Another View On KELO
By Justin Gardner | Related entries in Supreme CourtAt the time I decried, and I still think it’s rightfully so.
But this perspective sheds some light on the why the court ruled why they did:
Contrary to what many continue to believe, the Court in Kelo did not blaze any new trails. It was well-settled law dating back to Berman v. Parker in 1954 that the phrase “public use” in the Takings Clause included economic redevelopment. The issue in Kelo was not whether or not such takings were constitutional–even the dissenters agreed that they were. The question was whether such takings should be limited to poor neighborhoods (”blighted property”), or whether all neighborhoods–including Kelo’s middle class neighborhood in New London–were potentially subject to this particular use of eminent domain power. The majority correctly refused to draw an arbitrary line based on the value of the property at issue, a move that would have exempted the middle and upper classes from this use of eminent domain while leaving the poor to fend for themselves.
Even though I strongly oppose these eminent domain rulings and think they’re contemptible, context is important. In essence, the court was ruling given current law, and this certainly goes against the whole “activist judges” meme that is pinned on the left so often.
Do take a look and please law students/lawyers…tear me a new one.
The majority in Kelo understood this. Indeed, they went out of their way to make it clear that nothing about the decision prevented the political branches from acting: “We emphasize that nothing in our opinion precludes any state from placing further restrictions on its exercise of the takings power.” In fact, the “liberal” justices in Kelo did exactly the opposite of what conservatives always complain they do; they refused to read into the Constitution a textually-dubious right, and instead left the issue to be decided by state and local governments, who are better able to address these issues anyway.
Your thoughts are welcome.
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February 22nd, 2006 at 10:26 am
Everytime SCOTUS overturns a decision, it does not make the ruling “activist.” If this is your understanding of the conservative “meme” of judicial activism — you are wrong.
Kelo was affirmation of prior decisions of “judicial activism.” This is why conservatives were and are outraged, because here was an opportunity to overturn a line of “activist” decisions and it was squandered. This line of decisions includes Hawaii Housing Authority v. Midkiff in which SCOTUS affirms nothing less than a banana-republic style plan for land reform — something the Sandanistas would have been proud to call their own. I personally don’t think that State and local governments should have to pass laws to ensure citizen’s there 5th Amendment rights. And BTW, since SCOTUS in their infinite wisdom like to take ad hoc, self-affirming polls in determining death penalty and sodomy cases — why didn’t they use the same “societal consensus” rational for overturning eminent domain.
February 22nd, 2006 at 11:31 am
I took a look and the post does not seem off the mark. The Court relied on the Berman case for the very reasons that you raise.
I’ll just try to point how the dissent tries to distinguish Berman. In Berman, the purpose of the taking was to address the problem of blighted areas. The legislature made a plan to address this problem by clearing out the blighted areas and redeveloping them. Thus, the taking itself directly served the public since the property being taken was the actual harm which was being addressed by the legislature. In the Kelo case, there was nothing wrong with the homes being taken.
The author you quote says that distinguishing this case requires arbitrary line drawing based on the value of the house being taken. The dissent disagrees saying that such takings should only permitted when the legislature finds that the property being taken is the actual harm that is being addressed by the legislature.
Either way, your post follows the opinion of the Court and does not appear to be misleading.
Okay, if you insist. Justin, you’re an ignorant pretentious little slut and your blog is a joke and you smell like cabbage.
February 22nd, 2006 at 11:36 am
By the way, that last line of my post is in response to your request that lawyers and law students tear you a new one. I tried to quote that part of your post but am apparently still too dumb to figure out how to do that.
February 22nd, 2006 at 12:11 pm
Just use the blockquote tags and you’re good to go.
February 22nd, 2006 at 12:56 pm
No, only when the more liberal justices overturn something, right?
Originalism HO!!!
February 22nd, 2006 at 2:04 pm
Justin, thanks for the link.
Just a quick response to DosPerros, who writes:
Kelo was affirmation of prior decisions of “judicial activism.� This is why conservatives were and are outraged, because here was an opportunity to overturn a line of “activist� decisions and it was squandered.
This is a fair position, but hopefully you realize that it’s a position that was not even shared by the dissenters in Kelo. O’Connor made this clear in her dissent (”The Court’s holdings in Berman and Midkiff were true to the principle underlying the Public Use Clause”). So even the dissenters accept Midkiff and Berman and therefore concede that at least some takings for economic redevelopment purposes are constitutional. Holding that belief is not an “activist” position. It’s not absurd to believe that the phrase “public use” includes at least some takings for econonic redevelopment, which is probably why nearly all the Justices on the court interpret the phrase to include such takings.
Once you concede that at least some of these takings are constitutional, the question then becomes: where do you draw the line (and perhaps more importantly, who is best equiped to draw that line). The dissenters in Kelo essentially wanted to impose a vague “extraordinary circumstances” test on such takings. As I make clear in my post, there no textual basis for doing so, and it would be bad policy. It would insure that this form of eminent domain only affects poor people, and therefore gets zero attention from the political branches. It would also invite endless litigation. Instead, the court refused to draw such a line and encouraged the political branches to legislate. This is exactly what conservatives contend that the court should have done in Roe v. Wade, rather than removing the issue from political process.
