Thursday, June 23, 2005
Modified Fisking of the Kelo Case
The Supreme Court did some damage to the 5th Amendment today in the Kelo v. City of New London case. At least the 5 member majority did damage to that part of the 5th Amendment which prohibits, inter alia: "[N]or shall private property be taken for public use, without just compensation." There comes a time when a sufficient number of minor changes in quantity effect a major change in the quality of a thing. Like Stalin's statement that a single death is a tragedy, but a million deaths is merely a statistic, or like the straw that breaks the camel's back. The case involved the city condemning for taking by eminent domain non blighted parts of the city so that a private developer could make better use of the properties than their current owners. But a private development is not "public use" required by the 5th Amendment, the homeowners said.
I have taken what I believe are the essential quotes from the case (in medium blue) and interspersed them with my comments (in black) on them. I'll start with the majority opinion (by Justice Stevens) and then go with the dissents by O'Connor and Thomas (who, despite Harry Reid's apparently uninformed opinion of him, has written a well reasoned dissent, not embarrassing at all). Here we go:
We granted certiorari to determine whether a city's decision to take property
for the purpose of economic development satisfies the "public use"
requirement of the Fifth Amendment.
This is the essential question as Justice Stevens describes it.
Two polar propositions are perfectly clear. On the one hand, it has long
been accepted that the sovereign may not take the property of A
for the sole purpose of transferring it to another private party B,
even though A is paid just compensation. On the other hand,
it is equally clear that a State may transfer property from one
private party to another if future "use by the public" is the purpose
of the taking; the condemnation of land for a railroad with common-carrier
duties is a familiar example.
Although he says these extremes do not decide the case, the certainly set out the parameters of past decisions. You can do the latter but not the former.
The disposition of this case therefore turns on the question
whether the City's development plan serves a 'public
purpose'. Without exception, our cases have defined that
concept broadly, reflecting our longstanding policy of
deference to legislative judgments in this field.
See how 'public use' morphed into 'public purpose'. As Justice Stephen earlier described, some of the first "Taking Clause" cases involved the government condemning and taking private property and turning it over to the privately held railroads who would then carry any citizen as a passenger. Private use but for a public purpose--public transportation.
Promoting economic development is a
traditional and long accepted function of government.
There is, moreover, no principled way of distinguishing
economic development from the other public purposes that
we have recognized.
True, true. It is difficult to draw a meaningful line here so, as you'll see, the Court doesn't draw one. We can't get mad at Stevens for stating true history.
Just as we decline to second-guess the City's considered
judgments about the efficacy of its development plan, we
also decline to second-guess the City's determinations as
to what lands it needs to acquire in order to effectuate the
project.
So the majority merely deferred to the City (which is deciding what the 'public purpose' is and which is picking the property which it intends to take from A and give to B). The 'public purpose' is whatever the City says it is and the City doesn't need to do anything more than say it--no support required. The rankest speculation is OK .Trust the government entity--they know best. I see I've gone from fisking to bitching.
Justice Stevens, writing for the majority (the usual suspects) saying the City wins and the homeowners lose. We all lose. Of course not everyone agrees with the majority. From the dissent of Justice Thomas
The most natural reading of the Clause is that it allows
the government to take property only if the government
owns, or the public has a legal right to use, the property,
as opposed to taking it for any public purpose or necessity
whatsoever.
I guess this is what they mean by interpreting a law to ascertain the original intent of the framers--look at the words and use the definitions we always use. So the phrase 'public use' for Justice Thomas means that the public gets to use it. He finds 'public purpose' to provide no guidelines whatsoever, i.e., it means whatever the taking government entity says it is.
The disagreement among state courts, and state
legislatures. Attempts to circumvent public use limits on
their eminent domain power, cannot obscure that the
Public Use Clause is most naturally read to authorize
takings for public use only if the government or the public
actually uses the taken property.
Of course the governments want to be able to use eminent domain to maximize tax revenue; it beats upping the traffic ticket quotas. On the other hand, we homeowners don't want the sword of Damocles hanging over our head falling at random times on random neighborhoods as the spirits move the various executives. A man's home is his castle unless the tax basis for private castles has been superseded by that of a mall or even a strip mall or a strip joint, while you're at it.
Yet today the Court tells us that we are
not to 'second-guess the City's considered judgments'.
