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Justice Stevens Adds Fuel to the Fire Over the New London Eminent Domain Case
FindLaw ^ | Monday, Aug. 29, 2005 | Professor MICHAEL C. DORF

Posted on 08/29/2005 2:18:31 AM PDT by alessandrofiaschi

Speaking to a bar association meeting in Las Vegas last week, United States Supreme Court Justice John Paul Stevens confessed that he thought one of his own recent opinions, though correct as a matter of law, was wrong as a matter of policy. Stevens authored the majority opinion in Kelo v. City of New London, which upheld the forced sale of private homes to a commercial real estate developer. Yet he commented at the meeting that his constitutional judgment in that case was "entirely divorced from my judgment concerning the wisdom of the program."

It seems that no one has a kind word to say for the Kelo decision. Already, Congress and the states have sought to limit the power of eminent domain. Meanwhile, outraged, if not necessarily entirely serious, citizens in New Hampshire have been urging elected officials to force the sale of properties owned by two of the Justices in the Kelo majority, David Souter and Stephen Breyer.


Perhaps Justice Stevens's speech was a clever ploy to appease Kelo critics who might target his own property. Don't blame me, he appears to be saying: I was just following the law.

But of course, that explanation won't quite wash. Kelo was decided by a 5-4 margin, so there was obviously enough wiggle room for a Justice who thought the New London program unwise also to find it unconstitutional.

So why did Justice Stevens rule for the city in Kelo? I believe it's because, in his judgment, the interpretation of the Constitution permitting redevelopment programs such as New London's is sensible, even though the particular New London program of property acquisition was unwise.

What Justice Stevens Said About Medical Marijuana

In addition to Kelo, Justice Stevens gave another example of a decision he had authored in the Court's last Term whose result he lamented as a matter of policy. In Gonzales v. Raich, the Court upheld the federal law banning the cultivation of marijuana, even as applied to marijuana grown and consumed in California for medicinal purposes pursuant to a state law purporting to make such activity legal. Justice Stevens made clear in his oral remarks--as he had in the Raich opinion itself--that the Court's decision to uphold the federal law did not mean that he (or the other Justices) thought it was a good idea for the government to ban medical marijuana.

But the case did not present the question whether banning medical marijuana is a good idea: the issue was whether Congress has the power to enact such a ban. Seeing no principled way to give a negative answer to that question without thereby undermining Congressional ability to regulate the national economy in the interest of the country as a whole, Justice Stevens reluctantly concluded that the federal marijuana prohibition validly trumped the state authorization for medical marijuana.

The Difference Between Undesirable Results and Undesirable Rules

Before returning to the Justice's comments regarding the Kelo case, it is worth drawing an important distinction. Judges and Justices sometimes must apply constitutional or other legal rules that they think are generally unwise.

For example, a reasonable person could think that jury trials in civil cases are a waste of resources: they increase the length of trials, inconvenience people called to serve as jurors, and often give to laypeople the task of resolving highly technical questions for which they have no training or expertise. Hence, the civil jury trial has been abolished in England, where it originated, and curtailed in many states in this country.

At the federal level, however, the Seventh Amendment expressly guarantees a right to a jury trial in federal court in most civil cases for monetary damages. Accordingly, a judge or Justice sworn to uphold the Constitution must find a right to jury trial in such cases, even though, were it up to the particular judge or Justice, he or she would personally favor amending the Constitution to eliminate or modify the Seventh Amendment.

But notice that Justice Stevens did not say of the cases interpreting the Commerce Clause what my hypothetical judge or Justice says of the Seventh Amendment. Justice Stevens did not say: "It's too bad Congress has broad power to regulate the interstate economy. I wish it didn't, but I'm stuck with the text we have."

What Justice Stevens in fact said was nearly the opposite. He approves of broad Congressional power, so much so that he thought the Court's "duty to uphold the application of the federal statute" in Raich "was pellucidly clear." It was unfortunate, he thought, that Congress had chosen to exercise its broad power to reach even medical marijuana, but it was highly desirable that the power be Congress's to decide whether to exercise.

What Justice Stevens Said About Eminent Domain

Justice Stevens said nearly the exact same thing about the power of eminent domain. He thought it was unwise for New London and other municipalities to force sales of private homes for economic development of distressed neighborhoods. If Justice Stevens were a member of the relevant local government, his preference would be for market mechanisms: If there really are economic opportunities locked up in the property of private homeowners, let the developers pay the homeowners for their property in private sales. Or, as Justice Stevens put the point in his speech: "the free play of market forces is more likely to produce acceptable results in the long run than the best-intentioned plans of public officials."

