T Nation

Assault on Private Property Rights


#1

I've been following this case (Kelo vs. New London) for a while now since it originated here in Connecticut, but when I saw the U.S. Supreme Court affirm the decision of the CT Supreme Court, I was outraged and amazed.

http://www.msnbc.msn.com/id/8331097/

I get the idea of eminent domain (hell, I used to practice real estate law.... until I wised up. lol), but this decision could have ugly and far-reaching consequences since it allows for local government to take your property and give it to another private party for economic development, so long as it is viewed as being in the best interests of the community. Sure, there has to be a form of "equitable compensation" to you as the aggrieved homeowner, but as Justice Thomas (who seems to be hitting his stride as a jurist of late) points out in his dissenting opinion:
"The consequences of today's decision are not difficult to predict, and promise to be harmful. So-called 'urban renewal' programs provide some compensation for the properties they take, but no compensation is possible for the subjective value of these lands to the individuals displaced and the indignity inflicted."

Also, Justice O'Connor makes a great point about how this kind of treatment will disproprotionately benefit those with money and access to the halls of power:
"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."

So be careful out there if you live in an area where "urban renewal" or "community development" might be underway...

Kuz


#2

I never thought for a second the decision would come down that way. I'm stunned.


#3

It's kind of hard to believe, I just never expected this court to do this. The homeowner's attorney got it exactly right:

So if I decide that your home would make a great location for a 7-11, all I should need to do is convince the city council that the sales tax revenue from my store qualifies as "economic development". They can then simply condemn your property and give it to me. What a great country!


#4

I was about to post this, but saw Kuz had done it first. I am shocked and appalled.


#5

Those damn liberal activist judges...

Oops


#6

Same here. I thought that the CT Supreme Court just flat out got it wrong (as courts will sometimes do), but the U.S. Supreme Court could not POSSIBLY agree and the day would be saved... well, guess not. I guess I need to get the full decision to see if there are any limiting factors on the "public good" (a term which positively creeps me out... sounds positively 1984 or Brave New World).


#7

The Supreme Court has become a hitman of big business. Congratulations.


#8

Sick. Just sick.


#9

unsurprisingly, the conservatives on the bench voted against this, but were outvoted by the liberal side of the bench.


#10

Aided, no doubt, by the ever-unpredictable "Swingin' Sandra."


#11

"Swingin' Sandra" dissented. This is Kennedy and Ginsburg... yay for trashing the constitution, I suppose.


#12

Wow! I'm surprised. I hadn't seen the vote; I was just venturing a guess. No matter how they sliced it, it's a blow to freedom.


#13

I don't think it was about business. I think it was more about the liberal justices on this court falling lockstep into the old left wing ideology that the gov't knows best. Especially when it comes to redistributing wealth and private property.

It's a very sad day indeed.


#14

Yup, they flat out got the law wrong. Interestingly, Thomas also dissented in the medical marijuana case saying that the majority's decision essentially placed no limit on the Commerce Clause. He was right about that, too.

Kuz, do you still practice law or have you moved on to other pursuits?


#15

Both Prof X and RJ make interesting points because, in the end, the people who are most affected here are some very regular folks. I am not sure the photo in the MSNBC article does justice to that area, but we are not talking about some high-class neighborhood at all - just some regular, working class folks who happen to have (what now turns out to be their misfortune) property located on the CT shoreline.


#16

An interesting angle to this case is that both the majority and the dissent recognized that the action now turns to state supreme courts where the public-use battle will be fought under state constitutions. So apparently all is not completely lost.


#17

Interesting question you pose, Mike. I work doing contracts within the Legal department of a big aerospace company. So, while I am CT and NY admitted, I do legal stuff, but do not technically practice law on behalf of the company. Kind of weird, but I'm sure you know what I mean (it is hard explaining it sometimes to people who are non-lawyers).


#18

This is excerpted from an LA Times story on the case -- Kennedy was the swing man...

...

In today's decision, the court went a step further and said officials need not claim they were condemning blighted properties or clearing slums. Now, as long as officials hope to create jobs or raise tax collections, they can seize the homes of unwilling sellers, the court said. This "public purpose" is a "public use" of the land, the court said in Kelo vs. New London.

The justices said they were unwilling to "second guess" local officials on what is best for their communities.

"Promoting economic development is a traditional and long accepted function of government," said Justice John Paul Stevens.

Judges should give city councils and state legislatures "broad latitude in determining what public needs justify the use of the takings power," he added.

Justices Anthony M. Kennedy, David H. Souter, Ruth Bader Ginsburg and Stephen G. Breyer joined him.

The dissenters said the court was ignoring the basic rights to private property that were written into the Constitution.

Justice Sandra Day O'Connor said all property was now potentially subject to seizure.

"Nothing is to prevent the state from replacing any Motel 6 with a Ritz-Carlton, any home with a shopping mall, or any farm with a factory," she said.

Justice Clarence Thomas said that the impact of these redevelopment plans falls heaviest on the poor, minorities and the elderly.

"Over 97% of the individuals forcibly removed from their homes by the 'slum clearance' project upheld by this court (in 1954) were black," Thomas said.

Suzette Kelo, the New London, Conn. homeowner who sued to save her home, said she was "very disappointed the court sided with powerful government and business interests."

Dana Berliner, one of her attorneys at the Institute for Justice in Washington, called it a "dark day for American homeowners. Every home, small business or church would produce more taxes as a shopping center or office building. And according to the court, that's good enough reason for eminent domain."


Think about this for a second. Whenever the government thinks it can raise tax revenues, it can force property owners to sell to developers at depressed prices (the result of a forced sale). That is no kind of restraint at all. This does to the Emminent Domain Clause what Wickard v. Filburn did to any restrictions on Congress' Commerce Clause Power.

I'm beginning to think it would be a good idea to start over -- just by wiping out all USSC precedents and enforcing original intent of the Constitution going forward...


#19

This $h!t pisses me off!

What the F are those morons smoking at the SCOTUS?!?!?!?!

Take my property?

Bull$h!t


#20

Er, I was so fired up I misnamed the Constitutional Clause this opinion throttled to death -- it's the "Takings Clause."