Poetic Justice for Supreme Court Justice? [Archive]

ACPlayer

06-28-2005, 11:25 PM

That's what I thought the Supreme Court decided: that the local authorities would decide.

OK, here is a chime based on my reading of the four opinions.

Background facts: Pfizer Inc decided to build a research lab in the New London area on property that it acquired elsewhere. Recognizing the unique opportunity presented by the inflow of Pfizer workers with good incomes, the New London local authorities decided to put a plan in place to revitalize the waterfront areas to attract small businesses that could support the Pfizer related jobs. In the process uplifting the New London economy, creating additional jobs, and expanding the local tax base. The project was handed to a local non-profit organization which created the waterfront project plan. The project plan requried that properties in the identified area be purchased so that the plan could be implemented. A number of the properties were purchased but the plaintiff's in the case did not want to sell.

The court found that because of the nature of the circumstances leading to the project, and the nature of the project to enhance the area for the benefit of the public in that area and the processes by which the project was designed, the city could acquire the property under the "public use" clause of the constitution.

This is not the same as saying that the local authorities have wily nily ability to take lands and hand it over to their buddies. It is saying that the consitution permits the taking if the taking is part of plan designed clearly for the benefit of the public. It does, IMO, open the door very slightly, for incompetent or corrupt officials misusing such a plan -- the remedy is to kick the bums out of office (not a bad solution really). Of course corrupt and incompetent officials can cause incalculable harm in other ways (see Bush 43!) once they are elected anyhow.

The ruling may expand the public use term to include projects that are for the public good. I am not a lawyer so cant say for sure. I am also not used to reading Supreme Court rulings so may have some or all of the above wrong.

slamdunkpro

06-28-2005, 11:49 PM

A correction base on my research.

The project was being managed by a non-profit but the land where the plaintiff’s house was located would be sold to Pfizer.

Now some opinion.

You can try and justify this any number of ways but the bottom line is that the City wanted Pfizer in there real bad, and this lady stood in their way, (and we don’t really know her side – she just may have been holding out for more $$)
The city then used “eminent domain” to squash her like a bug.

One other bit: If I were the home owner I’d be sure to find out how much the City got from Pfizer for my property. If it was more than I got I’d be right back in court.

Of course corrupt and incompetent officials can cause incalculable harm in other ways (see Clinton!) once they are elected anyhow.

I hope this guy gets his hotel!!!!!!!!

tylerdurden

06-29-2005, 12:09 AM

[ QUOTE ]
This is not the same as saying that the local authorities have wily nily ability to take lands and hand it over to their buddies. It is saying that the consitution permits the taking if the taking is part of plan designed clearly for the benefit of the public.

[/ QUOTE ]

Actually, that's EXACTLY what the ruling is saying because it's up to the local authorities to determine what is "for the benefit of the public."

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It does, IMO, open the door very slightly, for incompetent or corrupt officials misusing such a plan -- the remedy is to kick the bums out of office (not a bad solution really).

[/ QUOTE ]

Some remedy, your house is already bulldozed and there's no way you're getting that land back. This is like saying the remedy for getting mugged is to kick a cop in the nuts.

shots

06-29-2005, 12:41 AM

[ QUOTE ]
It does, IMO, open the door very slightly, for incompetent or corrupt officials misusing such a plan -- the remedy is to kick the bums out of office

[/ QUOTE ]

Actually as I've mentioned the solution is to amend state constitutions to excplicitly bar the goverernment from taking land for private use. We already have that on the books in my state.

ACPlayer

06-29-2005, 01:25 AM

That is a fine solution.

However, kicking bums out of office when they misuse their power or make wrong decisions that's what its all about.

shots

06-29-2005, 01:32 AM

Can't argue with that.

ACPlayer

06-29-2005, 01:36 AM

From Steven's decision:

[ QUOTE ]
The Fort Trumbull area is situated on a peninsula that juts into the Thames River. The area comprises approximately 115 privately owned properties, as well as the 32 acres of land formerly occupied by the naval facility (Trumbull State Park now occupies 18 of those 32 acres). The development plan encompasses seven parcels. Parcel 1 is designated for a waterfront conference hotel at the center of a "small urban village" that will include restaurants and shopping. This parcel will also have marinas for both recreational and commercial uses. A pedestrian "riverwalk" will originate here and continue down the coast, connecting the waterfront areas of the development. Parcel 2 will be the site of approximately 80 new residences organized into an urban neighborhood and linked by public walkway to the remainder of the development, including the state park. This parcel also includes space reserved for a new U. S. Coast Guard Museum. Parcel 3, which is located immediately north of the Pfizer facility, will contain at least 90,000 square feet of research and development office space. Parcel 4A is a 2.4-acre site that will be used either to support the adjacent state park, by providing parking or retail services for visitors, or to support the nearby marina. Parcel 4B will include a renovated marina, as well as the final stretch of the riverwalk. Parcels 5, 6, and 7 will provide land for office and retail space, parking, and water-dependent commercial uses. 1 App. 109-113.

