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Kelo Backlash Growing

By Jeralyn, Section Constitution
Posted on Sun Aug 21, 2005 at 12:24:33 PM EST
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The Economist reports:

A Supreme Court ruling that allows the government to seize private property has set off a fierce backlash that may yet be as potent as the anti-abortion movement...IF YOU ever doubted the importance of the Supreme Court, consider the fuss about Kelo v New London. The five-to-four ruling by the court on June 23rd, apparently giving the government the power to bulldoze homes on flimsy grounds, has set off fiery protests across the country.

Americans used to believe that their constitution protected private property. The Fifth Amendment allows the state to seize it only for “public use”, and so long as “just compensation” is paid. “Public use” has traditionally been taken to mean something like a public highway. Roads would obviously be much harder to build if a single homeowner could hold out forever or for excessive compensation. The government's powers of “eminent domain” have also been used to clean up “blighted” slums.

Kelo was about something different, however. A private developer in New London, Connecticut, wanted to raze some perfectly nice waterfront homes to build an office block and some posh apartments. The owners didn't want to sell. The city decided to force them to, calculating that the new development would create jobs and yield more taxes.

The Supreme Court took the city's side. Rejecting “any literal requirement that condemned property be put into use for the ...public”, Justice John Paul Stevens said it was enough that the seizure should serve some vaguely defined “public purpose”—such as those new taxes. This had nothing to do with slums or roads: instead, it massively expanded the government's power of eminent domain.

The article uses protests in Ardmore, PA as a backdrop to explain the growing opposition.

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    Kelo Backlash Growing | 25 comments (25 topical)
    Re: Kelo Backlash Growing (none / 0) (#1)
    by Dadler on Sat Dec 17, 2005 at 01:02:34 PM EST
    With the cash-cow influence of developers on local and state politics entrenched today, the definition of "public use" has less to do with the public and more to do with the use. That use being M-O-N-E-Y.

    Re: Kelo Backlash Growing (none / 0) (#2)
    by squeaky on Sat Dec 17, 2005 at 01:02:34 PM EST
    And now they are demanding back rent from the Kelo and the other losers in the Connecticut land grab case.

    Re: Kelo Backlash Growing (none / 0) (#3)
    by Talkleft Visitor on Sat Dec 17, 2005 at 01:02:35 PM EST
    I guess we're all thankful the next pick for SCOTUS is being made by Bush...one more conservative on that court and this decision would have gone the other way.

    Re: Kelo Backlash Growing (none / 0) (#4)
    by squeaky on Sat Dec 17, 2005 at 01:02:35 PM EST
    grad-Speak for yourself. You are not representing the 'we' here.

    Re: Kelo Backlash Growing (none / 0) (#5)
    by cpinva on Sat Dec 17, 2005 at 01:02:35 PM EST
    gee grad, what makes you think that? as i see it, this is a classic republican cause celebre': wealthy developer v not wealthy regular people. who do you think a bush appointee would support? i'll give you a hint: it wouldn't be the not wealthy regular people.

    Re: Kelo Backlash Growing (none / 0) (#6)
    by swingvote on Sat Dec 17, 2005 at 01:02:35 PM EST
    I don't think it's a matter of whether it's a "Bush appointee" or not, since a number of the liberal judges who voted to expand the eminent domain clause in this case are in fact justices appointed by "conservative" presidents. What we should all be thinking about is how the ever-increasing drive to interpret the constitution in new ways, and to substitute the language we might wish is there for that which is there, will inevitably lead to rulings like this one. Once you open the door to allow judges to decide for themselves whether a power "should be" granted or "should have been" granted, the document loses all meaning and becomes whatever 5 out of 9 justices say it is on any given day. Welcome to the world of the "living document" school of thought.

    Re: Kelo Backlash Growing (none / 0) (#7)
    by kdog on Sat Dec 17, 2005 at 01:02:35 PM EST
    Yes, this isn't a liberal or conservative thing, it's a tyranny thing. Both the Republicans and the Democrats will salivate over what they can do with your property. One big campaign contribution by a developer with his sights on your land is all it will take. People in NY are nervous, the NJ Nets new ownership have their eyes on ousting some landowners in Brooklyn for a new arena, the same for some auto scrapyard landowners in Queens for a new stadium for the Mets. No land is safe. Government by, of , and for the corporation!

    Re: Kelo Backlash Growing (none / 0) (#8)
    by pigwiggle on Sat Dec 17, 2005 at 01:02:35 PM EST
    “as i see it, this is a classic republican cause celebre'”
    I see it as a triumph for the ‘strong central government’ folks, same for Gonzales v Raich. The days of dividing liberal and conservative or democrat and republican along opposing lines of the central government’s authority are gone. Neither seems to be uncomfortable with hypocrisy when their special interests are served. If you want to see the commerce clause and eminent domain put in check we need some classically liberal supremes.

    Re: Kelo Backlash Growing (none / 0) (#9)
    by Talkleft Visitor on Sat Dec 17, 2005 at 01:02:35 PM EST
    All my life I have been a democrat, but after this case I doubt if I will bother voting again. We struggle to keep nuts off the court then our guys massively expanded the government's power. The bad guys won and they is us. Let Bush pick whoever he wants, he can't do worse than our guys.