But that policy preference is not itself a constitutional principle. The relevant constitutional language (in the Fifth Amendment) states that "private property" shall not "be taken for public use, without just compensation." By implication, private property cannot be taken at all (even with the payment of just compensation), if it is for a non-public use.

And what could be a less public use, the petitioners in Kelo asked, than giving the land acquired from a homeowner in a forced sale to a private commercial developer? This, in their view, is simply a forced transfer from one private entity to another--a private use, not a public one.

Why the Kelo Rule Serves Principles of Free Enterprise

Although economic libertarians have been among the most vocal critics of the Kelo decision, as we shall see, the most persuasive answer to the foregoing question actually relies on principles that are, or ought to be, dear to those very economic libertarians.

Long before the Kelo decision itself, the Supreme Court had said that "public use" in the Fifth Amendment does not require that the government actually retain title to the property it takes pursuant to the eminent domain power; instead, the government can use its economic domain power to transfer title to another entity, even a private one. And for good reason.

It is nearly an article of faith with economic libertarians that the free market delivers goods and services more efficiently than the government. This isn't universally true, of course. For example, Medicare, the government-run health insurance program for older Americans, is much more efficient than private-sector health insurance. But certainly there are domains in which the profit motive leads private enterprises to run more smoothly than government programs, and more importantly, elected officials should be permitted to choose to rely on private providers of goods and services when they deem it wise to do so.

But now look what happens under the approach favored by many of the Kelo critics. Suppose that a city wants to build a sports stadium on a plot of land that includes some parcels held by owners who do not want to sell at the prevailing market price. Everybody concedes that if the stadium will be owned by the city, then its construction constitutes a public use that will support the power of eminent domain. But, under the rule of the Kelo critics, if the city wants the stadium to be built and owned privately, then the use is no longer "public." Does that make any sense?

If you think it does make sense, suppose the city itself builds the stadium. Is it forbidden from ever selling the stadium to a private party? If not, how long must the city wait before making such a sale before facing litigation contending that its temporary ownership of the property was merely a pretext for a Takings-Clause-violating private-party-to-private-party transfer?

What about other public works? Eminent domain has frequently been used to construct transportation facilities such as railroads. Must these be forever state-run for the initial forced sale to be valid? Given the vocal criticism that economic libertarians (and others) have leveled against Amtrak, do they really want to advocate an interpretation of the Fifth Amendment that would lock in government ownership of railroads and other public projects facilitated by the power of eminent domain?

Or take the use in Kelo itself. A city intent on redeveloping a neighborhood can still obtain title to the property of homeowners under the approach of the Kelo critics, so long as the city itself, through a government bureaucracy, undertakes to construct, own, and run the buildings and businesses in the new development.

That leads to an interesting contrast: The actual Kelo rule sensibly leaves to the discretion of local elected officials the decision whether to pursue public aims that require the use of the eminent domain power through private enterprise or through state agencies. But the Kelo critics favor a rule that would permit such projects only under the auspices of the government. That is a peculiar position to champion in the name of the free market, to say the least.

Corruption and Spite: Fear of the Government's Motivation for Private-to-Private Transfers

The Kelo critics have one more arrow in their quiver, however. They worry that permitting the government to force sales, and then transfer property to private hands, will tempt local officials to make sweetheart deals with wealthy corporations and persons, while overriding the property rights of people who just want to remain in their homes.

There are at least four answers to this worry. First, the requirement of just compensation ensures judicial scrutiny of the forced sale. Indeed, the opportunities for corruption arising out of the eminent domain power are fewer, not greater, than the opportunities provided by the exercise of local contracting and taxing authority. Unlike the use of the eminent domain power, the use of the powers to enter into contracts and impose taxes do not trigger the protections of any specially-tailored constitutional provision.

Second, although Kelo was the first Supreme Court case in which a private home was taken in a forced sale to be conveyed to a private developer, the principle that public use means public purpose--regardless of whether the ultimate transferee is public or private--has been well established for decades. Yet there is little evidence of widespread abuse of the power.

Third, it may be true that publicity surrounding the Kelo decision itself has awakened some local officials to the extent of their eminent domain powers--as suggested in a column for this site by Douglas Kmiec. Yet, at the same time, that publicity has sparked an even greater response in the other direction; local, state and national politicians eager to keep their jobs will not lightly use their eminent domain power, now that they see the intense public hostility towards forced sales of homes to private developers.