[/ QUOTE ]

Note Parcel 3 is NORTH of the Pfizer area. The pfizer area is separate from the development area under question. My reading is that none of the property in question is heading for pfizer. It is also my reading that pfizer made this decision independently of the development effort and that that decision was a spark for the redevelopment efforts.

slamdunkpro

06-29-2005, 09:32 AM

Just replace "Pfizer" with "new private owner" in my last post.

tylerdurden

06-29-2005, 10:02 AM

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My reading is that none of the property in question is heading for pfizer.

[/ QUOTE ]

It doesn't really matter if the land is for "public" or "private" use. They're still taking your land. What ends up happening to it is of no interest to the victim.

ACPlayer

06-29-2005, 10:30 AM

IN some of the posts by posters (who have not read the opinion) there have been flames about this being transferred to Pfizer. Thought I'd clarify that piece of misinformation.

Your line of thought essentially means that local govt should have zero emininent domain rights. While that may be true in Russia, it is not true in America.

All we can discuss is whether this plan where the City acquired the land (via a bond) and then developed it for the good of the public and for the use of the public is a valid taking under the constitution.

I think while O'Conner raises a valid fear. This case does not set a precedent for the rampant takings that the fear mongers are using for partisan purposes.

The proposed taking of Souter's residence is not allowed by this ruling. But it is an amusing stunt.

superleeds

06-29-2005, 10:55 AM

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It doesn't really matter if the land is for "public" or "private" use. They're still taking your land.

[/ QUOTE ]

If local/federal governments did not have this ability very little 'public infrastructure' would be built. It can be argued what constitutes public or private and the rules should be watertight but some kind 'power of eminent domain' should and will always exist.

slamdunkpro

06-29-2005, 01:04 PM

This isn't about public infastructure. This is about taking land from a private individual and turning it over to another private individual (or company) "for the public good".

An argument why the decision was bad follows: I’m the government: I need you land for a new highway. I use emanate domain, pay you, tear your house down and build the highway. The odds are that will remain a highway at least in our lifetimes and the right of way stays with the government.

Now take it one step further: I’m the government: I want you land to rebuild a poor area of town. I use emanate domain, pay you, and sell your land to a private company who puts a movie theater on it. 5 years later, Supermegashopinabox Inc. (or even better Disney) decides that that Movie Theater is at the center of their new super complex or theme park They go to the owner and pay them megabucks for the land. If you had kept your happy home you’d be the one driving the Bentley instead of the Movie guy. Now tell me this was a fair decision

lehighguy

06-29-2005, 03:59 PM

I was under the believe that they were taking property from one private party and giving it to another private party.

When you take property to build a highway or a park that is public use. But if you take it and then sell it to a Starbucks so they can sell coffee to the rich Pfizer employees that is not "public use".

tylerdurden

06-29-2005, 04:31 PM

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If local/federal governments did not have this ability very little 'public infrastructure' would be built.

[/ QUOTE ]

That's a good point. Government shouldn't be building infrastructure in the first place.

natedogg

06-30-2005, 01:45 AM

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Actually, that's EXACTLY what the ruling is saying because it's up to the local authorities to determine what is "for the benefit of the public."

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That's why this ruling is such bulls---.

Do we let local officials define "free speech" or "due process" or "double jeapordy" NO!

We are talking about a constitutional right here, which states must respect. They don't have the right to say, 'hey in our state "due process" means lynching niggers'. They don't have the right to say "in our state habeous corpus means we send you to a gulag". They can't do it because they are CONSTRAINED BY THE BILL OF RIGHTS.

Also, the justices did not defer to the states on the definition of public they UPHELD the definition of "public use" as "we want more taxes". This definition can at best be charitably described as specious.

Try this. Can you think of any way for a state to LOSE an eminent domain claim now?

The ruling stinks.

Also: http://www.theagitator.com/archives/022207.php#022207

natedogg

ACPlayer

06-30-2005, 01:55 AM

I cannot tell exactly who will own the property. The city raised a bunch of money via the sale of a Bond to purchase these properties and to finance the development of the project. I expect that the rents from the property will be used to pay the bond holders their interest and principle over time (but cannot tell for sure from the Supreme Court opinions).

The area of the project will be for public use (in that the public will be shopping, working, and otherwise enjoying the waterfront area). Whether that qualifies as constitutional public use --- according the 5 justices it does and according to 4 it does not.

It is however very clear that this is not a case of a private party approaching the govt official and saying we want to acquire this property that the owner does not wish to sell can you use Eminent Domain to take the property and give it to me. THis is clearly part of a well thought out plan.

lehighguy

06-30-2005, 02:05 AM

They are taking private property from one person and giving it to another. Just because they don't specifically have anyone in mind at the time doesn't make it any better. I'm really gonna like it when someone from the town comes to my house and says:
"We are revitalizing downtown. We don't yet know exactly what we are putting where your house used to be, but I'm sure it will be better then your little hovel. Now scurry off."

ACPlayer

06-30-2005, 02:15 AM

If it is part of a "carefully considered" development plan -- then you would have to scurry off.