    Re: Kelo Backlash Growing (none / 0) (#10)
    by Quaker in a Basement on Sat Dec 17, 2005 at 01:02:35 PM EST
    Why is it so hard to understand what happened in Kelo? The majority did not, as justpaul claims, vote to expand the use of eminent domain. In fact, the majority voted to duck and keep the court out of the fight. Remember, it was the state of Connecticut, not the federal government that asserted the authority to seize the homes. The court majority chose not to intervene, leaving the matter up to the state legislature. Now isn't that what a good Consititutional originalist would want, jp?

    Re: Kelo Backlash Growing (none / 0) (#11)
    by swingvote on Sat Dec 17, 2005 at 01:02:36 PM EST
    Quaker, I'll admit that my formulation was a bit simplistic, but unless someone else has been contributing under your tag line I know for a fact you are not that stupid. The majority chose to accept the logic argued by the state, which means they accepted the new interpretation of eminent domain to include "public purpose" as well as "public use", and that is now the given understanding of the constitutional clause in question. By not overturning it, they said they agree. And no, Quaker, a strict constructionist would have ruled that the word "use" is not the same as the word "purpose" and left it at that, or at least I would hope so. Do you really think it's a mere coincidence that the four most liberal justices, with a history of adopting the "living document, make it up as we go along" approach, are the primary force behind this ruling?

    Re: Kelo Backlash Growing (none / 0) (#12)
    by Talkleft Visitor on Sat Dec 17, 2005 at 01:02:36 PM EST
    "apparently giving the government the power to bulldoze homes on flimsy grounds" I'm not a lawyer, but I did read the majority decision and some of the minority dissent. The majority decision is based, specifically, on EXACTLY the opposite premise: that the case involves an extensive, carefully thought-out development plan. The other part of the maj. decision says that there are so many state exceptions to the use of eminent domain that it is impossible on the basis of this one case to try to draw a legitimate line -- AND THEREFORE IT IS UP TO THE STATE LEGISLATURES TO DRAW THE LINE. As an excuse to give up on voting, FUGGET ABOUT IT. You're just marking yourself as an idiot. Corruption is nothing new. People who are getting their telescopes turned around and looking through the wrong end are hysterics. During a coup and a rollback of rights (and rulings), it is perilously easy to let the telescope flip, but recall MLK Jr's words ("the arc of history is long, but it bends toward justice") and recommit to the fight FORWARD. It is crucial to understand that our election system has been intentionally broken, and THAT is a far bigger issue than well-argued, narrow rulings like this one that admits that the situation in the states is far from uniform enough to draw a federal policy line that will stand.

    Re: Kelo Backlash Growing (none / 0) (#13)
    by Talkleft Visitor on Sat Dec 17, 2005 at 01:02:36 PM EST
    "Do you really think it's a mere coincidence that the four most liberal justices, with a history of adopting the "living document, make it up as we go along" approach, are the primary force behind this ruling?" This is not making it up as we go along -- it is the OPPOSITE of that. It is the refusal to legislate from the bench. The case SPECIFICALLY says that it is impossible to draw the line when the state agcy has done so much work toward a redevelopment. There is too much precedent for the Court to pretend to a linear federal standard. That's an act of courage, not the cowardice of Federal Powerists like Thomas and Scalia.

    Re: Kelo Backlash Growing (none / 0) (#14)
    by Quaker in a Basement on Sat Dec 17, 2005 at 01:02:36 PM EST
    Do you really think it's a mere coincidence that the four most liberal justices, with a history of adopting the "living document, make it up as we go along" approach, are the primary force behind this ruling?
    No, it's not a coincidence. I think it's an indication that the so-called "conservative" justices apply original intent selectively. If you read the arguments and the majority opinion, you'll see that the majority found that takings under eminent domain did not require the special scrutiny of the court. Their opinion specifically stated that limiting the use of state power to seize privately-owned land was something that should be decided by the state legislature, not the court. The "conservative" justices in this case sought to intervene by way of a method that usually makes them cry foul. They tried to say that the takings clause of the Fifth amendment applies to the states. That's exactly the argument that the "living document" advocates use to apply the First and Fourth amendments to the states.

    Re: Kelo Backlash Growing (none / 0) (#15)
    by kdog on Sat Dec 17, 2005 at 01:02:36 PM EST
    Their opinion specifically stated that limiting the use of state power to seize privately-owned land was something that should be decided by the state legislature, not the court.
    I'm no legal expert by any means, but the court saying it's up to the state to limit state power sounds retarded to me. What state would limit their own power? Isn't that what the courts are for, to keep the power of the state in check and protect the individual? What am I missing?

    Re: Kelo Backlash Growing (none / 0) (#16)
    by Quaker in a Basement on Sat Dec 17, 2005 at 01:02:36 PM EST
    One more thing, jp:
    which means they accepted the new interpretation of eminent domain to include "public purpose" as well as "public use",
    That's true only if a court decision from 1954 represents a "new" interpretation. In Berman v. Parker, the court decided that it was OK for the government to condemn land for the purpose of relieving urban blight. The government wasn't planning to use the land for a road, a water plant, or a military base. It took the land simply for the purpose of bulldozing a rundown area.

