middle of the road. The safely undefined, indeterminate, mixed-economy, 'moderate' middle -- with a 'moderate' amount of government favors and special privileges to the rich and a 'moderate' amount of government handouts to the poor -- with a 'moderate' respect for rights and a 'moderate' degree of brute force -- with a 'moderate' amount of freedom and a 'moderate' amount of slavery -- with a 'moderate' degree of justice and a 'moderate' degree of injustice -- with a 'moderate' amount of security and a 'moderate' amount of terror -- and with a moderate degree of tolerance for all, except those extremists who uphold principles, consistency, objectivity, morality, and who refuse to compromise."
-Ayn Rand, "'Extremism,' or The Art of Smearing", Capitalism: The Unknown Ideal
"If an uncompromising stand is to be smeared as 'extremism,' then that smear is directed at any devotion to values, any loyalty to principles, any profound conviction, any steadfastness, any passion, any dedication to an unbreached, inviolate truth -- any man of integrity."
Ayn Rand, "Extremism,' or The Art of Smearing", Capitalism: The Unknown Ideal
"Americanism senses that the great error of Communism is not committed at the murderous end of its brutal and bloody road but at its very beginning. Inits organization and purpose Communism makes the only fundamental mistake that it is possible for any political and social system to commit. It comes up at the outset with the wrong answers to the controlling questions presented to every political system by the very nature of the human beings with whom it proposes to deal:
1 -- Does the system exist for the individual man or does the individual man exist for the system?
2 -- Is the social order more important than the people it embraces, or is it the other way around?
3 -- Does John Doe have personal individual rights which the system is bound to respect and if so, can he force the system to protect them, or is John Doe an indistinguishable part of a 'mass,' 'class,' or 'group' of the total Society?
Communism, like Fascism, Nazism, Socialism, and every form of Statism, answers:
1 -- Man exists for the system.
2 -- The social order is all important.
3 -- The individual John Doe has no rights that system is bound to respect.
Thus, in Communism, as in despotism generally, the individual as a person is completely lost in the government. His very life's blood is transfused into the government body for the exclusive use and purpose of that body. Communism frankly admits that it is a completely materialistic conception. It insists that man is merely matter; oil in the engines or cogs on the wheels. The entity is the machine and the machine is the dictatorship."
-Clarence E. Manion, "Americanism and Communism", The Key to Peace: A Formula for the Perpetuation of Real Americanism
I have often thought about two opposing definitions of "Capitalism":
"Capitalism is a social system based on the recognition of individual rights, including property rights, in which all property is privately owned."
-Ayn Rand, "What is Capitalism?", Capitalism: The Unknown Ideal
"....When I say 'Capitalism,' I commonly mean something that may be stated thus: 'That economic condition in which there is a class of capitalists roughly recognizable and relatively small, in whose possession so much of the capital is concentrated as to necessitate a very large majority of the citizens serving those capitalists for a wage.'"
-G. K. Chesterton, "The Beginnings of the Quarrel", The Outline of Sanity
That first (Ayn Rand's) definition of "capitalism" was the system envisioned by our Founding Fathers. That second definition (G. K. Chesterton's) of "capitalism" is what we have now, and is thoroughly consistent with any statist system, whether the New Deal-Great Society mixed-economy we have now, or the fascism of Mussolini's Italy, or the Bismarkian welfare state of Prussia's Second Reich, or the National Socialism of Hitler's Third Reich, or even outright Communism (as long as those monopoly "capitalists" are renamed "Commissars").
In other words, there are two kinds of "capitalists", those who earn their money honestly through their own hard work and individual initiative vs. those who get their money dishonestly through government theft, the real free enterprisers vs. the corrupt mixed-economy parasites, men like J. J. Hill or Charles M. Schwab vs. men like the "Big Four" or Alfred Krupp, men like Hank Rearden vs. men like Orren Boyle. It is the last type, the looters, who are the beneficiaries of that decision that so many wishy-washy "moderates" are falling all over themselves to defend, and it is the first type who will be destroyed by it.
"In any compromise between food and poison, it is only death that can win. In any compromise between good and evil, it is only evil that can profit."
-Ayn Rand, Atlas Shrugged
Are you and Dean recommending that we all become Buddhists and renounce all "sentimental attachments" to our possessions, or should we become Bedouins and live in tents? If the latter, should we encamp ouselves of Herr Pfizer's land, now that he has explicitly declared it to be "public property" for our "public use"?
I've decided that I will give that obscene analogy after all: A Communist could easily argue from the premises of this decision that a majority of men would have the right to vote to rape any woman -- as long as they compensate her by paying her the going price of the average prostitute.
Hard-headed realism would seem to demand that we begin exercizing our Second Amendment rights before the government decides to exercise "eminent domain" over our guns. It looks like it's time for another Tea Party.