Fourth and finally, the Fifth Amendment's Takings Clause is not the only constitutional protection for homeowners. If a state or municipality were to exercise its eminent domain power to force the sale of property simply to spite the owner, it would run afoul of the principle that singling out a property owner on such grounds denies equal protection of the laws. That principle is stated clearly in the Court's terse unsigned opinion in the 2000 case of Village of Willowbrook v. Olech, which the Kelo opinion favorably cited in a footnote.

Accordingly, Justices Souter, Breyer, Stevens, and the other members of the Kelo majority need not fear retaliatory forced sales of their property. Nor, thankfully, do I--so if you are one of the millions of Americans who are outraged by the Kelo decision, don't waste your time in a futile effort to persuade the government to buy my home; just send me an incensed email explaining why you think I'm a fool. It's your First Amendment right, after all.


Michael C. Dorf is the Michael I. Sovern Professor of Law at Columbia University in New York City. His 2004 book, Constitutional Law Stories, is published by Foundation Press, and tells the stories behind fifteen leading constitutional cases. His next book, No Litmus Test: Law and Politics in the Twenty-First Century, will be published by Rowman & Littlefield in early 2006.


TOPICS: Business/Economy; Constitution/Conservatism; Crime/Corruption; Culture/Society; Editorial; Government; News/Current Events; Philosophy; Politics/Elections; US: District of Columbia; US: New Hampshire; US: New York
KEYWORDS: amendment; bar; breyer; bush; business; congress; conservatism; constitution; democrats; dorf; economics; economy; eminentdomain; freeenterprise; judge; justice; kelo; kelovnewlondon; law; newlondon; property; rats; realestate; republicans; souter; states; stevens; stupidassliberal; supremecourt; traitorsinblack; usa
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A good article!
1 posted on 08/29/2005 2:18:33 AM PDT by alessandrofiaschi
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To: alessandrofiaschi

... even if he seems a Rat...


2 posted on 08/29/2005 2:22:16 AM PDT by alessandrofiaschi (Is Roberts really a conservative?)
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To: alessandrofiaschi
...Medicare, the government-run health insurance program for older Americans, is much more efficient than private-sector health insurance

He's kidding...right?
3 posted on 08/29/2005 2:35:00 AM PDT by wolfpat (The world is upside down when Snoop Dogg is selling cars.)
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To: wolfpat

translation: Of course the framers believed that local governments could steal your land.


4 posted on 08/29/2005 2:38:08 AM PDT by stocksthatgoup (Polls = Proof that when the MSM want your opinion they will give it to you.)
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To: alessandrofiaschi
do they really want to advocate an interpretation of the Fifth Amendment that would lock in government ownership of railroads and other public projects facilitated by the power of eminent domain?

Yeah, but that's NOT what's happening. Construction companies had land theft plans all set in place, just waiting on the Kelo decision. In these cases, it was a straight swap from a landowner to the govt to another landowner.

Kelo TOTALLY trashed private property rights in this country. And that's one of the rights thats the cornerstone of the US system. They've REALLY screwed us all with this.

If a local govt decides that my 6 acres will bring them in more cash for a hotel than I pay in taxes, they can just come in and chuck me out, grubby cash in hand, with nary a word about my life being destroyed as it is.

And it's not just homeowners, its small businesses as well. These lame-brained Justices have just increased the powers of the State at the expense of private individuals a thousand-fold!

KELO SUCKS! And I REALLY, REALLY, REALLY hope that these justices lose their houses so they can be forced to live under the same rules that the rest of us have to live under, that THEY create!

Morons.

5 posted on 08/29/2005 2:47:33 AM PDT by America's Resolve (I've just become a 'single issue voter' for 06 and 08. My issue is illegal immigration!)
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To: alessandrofiaschi
Yet he commented at the meeting that his constitutional judgment in that case was "entirely divorced from my judgment concerning the wisdom of the program."

This witless pagan has neither judgement, nor wisdom. New stories say "he is apparently without any religious affiliation."

It shows.

6 posted on 08/29/2005 2:49:21 AM PDT by SkyPilot
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To: wolfpat
He's kidding...right?

yeah, that's what I thought. I can't think of a program more rife with corruption and mismanagement than Medicare. A program that was supposed to never cost more than 6 billion dollars and now costs about 150 billion is more efficient huh? These justices need some serious psychiatric treatment for their delusions.

7 posted on 08/29/2005 2:49:30 AM PDT by America's Resolve (I've just become a 'single issue voter' for 06 and 08. My issue is illegal immigration!)
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To: alessandrofiaschi


Stevens is a baboso, and I don't think he is capeable of tying his own shoes.
He shouldn't be a grammer school teacher much less a supreme court jurist.