...When the issue is, instead, whether the government
may take the infinitely more intrusive step of
tearing down petitioners' homes. Something has gone
seriously awry with this Court's interpretation of the
Constitution. Though citizens are safe from the government
in their homes, the homes themselves are not.
Wow, what well turned phrases. (Harry Reid probably couldn't write that well if you put a gun to his head). Yea, while the left was bitching and moaning about the security of their check out records at the local branch library, the government was taking for itself the right to bulldoze your house on the merest hope that the fellow they sell the cleared lot to will build on it a more grandiose (and taxable) edifice. But at least they won't know what you're reading.
When we depart from the natural import of the term 'public use'
and substitute for the simple idea of a public possession
and occupation, that of public utility, public interest,
common benefit, general advantage or convenience . . . We
are afloat without any certain principle to guide us..
Once one permits takings for public purposes in addition to
public uses, no coherent principle limits what could constitute a valid
'public use' at least, none beyond JUSTICE O.CONNOR's
(entirely proper) appeal to the text of the Constitution itself.
I've omitted some cites to other cases here. Sounds like Justice Thomas is concerned that this lack of any real limit on 'public use' is opening up a whole box full of trouble. Here are some examples of what I, merest tyro regarding government, can envision and I'm not even going to talk about corruption ( like selling your scraped lot to developer friends of the mayor or city council member for a bribe when the developer has no real plan to develop but is merely speculating in property). In the places where the people have managed to limit the government's ability to raise property taxes (as in California and Colorado), the government can circumvent such limits by wiping out the, to them, unnaturally low property tax basis by wiping out modest castles and selling the lots to the developers of great big castles. The government can get rid of unpopular businesses (in some states it will be gun ranges, in others it will be strip joints) with a report of an expert saying a new business would be better. The churches in the blue counties will be particularly vulnerable, as churches pay no taxes whatsoever.
For all these reasons, I would revisit our Public Use
Clause cases and consider returning to the original meaning
of the Public Use Clause: that the government may
take property only if it actually uses or gives the public a
legal right to use the property.
This appeal to reason is almost heartbreaking; why even have a Constitution when half the times the Court is finding rights that aren't there and the other half it's ignoring the prohibitions that are right there in black and white. Maddening that this perfectly correct proposal is in the dissent. These guys are trying our patience and may one day find out that a huge Republican majority in the Senate can read that the Senate has the constitutional power to say what the Supreme Court can and cannot decide. Perhaps I'm dreaming.
Justice Thomas, dissenting (well done) What does Justice O'Connor have to say?
Where is the line between 'public' and 'private' property
use? We give considerable deference to legislatures'
determinations about what governmental activities will
advantage the public. But were the political branches the
sole arbiters of the public-private distinction, the Public
Use Clause would amount to little more than hortatory fluff.
You mean like the limitations of the Intrastate Commerce Clause?
An external, judicial check on how the public use
requirement is interpreted, however limited, is necessary
if this constraint on government power is to retain any
meaning.
She like Justice Thomas, correctly sees that the decision as the deathknell of any such restraint.
Our cases have generally identified three categories of
takings that comply with the public use requirement,
though it is in the nature of things that the boundaries
between these categories are not always firm. Two are
relatively straightforward and uncontroversial. First, the
sovereign may transfer private property to public ownership
.Such as for a road, a hospital, or a military base.
I again left out citations. But this is straightforward. We all agree that the government can bulldoze our house if a hospital is going to be built even if the government gives what it says is fair market value, but isn't. There's a modified Heisenberg principal involved here. The involvement itself with the government affects the process of evaluating fair price. Once the government starts condemning, the fair price has already dropped. If it happens to us, we're victims; if it happens to others, well that's just the price of progress.
Second, the sovereign may transfer
private property to private parties, often common carriers,
who make the property available for the public.s use.
such as with a railroad, a public utility, or a stadium.
Perhaps these cases, whose citations I've omitted, were the thin end of the wedge (or first oily decline of the slippery slope) that were opposed unsuccessfully by dissents of years ago.
But 'public ownership' and 'use-by-the public'
are sometimes too constricting and impractical
ways to define the scope of the Public Use Clause. Thus
we have allowed that, in certain circumstances and to
meet certain exigencies, takings that serve a public purpose
also satisfy the Constitution even if the property is
destined for subsequent private use. See, e.g., Berman v.
