This certainly seems like good news:
In a rare display of unanimity that cuts across partisan and geographic lines, lawmakers in virtually every statehouse across the country are advancing bills and constitutional amendments to limit use of the government’s power of eminent domain to seize private property for economic development purposes.
The measures are in direct response to the United States Supreme Court’s 5-to-4 decision last June in a landmark property rights case from Connecticut, upholding the authority of the City of New London to condemn homes in an aging neighborhood to make way for a private development of offices, condominiums and a hotel. It was a decision that one justice, who had written for the majority, later all but apologized for.
The reaction from the states was swift and heated. Within weeks of the court’s decision, Texas, Alabama and Delaware passed bills by overwhelming bipartisan margins limiting the right of local governments to seize property and turn it over to private developers. Since then, lawmakers in three dozen other states have proposed similar restrictions and more are on the way, according to experts who track the issue.
Of course, I say it is good news, when most likely some areas are going to overdo it, and then good luck getting a road put in or cleaning up the blighted areas. Overall, as I was furious by the Kelo decision, I think this is a good thing.
Lines
Not to say I told you so, but oh well: I told you so.
Kelo was a wake up call to the states to modify their existing laws surrounding eminent domain and to try to come up with more reasonable methods of securing blighted areas and to guarantee a more fair-market value to those holding the land.
Do you really want this administration or Republicans (big business) to write up a law that would be fair to the average person?
Steve
It is just so much better for the states to craft their own rules than for the Supreme Court to hand down a one-size-fits-all ruling that restricts everyone. While it’s fashionable to bash Kelo, that’s an argument conservatives are generally sympathetic to in other contexts!
fwiffo
I don’t think very many people on the right or left liked Kelo or the implications, but that doesn’t mean it was an incorrect decision. In fact, the dissent is the activist position, as the Kelo case is not significantly different than many previous cases. Some of those cases even led to changes like this at the state level (IIRC, there was a similar case decided by the Michigan supreme court that led to an amendment to the state constitution to restrict eminent domain).
So, IMO, Kelo isn’t really a bad decision so much as a respect for precident of some crummy law. And now the correct thing is happening – states are excercising their power to fix the law. Which is exactly the right outcome. Everything has worked as it should. Judges interpreted the law and precident as it exists, everyone decided it sucked and have started to change the law through their elected representatives.
I would favor even a federal constitutional amendment to clarify the scope of eminent domain).
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I wonder if right-wingers so upset about the powers granted (or more correctly, not restricted) by Kelo are going to get upset at all the new powers that the Executive is usurping…
The Other Steve
This is exactly what the Kelo decision intended to happen.
Kelo was an example of how hot heads don’t understand the law.
Jack Roy
Fwiffo and Othersteve have it exactly right. There is no greater irony than that of legal conservatives who spend 90% of their time despairing judicial “activism” and the other 10 savaging the Kelo Court for failing to invent a new constitutional right that didn’t appear in the document itself.
Mr Furious
The Kelo decision was an outrage but only becauuse the law that it upheld was outrageous. They made the right legal decision, it just happened to be personally repugnant.
Those people in New London got screwed, but it kicked off a ripple effect that should benefit others for the future.
Dantheman
“and the other 10 savaging the Kelo Court for failing to invent a new constitutional right that didn’t appear in the document itself.”
And which is contrary to how this clause of the Constitution had been interpreted since the first decades of this country, when eminent domain was used first for privately-owned canals and then railroads. “Judicial activism” is Republican code for “decisions which favor Democrats”.
zzyzx
Yeah, if the Supreme Court strikes down part of the Clean Water Act (as supported here in National Review ), I don’t expect to hear too many complaints about Judicial Activism.
Gray
“Overall, as I was furious by the Kelo decision, I think this is a good thing.”
I don’t like Kelo, either, but imho it’s been the only responsible way the Supremes could handle that case. If the constitution is plainly lacking in one aspect, they can’t engage in judicial activism, they have to decide on it as they are bound by law. But it’s perfectly ok and reasonable to point out that deficit, thus throwing the ball back to the lawmakers. And that’s were it belongs. Good to see that the legislative is stepping up to the plate in this instance.
Steve
It’s not that everything should be left up to the states, by the way. The important point which the Kelo majority recognized is that land use and zoning are perhaps THE quintessential local issues.
scs
Was Kelo really a “right” legal decision? These are the words from the amendment:
.The seizure of public property is supposed to be used for the ‘public use’. It may not matter whether what is then developed is privately owned, as long as the USE for it, is for the public. It seems that when Justices or judges interpret these laws, they have to make an educated guess as to the meaning of certain words or phrases in the law, in this case “the public use”. To act like the meaning of this phrase is set in stone is foolish. The Justices in my opinion made a faulty decision here, both ethically and legally. The “public use” should be interpreted to mean just that- something used by the public. Taking perfectly fine private properties and building more expensive private properties in that location, may expand the local tax base, but the new use for the actual property is not actually for the “public”. It’s not rocket science here. I can’t believe anyone would even try to defend this decision.
Pooh
Exactly. I’ve always thought that the reaction to Kelo was vastly overblown. Of course I made the mistake of reading the decision before I read any of the commentary. That being said, the facts of that case have been overlooked – the City of New London studied the hell out of the proposed project and said ‘this would be a good thing’. Allowing them to go forward is not a blank check for rampant condemnations and what not, repeat after me “Kelo is distinguishable on the facts, your honor” – though it does, as others have noted, give states good incentives to modernize their eminent domain provisions.
scs
Sorry but and ‘this would be a good thing’ “Public Use”
scs
Okay- this should be:
Sorry but ‘this would be a good thing’ does NOT equal “Public Use”
For some reason it didn’t print my greater than, less than symbols.