8 posted on 08/29/2005 2:49:56 AM PDT by Joe Boucher (an enemy of islam)
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To: stocksthatgoup

Thanks for the clarification. I guess the Kelo decision also repealed the English Language.


9 posted on 08/29/2005 2:50:27 AM PDT by wolfpat (The world is upside down when Snoop Dogg is selling cars.)
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To: alessandrofiaschi
But now look what happens under the approach favored by many of the Kelo critics. Suppose that a city wants to build a sports stadium on a plot of land that includes some parcels held by owners who do not want to sell at the prevailing market price. Everybody concedes that if the stadium will be owned by the city, then its construction constitutes a public use that will support the power of eminent domain. But, under the rule of the Kelo critics, if the city wants the stadium to be built and owned privately, then the use is no longer "public." Does that make any sense?

This goes to the heart of "What is a legitimate undertaking for a city government"? At the time of the Constitution, the only "takings" contemplated were for roads and actual government buldings. If we restrict legitimate takings to just those two areas, then the authors arguments go away

10 posted on 08/29/2005 2:54:10 AM PDT by SauronOfMordor
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To: wolfpat

Medicare disperses taxpayer's money to doctors and hospitals much more efficiently than insurance companies disperse policy holder's money to doctors and hospitals.


11 posted on 08/29/2005 3:32:24 AM PDT by yoswif
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To: alessandrofiaschi
"I was just following the law." ----"Just following the law" my arse.
12 posted on 08/29/2005 3:48:32 AM PDT by Past Your Eyes (Some people are too stupid to be ashamed.)
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To: alessandrofiaschi
"the principle that public use means public purpose--regardless of whether the ultimate transferee is public or private--has been well established for decades."

I'm not sure that that is true at all. If there was such an understanding then Kelo would have been unnecessary. The use of the term "purpose" greatly expands the power of eminent domain or at the minimum awakens local governments to the immense possibilities of power they were reluctant to possess.
As for it being "decades" since it was established,it could be argued that the initial decisions were wrong and flew in the face of the 5th.
Yes it allowed for "urban renewal" to go forward but, legally, was it the right way to do it or was it an interpretation much like this one: manufactured in disregard of the English language?
13 posted on 08/29/2005 4:11:54 AM PDT by Adder (Can we bring back stoning again? Please?)
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To: yoswif
"Medicare disperses taxpayer's money to doctors and hospitals much more efficiently than insurance companies disperse policy holder's money to doctors and hospitals."


Really?? Guess you have NOT heard about all the fraud built into "Medicare". Government is NOT all it is cracked up to be, it's no better than the person/persons dispersing the taxpayer's dollar.
14 posted on 08/29/2005 4:16:59 AM PDT by Just mythoughts
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To: sauropod; Carry_Okie; hellinahandcart

mark


15 posted on 08/29/2005 4:21:01 AM PDT by sauropod (Polite political action is about as useful as a miniskirt in a convent -- Claire Wolfe)
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To: alessandrofiaschi

I've said from Day One that Kelo is not going to stand as caselaw. Even ignoring the hue and cry that's been (appropriately) sounded by it, the Supreme Court simply cannot make its mind up on eminent domain takings.


16 posted on 08/29/2005 4:22:58 AM PDT by pleasedontzotme
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To: alessandrofiaschi

Translation: "I did not know there would be such a public backlash." The Supremicists think this is a popularity contest.


17 posted on 08/29/2005 4:34:00 AM PDT by Jeff Blogworthy
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To: Jeff Blogworthy
Stevens has a career of making "judgments divorced from the Constitution."

The whole concept of life appointments should be carefully reviewed. As powerful as many public jobs have become it is very unwise to let someone go on and on after it is clear he has gone askew. Stevens is a perfect example.
18 posted on 08/29/2005 4:49:34 AM PDT by R.W.Ratikal
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To: alessandrofiaschi

I don't see how he can say that it was correct as a matter of law. If he were really opposed to the policy, he would have had no difficulty ruling against the government just based upon a plain reading of the verbage in the Constitution.


19 posted on 08/29/2005 5:15:47 AM PDT by Brilliant
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To: alessandrofiaschi
his constitutional judgment in that case was "entirely divorced from my judgment concerning the wisdom of the program."

it's from remarks like this that come labels like "educated fool."

20 posted on 08/29/2005 5:21:19 AM PDT by the invisib1e hand (tagline)
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To: alessandrofiaschi
The rich elite are running out of land on barrier islands and slopeside where they can build their get-away mansions so they embrace such a ruling so when necessary they can steal the poor man's property, doing exactly what they intend to do in the everyday economic process of class exploitation, this time by the iron hammer of the courts.