But if you've been carefully reading the comments that I've posted on the latest US Supreme Court ruling over eminent domain, you must understand that short of invoking a constitutional convention -- which has not been done since the original constitution was adopted, the only recourse of property-owning citizens potentially affected by the court decision is await a test case which might give the court an opportunity to whittle down the power of a local government to take your home and land without just compensation.
Because barring a constitutional amendment, which is difficult to achieve under the most favorable circumstances, the US Supreme Court does in fact have the last word in determining constitutionality of any law or governmental administrative act.
And if we take up arms against the constitution, and if it were to succeed, then that would be the end of the constitution, and the United States would be degraded to a level far worse than anything that will befall all of us through an occasional land-grab created by a local government for the benefit of what they hope would be a highly-taxable private project.
Think about it.
Arnold Harris
Mount Horeb WI
I would never dream of taking up arms against the Constitution, only against the violators of the Constitution.
I did not intend to be harsh toward you. I can see that you are only being realistic, looking at the situation as it is now and trying to make the best of it. I'm disappointed in Dean, however, who seems to be justifying it, along with this "moderate" Ann Althouse. I'm super-disappointed in Justice Kennedy. Today is June 26....
SMA, I know you always defend the liberty and the US Constitution upon which the United States itself is based. Give this issue a little time to ferment. The nice thing about living in a constitutionally-based republic is that matters which seem pressing at the moment prove fleeting over a longer period of time.
I think you will see that careful thought, and perhaps some careful attention to the principles of urban planning as applied to land use conversions, will have broader and more satisfying results, than anyone resulting to force of arms, rhetorically or actually.
Arnold Harris
Mount Horeb WI
But a president of the United States, elected in turn by the majority of us, and as consented to by a majority of the Senate of the United States, appointed Associate Justice Kennedy for purposes of weighing and sifting issues such as these independently in his own mind, then issuing his judgement on the supreme federal bench.
There really is no answer to any of that, beyond smashing one's fist down on a (hopefully sturdy) desktop, consulting the wisdoms of Marcus Aurelius and G K Chesterton, and considering everything in its longer perspective.
In the long run, as you must know, it will depend upon the common sense of local and state governments not to abuse this new interpretation of eminent domain. But we Americans have proven over multiple centuries that we are characterized by our common sense as well as by the glorious faustian impulses that impel us and all western societies.
Arnold Harris
Mount Horeb WI
Before I dive in: the following is not intended to change your mind, just to try to show why so many of us consider this decision to be an outrage. (And, sorry I'm late to the party.)
Your statement above seems to boil down to "majority rules". However, the purpose of the Bill of Rights is to protect the minority against the majority. We don't want "majority rules" applied to speech, press, assembly, search and seizure, etc.
As others have pointed out, I think most people understand "public use" to be roads, bridges and such. But taking (i.e. a forced sale) from one private party and giving to another to increase the tax base (etc.) is completely different. Note that a lease from the government to the developer wouldn't change things; the office park (or whatever) is still a private use not a public use.
In any case, here's how those of us who are outraged can take action to mitigate the effects of <a rel="nofollow" href="http://www.castlecoalition.org/">Kelo</a>: join the Castle Coalition (CastleCoalition.org). The usual disclaimer: my only affiliation is the modest $ I've contributed over the years.
You are quite correct. I was engaging in a little hyperbole. And I have absolutely zero intention of becoming an assassin. I abhor political assassinations as I do any other murder. The mere idea of anybody ever assassinating a Supreme Court Justice is particularly abhorrent to me, no matter how much I may disagree with any rulings or opinions. Today is June 26, and when Pat Robertson prayed for the deaths of Justices Kennedy, Stevens, Ginsburg, O'Connor, and the others who had upheld your and my rights on that day two years ago, I loathed him more than ever. Nor did I advocate even his death. The only people I want to see dead are convicted murderers and our terrorist enemies. The Robertsons, Santorums, Borks, etc., and the Lord Pork Porks, Ward Eichmanns, etc., must be fought on the plane of ideas.
This afternoon, I read an extensive memorandum written by Gerald Ford in early 1970, while he was minority leader of the US House of Representatives, and some three years before he was appointed vice president to fill in for Sprio Agnew, who resigned in disgrace in 1973 for felonious matters that had nothing to do with Watergate. Vice president Ford, of course, became president upon president Nixon's resignation in August 1974, and filled out his term.
His memorandum discussed impeachment of associate justice William O Douglas, who, although a deserved hero of the liberal community, had what turned out to be extensive connections with certain shady elements of the gambling industry in Las Vegas and elsewhere. The Republicans had been gunning for justice Douglas for a long time, but the main thrust of their attacks against him had been spurious and judicially irrelevant charges of womanizing, attempting to issue last-minute stays of execution for the Rosenberg spies in 1953, and other matters.
Ford pointed out that no justice of the US Supreme Court, or any other court for that matter, should be removed before his stipulated tenure because of disagreement with his judicial point of view in interpreting either the laws or the US Constitution. But bad conduct such as Ford related was another matter, and in his conclusion, he recommended impeachment.