Steve
scs
Well that’s fine. For anything public, it may pass. However my understanding was that a large portion of the development was private housing. It depends then on proportion – what percent was public, what percent private use. We then have to ask is the private portion necessary and/or should that part be eliminated, and if so, would the project have still gone through? In other words, is the public part a lesser part of the plan, and the private part, with the financial incentives involved, the greater part?
Steve
You ask very good questions. You’re correct that you can’t take a private development, throw in a single public building, and say “this counts as a public use.” What the Supreme Court has said in the past, essentially, is that if you have a unitary redevelopment scheme with an overarching public purpose, the courts won’t analyze it lot by lot to ensure that every single building is public.
One of the reasons why not a single legal scholar was suprised by the result in Kelo is that the facts of the case really weren’t so unusual or egregious. A few months back, I remember John linking to a story from New Jersey that was far worse. People who have a problem with Kelo basically have a problem with the concept of eminent domain in general – not that I disagree, it’s a power that gets ridiculously abused sometimes!
Pooh
Sorry, I was inexact in saying ‘this would be a good thing’, rather I should have said ‘this counts a public use’. And Steve, per usual, is correct.
scs
Well I agree he made good points as well. And at least he tries to make a rational case and back up his points, which is more than I can say for many posters on here!
les
The point is, the Supremes quite correctly said, “let the (local) public decide what public use is.” Fuckin’ democracy anyway.
Jack Roy
Scs, I can’t tell if that’s ironic or just asinine. You’ve accused the Justices of acting unethically (which is a truly bizarre allegation—did they take bribes? fix cases?), based on nothing more than “your own opinion,” yet you feel “many posters” don’t make a rational case or back up their points? And as to the rest of your argument—oh, the Justices have to use their intuition because the meaning of “public” isn’t self-evident, therefore it ought to mean this—the non sequitur is really appalling.
scs
WHAT???
Okay… let me explain this for you. I didn’t accuse the judges of acting unethically. I said the decision would be better ethically. If a judge has to make a decision between two alternatives, he can consider which decision has more “ethical” merits to it. If he chooses one which he or she considers more ethical than the the other, it does not mean the other decision is “unethical” – its just means one may be more ethical than the other.
Well you got me there a little. Perhaps I did not express that well, but I would hardly describe it as ‘appalling’. Let me clarify it for you. Unlike previous poeters who posted that the judges had to follow the “law”, it is clear that laws can be “interpreted”. The justices could interpret the phrase “public use” broadly or narrowly. A broad interpretation of “public use” could mean to increase the tax base. Narrowly should mean just what it says – for ACTUAL public use of the property. So while the law can be interpreted or stretched if you will, I believe the justices should to stick the the obvious meaning of “public use”. I hope that is clearer for you.
Jack Roy – fyi, you are on the list of quetioning for me now,
Jack Roy
Ahem:
Ahem:
Sigh. And this from the same guy (I believe) who thought it was worth his time to object to the conflation of what would be a good idea and what is a valid public purpose? On behalf of all the “quetioning” “poeters,” please allow me to declare this insufficiently explained.
On the subject at hand…. I’m going to just make the inference that you’ve never been near a law school. Hardly a character flaw, to be sure. However, several of us were having a discussion earlier about the meaning of judicial “activism.” Roughly, we were making the observation that many conservatives, who in the context of, say, abortion, would be livid that the Court would recognize rights not clearly enumerated in the text of the Constitution, were outraged that the Court refused to recognize exactly such a not-clearly-enumerated right in Kelo. This isn’t to disparage “strict” construction or “loose” construction as interpretive canons, but merely to point out there’s a certain risk of inconsistency when you place so much of the anti-abortion argument on the right not clearly being spelled out in the text of the document, then wish to argue that the Court got it wrong in Kelo.
You’re free to think the Court got it wrong in Kelo, of course, as is John Cole. But those in the legal mainstream are entitled to point out that to do so is, fundamentally, to wish for judicial activism. In fact, judicial activism is just another term for the interpretive philosophy you’ve adopted, that of strict constructionism. The whole point of the term “activist judges” it to point out those judges who are willing to substitute their own judgments about the proper scope of government in the place of those elected legislators who might have contrary opinions. Strict constructionism goes precisely in that direction. Contra, say, Oliver Wendell Holmes, famously of the opinion (for a time, at least) that judges should uphold any governmental action if it could be supported, not only by the best reading of the Constitution, but by any reasonable reading of the Constitution. Justice Holmes felt his fellow citizens might be making a dreadful mistake; still, it was his job in a democracy to allow the people and their representatives to make those decisions for themselves.
In short, welcome though you are to insert yourself into a discussion about legal terminology and judicial philosophy that you’re woefully underprepared to take up, and as a member of my profession I encourage the interest and do hope you will take the time to read and learn more, your objections are not responsive to the debate at hand.
And on the larger dispute between us…. It’s a good habit to get into, as one grows out of childhood, to understand the difference between “things I don’t like” and “things that are self-evidently wrong.” I don’t think you’ve fully come into that habit. Perhaps the issue at hand in Kelo is emotionally signficant for you. (I can relate; my own dear grandmama was an economically depressed zoning region.) Yet it should not be a difficult realization that, especially in the rarified world of constitutional law, there just might be external considerations of legal doctrine that could outweigh your feelings that “Such a seizure feels wrong! It must be unconstitutional!” Unschooled intuition sometimes serves us well. Yours, at least in the instant case, does not.
tzs
Jack–bravo for your commentary. I detest people who want to change the rules when the other side starts benefitting. What’s sauce for the goose is sauce for the gander.
Armando
As a Lefty who was eviscerated by my side for saying Kelo was rightly decided, I wonder if John cole gets it yet?
These issues are for the legislature to decide.
Not the courts.
Do you understand what true judicial moderation means now?