The working class are resented that we in fact actually believe we own our property, when in fact, the elite know that we only rent it from the government to whom we pay taxes.
21 posted on 08/29/2005 5:28:57 AM PDT by Final Authority
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To: Joe Boucher

My wife's first language is Spanish...I know what "baboso" means! :-)


22 posted on 08/29/2005 5:30:36 AM PDT by Redleg Duke (BOHICA!)
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To: alessandrofiaschi

What a nitwit, where in the Constitution does it give the right to take property from one private individual and give to another?


23 posted on 08/29/2005 5:33:35 AM PDT by Always Right
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To: alessandrofiaschi
"Don't blame me, he appears to be saying: I was just following the law."

Yes, and don't blame the developers who seize your property, Stvens. They're just following the law too.

(BTW, isn't that what the Nazi defendants said at the Nuremberg Trials? I'm sure it's just a coincidence.)

24 posted on 08/29/2005 5:34:17 AM PDT by Savage Beast (Love is the ultimate aphrodisiac!)
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To: America's Resolve

The efficiency he is talking about is how much money is used to administer the program as compared to how much is spent on claims. My understanding is that Medicare is indeed more efficient than private insurers, using this criterion.


25 posted on 08/29/2005 5:52:08 AM PDT by Restorer (Liberalism: the auto-immune disease of democracies.)
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To: the invisib1e hand
"his constitutional judgment in that case was "entirely divorced from my judgment concerning the wisdom of the program.""

it's from remarks like this that come labels like "educated fool.

Isn't this what conservatives claim we want judges to do? Put the law above their own preferences?

Not that I believe he interpreted the law correctly. But it is difficult to argue that he should have ruled on his preference rather than what he believed the law said.

26 posted on 08/29/2005 5:54:45 AM PDT by Restorer (Liberalism: the auto-immune disease of democracies.)
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To: alessandrofiaschi

Stevens, in his opinion, clearly wrote that he allowed the seizure for "the public interest." The public interest is nothing more than the American version of the Marxist "common good."

Now Stevens is trying to do a fancy tap dance in the storm he generated.

Years ago Stevens said he was waiting for a private property case where he could exercise his rethinking on the idea of "private property." Well, now we know what his rethinking is - pure, unadulterated Marxism.

And I can't begin to comment on the glaring idiocy of this writer.

Of course private property seized by government should be returned to the private sector after the government no longer uses it.

Abandoned railway beds are currently being returned to private owners. And if government is again seizing them for stupid bikepaths or ATV trails, the government is liable to once again pay compensaton to affected property owners. This necessary compensation was affirmed by the federal claim court several years ago.

This writer is an all-encompassing idiot.


27 posted on 08/29/2005 6:22:02 AM PDT by sergeantdave (Member of Arbor Day Foundation, travelling the country and destroying open space)
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To: Joe Boucher
Notice all the calls for Rehnquist to retire and no mention of this senile old fool.

On his worst day, Rehnquist has more intelligence than Stevens on his best day.

Always was and always will be.

28 posted on 08/29/2005 6:23:11 AM PDT by OldFriend (MERCY TO THE GUILTY IS CRUELTY TO THE INNOCENT ~ Adam Smith)
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To: OldFriend

I'd love to play chess for money with either of these two fools.


29 posted on 08/29/2005 6:33:28 AM PDT by Joe Boucher (an enemy of islam)
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To: alessandrofiaschi
I wonder if the victims of Kelo should sue the city for a refund of all the property taxes they have paid over the years.
According to the city, the residents were just renting the property for all these years.
30 posted on 08/29/2005 7:11:56 AM PDT by dearolddad
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To: Restorer
But it is difficult to argue that he should have ruled on his preference rather than what he believed the law said.

I stand corrected. Or at least, provoked to thought.

31 posted on 08/29/2005 7:14:36 AM PDT by the invisib1e hand (tagline)
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To: Smile-n-Win

possible ping.. 'a confession'


32 posted on 08/29/2005 7:19:50 AM PDT by traviskicks (http://www.neoperspectives.com/janicerogersbrown.htm)
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To: OldFriend

"Notice all the calls for Rehnquist to retire and no mention of this senile old fool. On his worst day, Rehnquist has more intelligence than Stevens on his best day."

WELL SAID!!


33 posted on 08/29/2005 7:32:03 AM PDT by Polyxene (For where God built a church, there the Devil would also build a chapel - Martin Luther)
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To: America's Resolve
PING

KELO IS JUST WRONG.