Needless to say, justice Douglas was not impeached and kept his place on the court until his death some years later. He had been the longest-serving US Supreme Court justice up to that time.
The meaning of all this is that the supremes of the US judicial system cannot be removed from office because of their judicial opinions, and even to attempt to do so would seriously damage the US constitutional system.
As for popular American mullah who may, in a moment of anger and overheated rhetoric, pray publicly for the deaths of members of the US Supreme Court, what can I possibly say, other than that any public person who exercizes such behavior ought to be given time to cool off, think about it all, and feel well deserved shame.
Arnold Harris
Mount Horeb WI
Agreed, we'll have to amend the Constitution to get this abomination overturned - but overturned it must be.
It isn't the physical property which I hold sacred, but the fact that it is mine and may not be alienated from me except under grave circumstances. As I pointed out, this is my home - how are you going to compensate me for the palm tree in my back yard, given to me by my mother shortly before her death...the last gift of a mother to her child, now growing in my back yard? Right now, as it turns out, its still small enough for me to move - and it will be moved to my new property...but what of ten years from now when its quite a lot larger and the private developer who got my property condemned only wants to pay me the going rate for a palm tree?
Other examples - how do you compensate a man for the memories he has of his children playing in the back yard? How do you compensate for the memory of a mother bringing her first child home from the hospital and placing him in the cradle in the back bedroom?
Finally, how do you say that my property is only mine as long as I'm making the best use of it? Who defines "best use"? Majority vote? Uh, no - I'm a conservative; you don't get to vote on my rights...they are mine, from God, and they are indestructible.
In the meantime, I think the response to all this from across a broad spectrum of the American public will serve as a warning to local government officials, land use planners and developers not to push their luck too far. That might prove better protection than the hope for passage of some future constitutional amendment.
Arnold Harris
Mount Horeb WI
On to the substance of the ruling, there's no question that government can condemn land "for public use" if "just compensation" is paid. Here, just compensation didn't appear to be an issue, but public use was. What many of us find so infuriating is that five of the nine Justices have all but nullified the "public use" requirement, arguing in effect that "public use" means whatever the local government wants it to mean for purposes of the Fifth Amendment. That makes no more sense than deferring to the local P.D. in their judgment of what constitutes a "reasonable" search or seizure when enforcing the Fourth.
The ironic part is that off the top of my head, I can think of three theories the majority could have used to justify its position, only one of which is borderline retarded, and all three of which are, IMNSHO, more plausible than the theory they relied on. Those theories are:
"Dean, I was a bit less impressed by Althouse's argument than you were. Particularly unimpressive was her disingenuous remark about the case being a "federalist" one because the government in question happened to be a local one - all the while conveniently ignoring that none of the ruling depended on this factoid, and that the federal government can just as easily condemn land in reliance on Kelo as any local government can."
And that's exactly what it will do. Governments do whatever they can get away with. That's why our Founding Fathers wrote the Constitution in the first place. In the words of Thomas Jefferson:
"In questions of power then, let no more be heard of confidence in man, but, rather, bind him down from mischief with the chains of the Constitution."
As for those three arguments or excuses Xrlq listed, I reject every one of them. I agree instead, and totally, with Mark Noonan who wrote:
"Finally, how do you say that my property is only mine as long as I'm making the best use of it? Who defines "best use"? Majority vote? Uh, no - I'm a conservative; you don't get to vote on my rights...they are mine, from God, and they are indestructible."
And I admire Arnold Harris. Kelo vs. City of New London may indeed have launched a right-to-property movement the same way Roe vs. Wade launched a right-to-life movement. Corrupt politicians beware: You may find yourselves out on your asses next time you try stealing a home-owner's home in order to benefit one of your cronies. A man's (woman's) home is his 9her) castle -- with all that that implies. Raise the drawbridges. Fill the moats.
"I think it's a "public use" so long as the majority of citizens in a given jurisdiction find the use worthwhile"
Do you really believe that? I find the idea that absolutely anything that you can convince 50-percent-plus-one of your local city council to do is, by definition a "public use" to be utterly horrifying.
Take away the legalese, and that's what Kelo boils down to. I don't think that's what this country is supposed to be about, and regardless of prior court precedent and abusive uses of eminent domain throughout our history, the fact that the Supreme Court has made that idea into the law of the land is disastrous.
Arnold Harris
Mount Horeb WI
"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."
Here it is:
"So the message to Charles Manson imitators is: go ahead and use mass murder for fun, but please try to take human life 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 mass murder, which can be a wrenching experience for people."
Judging from her post on this, I have concluded that Ann Althouse has just got to be a blithering idiot who has not the slightest conception of what conservatism, capitalism, property rights, or the Constitution are all about. If she isn't a socialist, she wouldn't know the difference. I agree with Leonard Peikoff more and more all the time. And Xrlq, though some of his views are abhorrent to me, looks like a pretty sharp cookie. At least he knows what he's saying most of the time. Harsh, I know. That's the way I am. I'm still mad as Hell about this abomination.