Parker, 348 U. S. 26 (1954); Hawaii Housing Authority v.
Midkiff, 467 U. S. 229 (1984).
Berman and Midkiff do seem to lead in a straight, unopposable line to this decision.
In moving away from our decisions sanctioning the
condemnation of harmful property use, the Court today
significantly expands the meaning of public use. It holds
that the sovereign may take private property currently
put to ordinary private use, and give it over for new, ordinary
private use, so long as the new use is predicted to
generate some secondary benefit for the public, such as
increased tax revenue, more jobs, maybe even aesthetic
pleasure. But nearly any lawful use of real private property
can be said to generate some incidental benefit to the
public. Thus, if predicted (or even guaranteed) positive
side-effects are enough to render transfer from one private
party to another constitutional, then the words 'for public
use' do not realistically exclude any takings, and thus do
not exert any constraint on the eminent domain power.
Moving from case to case to case with minimal changes has progressed across a line and the clear meaning of the Constitution's 'for public use' now means nothing or anything depending on who's planning the property's new use.
It was possible after Berman and Midkiff to imagine
unconstitutional transfers from A to B. Those decisions
endorsed government intervention when private property
use had veered to such an extreme that the public was
suffering as a consequence. Today nearly all real property
is susceptible to condemnation on the Court's theory. In
the prescient words of a dissenter from the infamous
decision in Poletown, '[n]ow that we have authorized local
legislative bodies to decide that a different commercial or
industrial use of property will produce greater public
benefits than its present use, no homeowner's, merchant's
or manufacturer's property, however productive or valuable
to its owner, is immune from condemnation for the
benefit of other private interests that will put it to a
'higher' use..
Remember the old dissents which, Cassandra-like, talked of bad things to come. Justice O'Connor remembers them.
Any property may now be taken for the benefit of another
private party, but the fallout from this decision will
not be random. The beneficiaries are likely to be those
citizens with disproportionate influence and power in the
political process, including large corporations and development
firms. As for the victims, the government now has
license to transfer property from those with fewer resources
to those with more. The Founders cannot have
intended this perverse result.
But, even though it is easy to see that this step along the arc-line drawn by the past cases is a mis-step, here we are, having demolished the minimal protection 'for public use' once provided. And it will certainly harm the people Bill O'Reilly is looking out for.
Justice O'Connor (well done as well)
My heart's on the floor after reading this decision. If someone can see some good in it, please let me know.
I have taken what I believe are the essential quotes from the case (in medium blue) and interspersed them with my comments (in black) on them. I'll start with the majority opinion (by Justice Stevens) and then go with the dissents by O'Connor and Thomas (who, despite Harry Reid's apparently uninformed opinion of him, has written a well reasoned dissent, not embarrassing at all). Here we go:
We granted certiorari to determine whether a city's decision to take property
for the purpose of economic development satisfies the "public use"
requirement of the Fifth Amendment.
This is the essential question as Justice Stevens describes it.
Two polar propositions are perfectly clear. On the one hand, it has long
been accepted that the sovereign may not take the property of A
for the sole purpose of transferring it to another private party B,
even though A is paid just compensation. On the other hand,
it is equally clear that a State may transfer property from one
private party to another if future "use by the public" is the purpose
of the taking; the condemnation of land for a railroad with common-carrier
duties is a familiar example.
Although he says these extremes do not decide the case, the certainly set out the parameters of past decisions. You can do the latter but not the former.
The disposition of this case therefore turns on the question
whether the City's development plan serves a 'public
purpose'. Without exception, our cases have defined that
concept broadly, reflecting our longstanding policy of
deference to legislative judgments in this field.
See how 'public use' morphed into 'public purpose'. As Justice Stephen earlier described, some of the first "Taking Clause" cases involved the government condemning and taking private property and turning it over to the privately held railroads who would then carry any citizen as a passenger. Private use but for a public purpose--public transportation.
Promoting economic development is a
traditional and long accepted function of government.
There is, moreover, no principled way of distinguishing
economic development from the other public purposes that
we have recognized.
True, true. It is difficult to draw a meaningful line here so, as you'll see, the Court doesn't draw one. We can't get mad at Stevens for stating true history.