34 posted on 08/29/2005 7:40:33 AM PDT by pointsal
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To: alessandrofiaschi
HERE'S MY RELY:

Corruption and Spite: Fear of the Government's Motivation for Private-to-Private Transfers

The Kelo critics have one more arrow in their quiver, however. They worry that permitting the government to force sales, and then transfer property to private hands, will tempt local officials to make sweetheart deals with wealthy corporations and persons, while overriding the property rights of people who just want to remain in their homes.

There are at least four answers to this worry. First, the requirement of just compensation ensures judicial scrutiny of the forced sale. Indeed, the opportunities for corruption arising out of the eminent domain power are fewer, not greater, than the opportunities provided by the exercise of local contracting and taxing authority. Unlike the use of the eminent domain power, the use of the powers to enter into contracts and impose taxes do not trigger the protections of any specially-tailored constitutional provision.


False. In practice, most eminent domain cases do not involve scrutiny of the taking or the underlying project but only of the price to be paid; and most projects and takings are not even contested in court. When takings or compensation are contested, judges tend to be deferential to local officials, especially if big money projects with lots of political support are involved.

In more than a few states and municipalities, judgeships are sold in one sense or another, and are almost everywhere sought as rewards for friends and the politically compliant. In such hands, "just compensation" and other putative restraints on the taking power readily become illusory in the trial courts. With differentiating principles absent or unclear, even skeptical appellate courts are often at a loss as to a sound basis for intervention.

Comparisons with public contracting and taxation are unappealing given the systemic abuses and corruption in both fields. Even in states with special constitutional limitations as to spending and taxation, there has been a clear trend over the last generation for courts to erode such provisions through interpretation and judicial manipulation. That experience ought to be cautionary against a belief that courts will restrain the new private taking power in any meaningful way.

Second, although Kelo was the first Supreme Court case in which a private home was taken in a forced sale to be conveyed to a private developer, the principle that public use means public purpose--regardless of whether the ultimate transferee is public or private--has been well established for decades. Yet there is little evidence of widespread abuse of the power.

Unfortunately, the "evidence of abuse" that comes to the note of law professors is usually appellate law case opinions, not immediate facts, raw experience, audits, public policy case studies, newspaper stories, or opinion polls. Relying on case opinions in reported law cases to measure abuse is like measuring the merit of a medical treatment not by recovery rates and comparison studies but by whether doctors using the treatment went bankrupt from diminished income or from damages awards in suits by the estates of dead patients.

Third, it may be true that publicity surrounding the Kelo decision itself has awakened some local officials to the extent of their eminent domain powers--as suggested in a column for this site by Douglas Kmiec. Yet, at the same time, that publicity has sparked an even greater response in the other direction; local, state and national politicians eager to keep their jobs will not lightly use their eminent domain power, now that they see the intense public hostility towards forced sales of homes to private developers.

The publicity and public anger is temporary, while the increase in the power and predatory capabilities of government is permanent. Abstract principles aside, in practice, for private parties, litigation is expensive and fraught with risks and burdens. Moreover, by expanding eminent domain power, the Supreme Court has strengthened the power of incumbency and value of political offices that can exercise such power.

Contrary to your reasoning, public sentiment is but one aspect of getting re-elected; support from powerful development interests and an abundance of campaign cash are usually more than enough to overcome the lingering resentments of a handful of "NIMBYs."

Fourth and finally, the Fifth Amendment's Takings Clause is not the only constitutional protection for homeowners. If a state or municipality were to exercise its eminent domain power to force the sale of property simply to spite the owner, it would run afoul of the principle that singling out a property owner on such grounds denies equal protection of the laws. That principle is stated clearly in the Court's terse unsigned opinion in the 2000 case of Village of Willowbrook v. Olech, which the Kelo opinion favorably cited in a footnote.

This misses the dynamic of most takings cases. With private takings now having constitutional endorsement at the highest level, the routine abuses of eminent domain will be expanded and retaliation taken through hits to compensation, fees, and costs. There is little if any remedy possible for indirect or whispered threats to opponents of projects requiring eminent domain. Given the institutional biases that favor eminent domain, such threats and retaliation itself are all too potent.

Accordingly, Justices Souter, Breyer, Stevens, and the other members of the Kelo majority need not fear retaliatory forced sales of their property. Nor, thankfully, do I--so if you are one of the millions of Americans who are outraged by the Kelo decision, don't waste your time in a futile effort to persuade the government to buy my home; just send me an incensed email explaining why you think I'm a fool. It's your First Amendment right, after all.

