Say what you will about ‘activist judges,’ they are at least getting local legislatures to do the right thing:
States across the country are rushing to pass laws to counter the potential impact of a U.S. Supreme Court ruling in June that allows state and local governments to seize homes for private development. (Related story: Ruling may doom homes)
In Alabama Wednesday, Gov. Bob Riley will sign a law that prohibits the state, cities and counties from taking private property for retail, office, commercial, industrial or residential development. “We don’t like anybody messing with our dogs, our guns, our hunting rights or trying to take property from us,” says state Sen. Jack Biddle, a sponsor of the law.
Delaware also has changed its law since the high court ruling on eminent domain. Legislatures in at least eight other states are weighing proposals this year. More may be coming. And Congress is considering action.
“When legislatures start new sessions in January, I expect the majority of states to take up bills that would restrict the use of eminent domain for economic development purposes,” said Larry Morandi, environmental program director for the National Conference of State Legislatures.
The issue has spawned an unusual alliance among conservatives opposed to the principle of government seizing private property and liberals worried that poor people would be the most likely victims.
Good. Although I don’t know why Gov. Bob Riley likes dogs more than cats.
SomeCallMeTim
Although I don’t know why Gov. Bob Riley likes dogs more than cats.
Uh, ’cause he’s a guy?
M. Scott Eiland
Great–now how about a federal law that actually forces the feds to pay landowners the fair value of their property if they want to preserve the habitat of the spotted cockroach or whatever endangered critter is on the land? The problem with takings law is that the “just” part of “just compensation” is mostly honored in the breach, and that’s been true for a long time now. Kelo was just the last in a long line of disgraceful decisions in this area.
Jess
I’m still puzzled about all the outrage over the SC decision on this; as I understand it, they were not supporting the government’s right to seize privage property for commercial development, but were supporting the states’ rights to make their own legislation on the matter, which is now happening as it should. If I’m misunderstanding this, maybe someone can set me straight, but this seems analogous to all the outrage over, say, the ACLU supporting the First Amendment rights of the neo-Nazis to demonstrate. Granting someone (or a state) the freedom to exercise their rights is not the same thing as agreeing with what they decide to do. Allowing people to make their own decisions (as long as they don’t infringe on the rights of others), no matter how repugnant those decisions seem to you personally, is what it means to live in a free society. Why is this so confusing to everybody?
ppGaz
Cats don’t hump his leg?
Off Colfax
Although I don’t know why Gov. Bob Riley likes dogs more than cats.
Totally off topic, but… Speaking of cats, how’s your kitten doing? Will we see catblogging here?
Mark-NC
Jess:
As far as I’ve read, you are correct. As usual, there has been a massive disinformation campaign against the “liberal” judges for making a correct ruling.
A thought I’ve had about this topic – is there even one “conservative/Republican” who gaves a damn that president Bush got rich using the eminent domain law to sieze property at a fraction of true value?
I doubt there is even one.
Don Surber
“Although I don’t know why Gov. Bob Riley likes dogs more than cats.”
I prefer ferrets.
Steve
Jess is correct. The Supreme Court did not change the law whatsoever. The conservative judges were the activists in this case.
joe
It looks like State Sen. Biddle made the comment about dogs, but, as to the preference for them over cats:
Have you ever tried hunting with a cat?
cfw
M. Scott says:
Great—now how about a federal law that actually forces the feds to pay landowners the fair value of their property if they want to preserve the habitat of the spotted cockroach or whatever endangered critter is on the land? The problem with takings law is that the “just” part of “just compensation” is mostly honored in the breach, and that’s been true for a long time now. Kelo was just the last in a long line of disgraceful decisions in this area.
This confuses what we in CA call “inverse condemnation” (regulatory taking without paying) as opposed to direct condemnation (as in New London Connecticut).
Here in CA at least the public gets paid, if anything, too much for private property in the way of freeways and the like. Lawyers who specialize in taking the cases to court have made so much money for their clients that it is rare that an agency will use eminent domain powers. This has an impact on siting of new schools, extending freeways, etc.
There is no such thing as a free lunch – the more we bow down to those who will not sell private property “for any price”, the more we block or hinder things like new school construction, road improvements, etc.
Taking by fiat (with just compensation) for schools or roads is no different from taking on that basis for a new shopping mall or Dodger Stadium from the perspective of the person who is forced to sell the house he lived in since birth for what a jury finds is a fair price.
What we might want to keep in mind: 1 fall in love with people not assets because 2 you cannot take assets with you when your life comes to an end.
I “love” my house and would hate to lose it, but if paid the fair price, plus relocation money, plus all money needed for experts and lawyers, I could adjust. My wife could adjust. My kids could adjust. This is so even if Pfizer ended up using the house for a corporate training facility.
Let’s get too emotional about people issues, and keep real estate and guns and the like in perspective. Life is short.
Don Surber
“conservative judges were the activists in this case”
Sand. Hole. Ostrich. Head.
Steve
Be serious.
Every time a liberal judge is called a “judicial activist,” it is because some legislature made a law, but the judge said, “you can’t do that, it violates a right that I think should be protected.”