Just as we decline to second-guess the City's considered
judgments about the efficacy of its development plan, we
also decline to second-guess the City's determinations as
to what lands it needs to acquire in order to effectuate the
project.
So the majority merely deferred to the City (which is deciding what the 'public purpose' is and which is picking the property which it intends to take from A and give to B). The 'public purpose' is whatever the City says it is and the City doesn't need to do anything more than say it--no support required. The rankest speculation is OK .Trust the government entity--they know best. I see I've gone from fisking to bitching.
Justice Stevens, writing for the majority (the usual suspects) saying the City wins and the homeowners lose. We all lose. Of course not everyone agrees with the majority. From the dissent of Justice Thomas
The most natural reading of the Clause is that it allows
the government to take property only if the government
owns, or the public has a legal right to use, the property,
as opposed to taking it for any public purpose or necessity
whatsoever.
I guess this is what they mean by interpreting a law to ascertain the original intent of the framers--look at the words and use the definitions we always use. So the phrase 'public use' for Justice Thomas means that the public gets to use it. He finds 'public purpose' to provide no guidelines whatsoever, i.e., it means whatever the taking government entity says it is.
The disagreement among state courts, and state
legislatures. Attempts to circumvent public use limits on
their eminent domain power, cannot obscure that the
Public Use Clause is most naturally read to authorize
takings for public use only if the government or the public
actually uses the taken property.
Of course the governments want to be able to use eminent domain to maximize tax revenue; it beats upping the traffic ticket quotas. On the other hand, we homeowners don't want the sword of Damocles hanging over our head falling at random times on random neighborhoods as the spirits move the various executives. A man's home is his castle unless the tax basis for private castles has been superseded by that of a mall or even a strip mall or a strip joint, while you're at it.
Yet today the Court tells us that we are
not to 'second-guess the City's considered judgments'.
...When the issue is, instead, whether the government
may take the infinitely more intrusive step of
tearing down petitioners' homes. Something has gone
seriously awry with this Court's interpretation of the
Constitution. Though citizens are safe from the government
in their homes, the homes themselves are not.
Wow, what well turned phrases. (Harry Reid probably couldn't write that well if you put a gun to his head). Yea, while the left was bitching and moaning about the security of their check out records at the local branch library, the government was taking for itself the right to bulldoze your house on the merest hope that the fellow they sell the cleared lot to will build on it a more grandiose (and taxable) edifice. But at least they won't know what you're reading.
When we depart from the natural import of the term 'public use'
and substitute for the simple idea of a public possession
and occupation, that of public utility, public interest,
common benefit, general advantage or convenience . . . We
are afloat without any certain principle to guide us..
Once one permits takings for public purposes in addition to
public uses, no coherent principle limits what could constitute a valid
'public use' at least, none beyond JUSTICE O.CONNOR's
(entirely proper) appeal to the text of the Constitution itself.
I've omitted some cites to other cases here. Sounds like Justice Thomas is concerned that this lack of any real limit on 'public use' is opening up a whole box full of trouble. Here are some examples of what I, merest tyro regarding government, can envision and I'm not even going to talk about corruption ( like selling your scraped lot to developer friends of the mayor or city council member for a bribe when the developer has no real plan to develop but is merely speculating in property). In the places where the people have managed to limit the government's ability to raise property taxes (as in California and Colorado), the government can circumvent such limits by wiping out the, to them, unnaturally low property tax basis by wiping out modest castles and selling the lots to the developers of great big castles. The government can get rid of unpopular businesses (in some states it will be gun ranges, in others it will be strip joints) with a report of an expert saying a new business would be better. The churches in the blue counties will be particularly vulnerable, as churches pay no taxes whatsoever.
For all these reasons, I would revisit our Public Use
Clause cases and consider returning to the original meaning
of the Public Use Clause: that the government may
take property only if it actually uses or gives the public a
legal right to use the property.
This appeal to reason is almost heartbreaking; why even have a Constitution when half the times the Court is finding rights that aren't there and the other half it's ignoring the prohibitions that are right there in black and white. Maddening that this perfectly correct proposal is in the dissent. These guys are trying our patience and may one day find out that a huge Republican majority in the Senate can read that the Senate has the constitutional power to say what the Supreme Court can and cannot decide. Perhaps I'm dreaming.
Justice Thomas, dissenting (well done) What does Justice O'Connor have to say?