The good professor ignores that First Amendment rights are now limited when one tries to collect cash to campaign against politicians who support eminent domain, and, if one owns a home or other real property, further endangered through the risk of retaliation in the form of a taking or a reduced compensation award. In return, we are offered the ludicrous assurance that the true measure of freedom of speech is that we can still back talk to a law professor for his support of expanded eminent domain.
35 posted on 08/29/2005 7:55:38 AM PDT by Rockingham
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To: traviskicks
possible ping.. 'a confession'

My list is specifically for the Lost Liberty Hotel, so I won't ping on this, but thanks for the heads up anyway!

36 posted on 08/29/2005 8:32:06 AM PDT by Smile-n-Win (Don't let them take things away from you on behalf of the public good!)
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To: wolfpat

As soon as I hit that line, I realized this was nothing more than an institutionalized apologia for the judicial oligarchy and I quit reading it.


37 posted on 08/29/2005 8:33:58 AM PDT by NCSteve
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To: Polyxene
I was particularly dismayed by Laura Ingraham calling for Rehnquist to resign due to his illness.

The utter ignorance of that!

38 posted on 08/29/2005 8:36:33 AM PDT by OldFriend (MERCY TO THE GUILTY IS CRUELTY TO THE INNOCENT ~ Adam Smith)
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To: Restorer; the invisib1e hand
Isn't this what conservatives claim we want judges to do? Put the law above their own preferences?

That is right. Where Stevens gets it wrong is that this is not simply an issue of the law versus his personal preferences (or what he considers "wise") but a certain interpretation of the law versus the rights of individuals. Since the very purpose of all law and government is to protect the inalienable rights of individuals, it is always the law (or its supposedly "correct" interpretation) that must give in such a conflict.

39 posted on 08/29/2005 8:39:24 AM PDT by Smile-n-Win (Don't let them take things away from you on behalf of the public good!)
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To: alessandrofiaschi
But now look what happens under the approach favored by many of the Kelo critics. Suppose that a city wants to build a sports stadium on a plot of land that includes some parcels held by owners who do not want to sell at the prevailing market price. Everybody concedes that if the stadium will be owned by the city, then its construction constitutes a public use that will support the power of eminent domain. But, under the rule of the Kelo critics, if the city wants the stadium to be built and owned privately, then the use is no longer "public." Does that make any sense?

The author's choice of examples runs into a logical conundrum, but it doesn't illustrate his point. It doesn't prove that Kelo is at its heart, libertarian in nature. The municipality has no business being involved in the building of a sports stadium whether it operates the stadium directly or not. A sports stadium is not a true municipal use. If there is sufficient demand for local sporting events to support a stadium, some developer will come along and PAYING MARKET PRICE FOR THE LAND HE NEEDS with no intervention from the city, erect the stadium and make money. If the percentage of locals who would support a team is too low, he won't. Too freakin bad.

40 posted on 08/29/2005 9:00:11 AM PDT by Still Thinking (Disregard the law of unintended consequences at your own risk.)
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To: wolfpat
He's kidding...right?

Depends on your definition of “efficiency”.

If you think about it a single-payer universal-coverage program is always going to be more administratively efficient than the alternatives: no marketing costs, standardized rules and paperwork, no attempt to attract or exclude given classes of participants, that sort of thing – as a result Medicare’s administrative costs are around one fifth that of a typical HMO per patient covered, and as anyone who’s had deal with both knows, from the consumer standpoint it’s usually easier to deal with Medicare’s bureaucracy than most HMO/PPOs.

It is societally more efficient?

That’s a tougher question, and a political one.

For example around 30% of Medicare expenditure occurs during the last year of life, and given the available resources much of that care, on a cost-benefit basis, is pretty difficult to defend on any rational basis of “efficiency”. And it would certainly be easier for a gate-keeping organization not directly beholden to the voters to cut off futile curative treatment and force Grandma into hospice - which is what making Medicare more "efficient" in this sense requires, than to implement Medicare regulations which did the same.

41 posted on 08/29/2005 9:34:01 AM PDT by M. Dodge Thomas
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To: Savage Beast
"Don't blame me, he appears to be saying: I was just following the law."

Yes, and don't blame the developers who seize your property, Stvens. They're just following the law too.

(BTW, isn't that what the Nazi defendants said at the Nuremberg Trials? I'm sure it's just a coincidence.)


Very interesting...

Who said the following?