As a textual matter, it is not at all clear that the constitution creates a right to be free of takings for economic redevelopment purposes. The obvious point of the Takings Clause was to insure that all takings are compensated, not to create a robust right to be free of takings. It’s not at all clear to me (nor anyone on the Supreme Court, except perhaps Thomas) that the phrase “public use” was intended to be interpreted rigidly to require government ownership and operation of the land being taken. The Supreme Court was right not to create such right where the textual basis for it so dubious.
February 22nd, 2006 at 2:39 pm
I have taken a lunch-time poll here at the court, and 9 out of 10 lawyers/judges agree that the taking in Kelo was constitutional, and that it is well-settled law that “public use” includes economic redevelopment. Like your post says, the real issue was whether the taking had to be restricted the taking of property that was causing the actual harm, and if so, whether that was unfair to the poor.
With that perspective in mind, it seems like the dissenters in Kelo were just trying to protect the middle and upper classes from these types of takings. While I understand their argument, our country has enough “haves” vs. “have nots” problems. If the dissenters had their way, we could then use the ruling to take away the property of all poor people that could be reasonably described as “blighted.” And, because there is no elevated scrutiny for poor people (as there is for race, religion, gender, etc.), the government could easily take away poor people’s property by mere asserting a rational reason for it, which is the standard for the lowest level of scrutiny in constitutional law. Under that level, almost any reason given by the government would be good enough.
Since rich people can get their property taken, there will probably legislation enacted in the states to remedy this problem. If only poor people’s land could be taken, people would be less likely to do anything about it.
February 22nd, 2006 at 3:10 pm
I’d like to hear your thoughts on this latest comment DP.
February 22nd, 2006 at 3:14 pm
Meredith — please ask the entire Court of Appeals en banc to explain why economic redevelopment would be necessary in a rich neighborhood. It is a canard. It is farsical. By definition, that neighborhood doesn’t need economic redevelopment. Oh, but we’re talking about the “whole” city — and tearing down a few mansions to build a Walmart is only fair for poor people. We’ll transport them to work at Walmart in YOUR car which the gov’t will also confiscate for “economic redevelopment”. Hey, I kind of like this — I feel like Sadam Hussein. I love the little class warfare thing we have going on here — real cool. Well, like you and Justin pointed out, good intentions come with unforseen consequences and Kelo has probably done nothing but hurt the “have-nots” in this country.
February 22nd, 2006 at 3:31 pm
Justin, I don’t disagree with any of the points of law that Meredith puts out there. It was settled precedent. I continue to think the decision was unfortunate, though, like yourself.
February 22nd, 2006 at 4:49 pm
Dos,
As long as I get “just compensation” they can have my car! Heh. A little “takings” humor. I’m not really excited about any of this, but I guess I just think that I would rather the result be the way it was then the other option. It’s doubtful that anyone will try to claim Mission Hills (very affluent neighborhood in KC) for public use, but at least if those residents are paranoid that the government will take their property, they have enough money and clout and money and connections and money to make sure the legislature passes a law in our state to prohibit this nonsense for everyone concerned.
Otherwise, if only “blighted” areas were affected, I’ll bet a lot of people could end up advocating for the government to definitely go ahead and take those properties away because it might improve some of those communities (read “rid our neighborhoods of certain property owners that do not take very good care of their property” AKA “poor people of all shapes, sizes and colors”) . . . . wait a minute – maybe I like that idea. (It’s just the leftover republican in me talking)
February 22nd, 2006 at 5:24 pm
Meredith — actually BROOKSIDE (yuppie hell -KCMO) had been deemed “blighted” so they can fall within the statutory requirements to recieve TIF money. Oh, yeah, I’m a Brookside Gangsta Sucka — me and my homey’s like to roll in the Volvo station wagon and crash Latin American Imports after we down our 40 oz. of Chardonney. You can tell its my possee if they got little horsey’s on their shirt. Beware, I’ll bust a Discover card in yo’ass.
What a joke.
February 22nd, 2006 at 10:54 pm
If precedent can trump the plain language in one part of the Constitution, then what parts of the Constitution are safe? What confidence can we have that some other clause of the Constitution won’t fall to a well established line of jucidial precedent? Given this newly discovered power of the judiciary to interpret portions of the Constitution out of existence, where does it stop?
February 23rd, 2006 at 11:00 am
Brian,
I hate to be the bearer of bad news, but there is no newly discovered power here. This type of thing has been going on since there was a Supreme Court, and it goes on regardless of which end of the political spectrum the justices lean towards. So, unfortunately, you cannot have confidence that some other clause won’t fall to a well-established line of judicial precedent. That’s just the way the SC operates, and believe me it operates to piss off all political groups at one time or another. Them’s the breaks.