That’s exactly what happened here, except that the “right” being protected is not the right to privacy, it’s property rights.
Nowhere in the Constitution will you find a limit on the power of the states to use eminent domain, except that just compensation must be paid. Nowhere does it place a limit on what a “public use” might be, nor does it even literally say that property can only be taken for “public use.”
The Kelo decision upheld a 50-year old precedent. It did not change the law in the slightest. It left the law of eminent domain for the states to sort out, just as it always has been. If you want to argue otherwise, feel free to actually cite some case law.
If deferring to state and local governments and letting them make their own, majoritarian decisions is the new definition of “judicial activism,” I’m afraid I didn’t get that memo.
John Thacker
Nowhere does it place a limit on what a “public use” might be, nor does it even literally say that property can only be taken for “public use.”
Okay, you certainly can read the clause to say that property doesn’t have to be taken for public use. However, if you read it that way, then it clearly says that “just compensation” would only have to be paid for when it’s taken for public use, and presumably that the government could take private property for private use without compensation at all.
The Kelo decision upheld a 50-year old precedent. It did not change the law in the slightest.
Not quite correct. Berman in 1954 only addressed the issue of areas that were considered “blight.” This explicitly addressed the issues of non-blighted areas but ones where the new development would produce economic development. It was a small change, but the entire change in the concept of “public use” has been a serious of small changes down a slippery slope. The net effect of many tiny changes was a large one that upset people.
Is there even one “conservative/Republican” who gaves a damn that president Bush got rich using the eminent domain law to sieze property at a fraction of true value?
Yes, plenty of us, though it’s not the only way he got rich. Sad to say it’s standard practice for most sports stadiums, too. As well, one could note that sports stadiums could be considered to fall into a “public use” category in a similar method to railroads. (Private ailroads were accepted as a public use in a decision about 90 years ago, rather than 50– see Justice Thomas’s Kelo opinion for a discussion of the extensive slipperly slope.) Still, I oppose it. Are there any liberals or Democrats who care about the New York Times getting rich off getting its new headquarters at a fraction of its price after New York City used eminent domain to seize land from landowners and give it to the New York Times Company with a sweetheart deal?
As regards the other comments here about states’ rights, it was my understanding that the Fourteenth Amendment Incorporation Doctrine was a standard belief. Even Justices Thomas and Scalia certainly hold to it. The Fifth Amendment clause about eminent domain applies to the States. That’s extremely settled legal opinion in nearly all branches. Where some conservative Justices differ is about rights which are not specified in the Constitution at all, such as the “right to privacy.” The restriction on eminent domain has a firm textual basis, though.
Steve
Kelo did involve a blighted area, what Connecticut called a “distressed municipality.” The Supreme Court expressly held that the city’s “determination that the area was sufficiently distressed to justify a program of economic rejuvenation is entitled to our deference.” I really can’t find any sense in which Kelo is an extension of Berman; it’s the same case.
If the Constitution was meant to suggest that there is some distinction between takings for “public use,” which are permitted, and takings for “private use,” which are prohibited, the Framers sure chose a strange, non-English way of expressing that concept. In case after case, the Supreme Court has declined to set any limits on what the people of a given State are permitted to define as a “public use.” For the umpteenth time, Kelo once again declined to set those limits; no serious legal observer expected the opposite result.
les
I’m probably piling on, but I have to join the folks asking “What activism?” Although you wouldn’t think it from the uproar (mostly, of course, from folks who haven’t the faintest notion what the case was about), this case seems to me to be pretty much perfect conservative non-activism by the Supremes. No federal “usupation” of state’s rights, no imposition of a judicial solution at all; they said, hey, it’s the job of local government to decide what’s blight, what’s public use (and plenty of the public like the services or tax relief that come from an expanded property/income/sales tax base) and how they should pursue it. And if states and localities are having to change their laws because of the uproar: a) they can, because the court was not active; and b) where were these pig-ignorant screamers when their elected representatives were deciding that economic development was a legitmate public “use”? The court is upholding their own f’in laws, and they’re blaming the court; spare me.
les
A small side note, that I noticed above–the Kelo case doesn’t involve any federal laws, and just compensation is almost always decided at the most local level; other than highways, you’re usually at the school board/city government level in condemnation cases. As was Kelo.
Stentor
John,
Good. Although I don’t know why Gov. Bob Riley likes dogs more than cats.
He may not, but I know one thing for sure, he’s definitely playing to the rubes in that statement.
wilson
“Are there any liberals or Democrats who care about the New York Times getting rich off getting its new headquarters at a fraction of its price after New York City used eminent domain to seize land from landowners and give it to the New York Times Company with a sweetheart deal?”
Not sure what happened in NYC. In CA, the developer pays all the costs, including attorneys fees and expert fees for both sides, plus relocation expenses. Developers have to be coaxed to get involved. Orange County did it for Main Place – shopping area off the 405 – from concerns about blight.
Without blight, local entities have other ways to spend their time, and developers are not going to help out.
System does not seem to need much fixing, at least from my perspective.