This year will go down in history. For the first time, a civilized nation has full gun registration. Our streets will be safer, our police more efficient, and the world will follow our lead into the future!
42 posted on 08/29/2005 10:20:54 AM PDT by BedRock ("A country that doesn't enforce it's laws will live in chaos, & will cease to exist.")
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To: alessandrofiaschi
Everybody concedes that if the stadium will be owned by the city, then its construction constitutes a public use that will support the power of eminent domain. But, under the rule of the Kelo critics, if the city wants the stadium to be built and owned privately, then the use is no longer "public." Does that make any sense?

Yes. That's what the words "public use" MEAN.

As for the separate issue of whether government-owned stadiums are a good idea, there is a separate solution -- government need only stay out of the entire business.

Given the vocal criticism that economic libertarians (and others) have leveled against Amtrak, do they really want to advocate an interpretation of the Fifth Amendment that would lock in government ownership of railroads and other public projects facilitated by the power of eminent domain?

Yes. The effect of this requirement is to curtail eminent domain to its proper sphere (facilitating the limited range of projects which are proper functions of government).

43 posted on 08/29/2005 10:29:11 AM PDT by steve-b (A desire not to butt into other people's business is eighty percent of all human wisdom)
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To: Still Thinking
But now look what happens under the approach favored by many of the Kelo critics. Suppose that a city wants to build a sports stadium on a plot of land that includes some parcels held by owners who do not want to sell at the prevailing market price. Everybody concedes that if the stadium will be owned by the city, then its construction constitutes a public use that will support the power of eminent domain. But, under the rule of the Kelo critics, if the city wants the stadium to be built and owned privately, then the use is no longer "public." Does that make any sense?

First off, the meaning of "original intent" needs to be rediscovered by the Supremes. Secondly, if a "city wants to build a sports stadium on a plot of land that includes some parcels held by owners who do not want to sell at the prevailing market price," then it depends on how bad the city "wants" the land. Notice the usage of the word WANT, and not the word NEED. A vast difference, so if it is wanted bad enough, the city will pay what ever it is worth in the homeowners eyes, not vice-versa. The afterthought of selling to a private individual is mute. Getting past the first hurdle is a constitutional one that should be looked at with great interest and concern.

There is not one but two clauses in the Fifth Amendment concerning an American citizens property rights. Both of these were overlooked in the Kelo case.
44 posted on 08/29/2005 10:41:08 AM PDT by BedRock ("A country that doesn't enforce it's laws will live in chaos, & will cease to exist.")
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To: alessandrofiaschi
So why did Justice Stevens rule for the city in Kelo? I believe it's because, in his judgment, the interpretation of the Constitution permitting redevelopment programs such as New London's is sensible,

Hate to tell you bud, but Justice Stephen's job is not deciding what is "sensible" or not, although I'd bet Stephen's agrees with you.

Did this author ask himself why many of our State Legislators immediatly reacted to restore at least some degree of protection to property owners after the Kelo decision? That it might just be because it has occurred to these politicians that the people are totally outraged that the protection given to them in the Constitution of their personal property is now totally kaput?

Kelo should have been the case to affirm the rights of Americans to own private property without having to worry about local government officials greased by private developers stealing it. I am still so sickened and angered by this I can barely type straight.

45 posted on 08/29/2005 2:19:31 PM PDT by planekT (No fence, no vote.)
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To: alessandrofiaschi

My idea for improving the current idiocy in our judicial system involves combining term limits with the salient aspects of Shirley Jackson's story, "The Lottery."


46 posted on 08/29/2005 2:22:26 PM PDT by Puddleglum (Thank God the Boston blowhard lost)
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To: BedRock
"This year will go down in history. For the first time, a civilized nation has full gun registration. Our streets will be safer, our police more efficient, and the world will follow our lead into the future!"

Adolf Hitler??? Diane Feinstein??? Okay, I give up.

47 posted on 08/29/2005 2:32:39 PM PDT by Savage Beast (Love is the ultimate aphrodisiac!)
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To: alessandrofiaschi

People like Marion Barry think it was a good decision.


48 posted on 08/29/2005 2:33:48 PM PDT by AmericanVictory (Should we be more like them, or they like us?)
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To: alessandrofiaschi

People like Marion Barry think it was a good decision.


49 posted on 08/29/2005 2:33:54 PM PDT by AmericanVictory (Should we be more like them, or they like us?)
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To: Savage Beast

Adolph Hitler [1935] The Weapons Act of Nazi Germany.


50 posted on 09/01/2005 10:02:01 AM PDT by BedRock ("A country that doesn't enforce it's laws will live in chaos, & will cease to exist.")
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