Where is the line between 'public' and 'private' property
use? We give considerable deference to legislatures'
determinations about what governmental activities will
advantage the public. But were the political branches the
sole arbiters of the public-private distinction, the Public
Use Clause would amount to little more than hortatory fluff.
You mean like the limitations of the Intrastate Commerce Clause?
An external, judicial check on how the public use
requirement is interpreted, however limited, is necessary
if this constraint on government power is to retain any
meaning.
She like Justice Thomas, correctly sees that the decision as the deathknell of any such restraint.
Our cases have generally identified three categories of
takings that comply with the public use requirement,
though it is in the nature of things that the boundaries
between these categories are not always firm. Two are
relatively straightforward and uncontroversial. First, the
sovereign may transfer private property to public ownership
.Such as for a road, a hospital, or a military base.
I again left out citations. But this is straightforward. We all agree that the government can bulldoze our house if a hospital is going to be built even if the government gives what it says is fair market value, but isn't. There's a modified Heisenberg principal involved here. The involvement itself with the government affects the process of evaluating fair price. Once the government starts condemning, the fair price has already dropped. If it happens to us, we're victims; if it happens to others, well that's just the price of progress.
Second, the sovereign may transfer
private property to private parties, often common carriers,
who make the property available for the public.s use.
such as with a railroad, a public utility, or a stadium.
Perhaps these cases, whose citations I've omitted, were the thin end of the wedge (or first oily decline of the slippery slope) that were opposed unsuccessfully by dissents of years ago.
But 'public ownership' and 'use-by-the public'
are sometimes too constricting and impractical
ways to define the scope of the Public Use Clause. Thus
we have allowed that, in certain circumstances and to
meet certain exigencies, takings that serve a public purpose
also satisfy the Constitution even if the property is
destined for subsequent private use. See, e.g., Berman v.
Parker, 348 U. S. 26 (1954); Hawaii Housing Authority v.
Midkiff, 467 U. S. 229 (1984).
Berman and Midkiff do seem to lead in a straight, unopposable line to this decision.
In moving away from our decisions sanctioning the
condemnation of harmful property use, the Court today
significantly expands the meaning of public use. It holds
that the sovereign may take private property currently
put to ordinary private use, and give it over for new, ordinary
private use, so long as the new use is predicted to
generate some secondary benefit for the public, such as
increased tax revenue, more jobs, maybe even aesthetic
pleasure. But nearly any lawful use of real private property
can be said to generate some incidental benefit to the
public. Thus, if predicted (or even guaranteed) positive
side-effects are enough to render transfer from one private
party to another constitutional, then the words 'for public
use' do not realistically exclude any takings, and thus do
not exert any constraint on the eminent domain power.
Moving from case to case to case with minimal changes has progressed across a line and the clear meaning of the Constitution's 'for public use' now means nothing or anything depending on who's planning the property's new use.
It was possible after Berman and Midkiff to imagine
unconstitutional transfers from A to B. Those decisions
endorsed government intervention when private property
use had veered to such an extreme that the public was
suffering as a consequence. Today nearly all real property
is susceptible to condemnation on the Court's theory. In
the prescient words of a dissenter from the infamous
decision in Poletown, '[n]ow that we have authorized local
legislative bodies to decide that a different commercial or
industrial use of property will produce greater public
benefits than its present use, no homeowner's, merchant's
or manufacturer's property, however productive or valuable
to its owner, is immune from condemnation for the
benefit of other private interests that will put it to a
'higher' use..
Remember the old dissents which, Cassandra-like, talked of bad things to come. Justice O'Connor remembers them.
Any property may now be taken for the benefit of another
private party, but the fallout from this decision will
not be random. The beneficiaries are likely to be those
citizens with disproportionate influence and power in the
political process, including large corporations and development
firms. As for the victims, the government now has
license to transfer property from those with fewer resources
to those with more. The Founders cannot have
intended this perverse result.
But, even though it is easy to see that this step along the arc-line drawn by the past cases is a mis-step, here we are, having demolished the minimal protection 'for public use' once provided. And it will certainly harm the people Bill O'Reilly is looking out for.
Justice O'Connor (well done as well)
My heart's on the floor after reading this decision. If someone can see some good in it, please let me know.
# posted by Roger Fraley @ 7:14 PM 