    Re: Kelo Backlash Growing (none / 0) (#17)
    by Quaker in a Basement on Sat Dec 17, 2005 at 01:02:36 PM EST
    What state would limit their own power? Isn't that what the courts are for, to keep the power of the state in check and protect the individual? What am I missing?
    I'm not sure in what sense you're using "the state" here. When I used it earlier, I'm talking about the state government of Connecticut. The majority opinion in Kelo said it's up to the people of Connecticut to elect a legislature that will limit the use of eminent domain. The laws for the use of eminent domain vary by state and even by locality. Yes, it's the role of the court to protect the rights of the people and to check the power of legislatures. However, that role has to be performed within certain constraints. In Kelo, the originalists want to have it both ways. They want to claim they're observing the letter of the Constitution while at the same time overriding the will of the people of Connecticut to create a "right" that doesn't appear in the Constitution.

    Re: Kelo Backlash Growing (none / 0) (#18)
    by kdog on Sat Dec 17, 2005 at 01:02:37 PM EST
    Quaker, I was using "state" as "state of Connecticut". The legislature is elected by the people, I neglected this detail. However, it seems to me the court is saying the people have no recourse from a tyrannical state legislature between elections. I am very disappointed that did not strike down the Connecticut law that will allow this type of emminent domain on 4th amendment grounds. What of the rights of the individual to be secure in their property? Increased tax revenue does not necessarily serve the public good either.

    Re: Kelo Backlash Growing (none / 0) (#19)
    by Quaker in a Basement on Sat Dec 17, 2005 at 01:02:37 PM EST
    Yeah, kdog. I happen to agree that Kelo is a bad decision. I was actually challenging justpaul on his assertion that it was the "good" conservative judges who stood up for a strict interpretation of the Constitution against the "bad" liberal judges who voted to expand the power of eminent domain.
    it seems to me the court is saying the people have no recourse from a tyrannical state legislature between elections.
    Well, what they're saying is the recourse against the actions of the legislature would be in state court. The Supremes ducked.

    Re: Kelo Backlash Growing (none / 0) (#20)
    by squeaky on Sat Dec 17, 2005 at 01:02:37 PM EST
    kdog-people can move to another state. Unfortunately if the feds take control of states decision making, it becomes moving to another country. Do you think it is right for the federal gov to come in to CA and bust sick people for growing a plant that the state has decided is Medicine? Although I agree that CT seems to be very nasty asking for back rent from 2001, and compensating for the property at the much lower 2001 rate as opposed to current market values, I am happy that the SC ruled that it is none of their biz what CT does on this issue.

    Re: Kelo Backlash Growing (none / 0) (#21)
    by kdog on Sat Dec 17, 2005 at 01:02:37 PM EST
    Squeak..The feds already have raided legal CA pot distributors. States rights are a myth with a massive loophole like the commerce clause. I guess I was hoping they would use that power for good instead of evil for once. I disagree that it's a states issue, because I view this type of eminent domain as a violation of the 4th amendment. The Bill of Rights trumps state law, the court sided with tyranny.

    Re: Kelo Backlash Growing (none / 0) (#22)
    by Talkleft Visitor on Sat Dec 17, 2005 at 01:02:37 PM EST
    Posted by kdog: "However, it seems to me the court is saying the people have no recourse from a tyrannical state legislature between elections. I am very disappointed...." Did you read the decision? It laments the same lack of a standard as you are, but this is actually a legitimate act of a VERY tarnished SCOTUS, something argued on merits, and only attacked out of preexisting malice, or disappointment like yours. The majority expresses disappointment as well, which isn't the same as a liberal stand for the 4th A, but after all, this is the country that never upheld ONE treaty with native peoples, while pushing them off their land at every opportunity. To suggest that the development fever of the United States can be controlled by five justices is HILARIOUS. The states have to pull this cart, and the state courts have to do the work of confining the direction to the state constitution. And Thomas and Scalia know it -- they are, once again, highly duplicious in their statements of legal principle.

    Re: Kelo Backlash Growing (none / 0) (#23)
    by Talkleft Visitor on Sat Dec 17, 2005 at 01:02:37 PM EST
    'duplicious'...is that somewhere between duplicity and malicious? Or between duplex and delicious? You're starting to sound like that monument of articulation, the famous TChris (or perhaps like that other famous destroyer of words GWB) :)

    Re: Kelo Backlash Growing (none / 0) (#24)
    by squeaky on Sat Dec 17, 2005 at 01:02:37 PM EST
    Grad- do yu study prooreading at school? This was the first accurate statement you have made, typically meanspirited for a jesus freak.

    Re: Kelo Backlash Growing (none / 0) (#25)
    by Talkleft Visitor on Sat Dec 17, 2005 at 01:02:38 PM EST
    Duplicitous. Wow, are you desperate to hide behind a typing error.

    Kelo Backlash Growing | 25 comments (25 topical)