Justice Stevens Adds Fuel to the Fire Over the New London Eminent Domain Case

FindLaw ^ | Monday, Aug. 29, 2005 | Professor MICHAEL C. DORF

[Final Authority]

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.

[Redleg Duke]

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

[Always Right]

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

[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.)

[Restorer]

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.

[Restorer]

"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.

[sergeantdave]

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.

[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.

Always was and always will be.

[Joe Boucher]

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

[dearolddad]

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.

[the invisib1e hand]

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.

[traviskicks]

possible ping.. 'a confession'

[Polyxene]

"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!!

[pointsal]

PING

KELO IS JUST WRONG.

[Rockingham]

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.

[Smile-n-Win]

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!

[NCSteve]

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.

[OldFriend]

I was particularly dismayed by Laura Ingraham calling for Rehnquist to resign due to his illness.

The utter ignorance of that!

[Smile-n-Win]

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.

[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?

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.