The constitution says so according to the best legal minds in the country.

MMMMMM

06-30-2005, 09:33 AM

The new owners of the property will be private businesses.

The majority of justices in the SCOTUS decision redefined the term "public use."

Property rites
Thomas Sowell

"You may own your own home and expect to live there the rest of your life. But keep your bags packed, because the Supreme Court of the United States has decreed that local politicians can take your property away and turn it over to someone else, just by using the magic words "public purpose."

We're not talking about the government taking your home in order to build a reservoir or a highway for the benefit of the public. The Constitution always allowed the government to take private property for "public use," provided the property owner was paid "just compensation."

What the latest Supreme Court decision does with verbal sleight-of-hand is change the Constitution's requirement of "public use" to a more expansive power to confiscate private property for whatever is called "public purpose" -- including turning that property over to some other private party.

In this case -- Kelo v. New London -- the private parties to whom the government would turn over confiscated properties include a hotel, restaurants, shops, and a pharmaceutical company.

These are not public uses, as the Constitution requires, but are said to serve "public purposes," as courts have expanded the concept beyond the language of the 5th Amendment -- reflecting those "evolving" circumstances so dear to judges who rewrite the Constitution to suit their own tastes.

No sane person has ever denied that circumstances change or that laws need to change to meet new circumstances. But that is wholly different from saying that judges are the ones to decide which laws need changing and in what way at what time.

What are legislatures for except to legislate? What is the separation of powers for except to keep legislative, executive and judicial powers separate?

When the 5 to 4 Supreme Court majority "rejected any literal requirement that condemned property be put into use for the general public" because of the "evolving needs of society," it violated the Constitutional separation of powers on which the American system of government is based.

When the Supreme Court majority referred to its "deference to legislative judgments" about the taking of property, it was as disingenuous as it was inconsistent. If Constitutional rights of individuals are to be waved aside because of "deference" to another branch of government, then the citizens may as well not have Constitutional rights.

What are these rights supposed to protect the citizens from, if not the government?

This very Court, just days before, showed no such deference to a state's law permitting the execution of murderers who were not yet 18. Such selective "deference" amounts to judicial policy-making rather than the carrying out of the law.

Surely the Justices must know that politicians whose whole careers have been built on their ability to spin words can always come up with some words that will claim that there is what they can call a "public purpose" in what they are doing.

How many private homeowners can afford to litigate such claims all the way up and down the judicial food chain? Apartment dwellers who are thrown out on the street by the bulldozers are even less able to defend themselves with litigation.

The best that can be said for the Supreme Court majority's opinion is that it follows -- and extends -- certain judicial precedents. But, as Justice Clarence Thomas said in dissent, these "misguided lines of precedent" need to be reconsidered, so as to "return to the original meaning of the Public Use Clause" in the Constitution.

Justice Sandra Day O'Connor's dissent points out that the five Justices in the majority -- Ginsburg, Breyer, Souter, Stevens, and Kennedy -- "wash out any distinction between private and public use of property." As a result, she adds: "The specter of condemnation hangs over all property. 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."

In other words, politicians can replace your home with whatever they expect will pay more taxes than you do -- and call their money grab a "public purpose."

http://www.townhall.com/columnists/thomassowell/ts20050627.shtml

slamdunkpro

06-30-2005, 09:47 AM

[ QUOTE ]
It is however very clear that this is not a case of a private party approaching the govt official and saying we want to acquire this property that the owner does not wish to sell can you use Eminent Domain to take the property and give it to me.

[/ QUOTE ]

We don't really know who initiated this deal.

tylerdurden

06-30-2005, 09:59 AM

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I cannot tell exactly who will own the property.

[/ QUOTE ]

Exactly why I said it doesn't matter if it's for public or private development. What starts out as a road project can turn into a wal-mart after they've bulldozed your house.

[ QUOTE ]
It is however very clear that this is not a case of a private party approaching the govt official and saying we want to acquire this property that the owner does not wish to sell can you use Eminent Domain to take the property and give it to me. THis is clearly part of a well thought out plan.

[/ QUOTE ]

1) It's not clear AT ALL that this is "not a case of a private party approaching the govt official and saying we want to acquire this property."

2) Why does a "well-thought-out plan" make it OK to steal my property?

3) Isn't it more likely that a "well-thought-out plan" originated in the private sector?

4) What if starbucks comes up with a "well-thought-out plan" to turn your house into coffee bar? Is that OK? Hey, it's well thought out, everyone else in your neighborhood wants a starbucks there, you can't object to that, the needs of the many out weigh the needs of the few, you can't argue with that!

tylerdurden

06-30-2005, 10:03 AM

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If it is part of a "carefully considered" development plan -- then you would have to scurry off.

The constitution says so according to the best legal minds in the country.

[/ QUOTE ]

The Supreme Court is not infalliable. The Constitution is not an axiom. Just because the government "says so" doesn't mean it's right.

tylerdurden

06-30-2005, 10:06 AM

Give an example of a private development that is NOT "carefully considered." THe private sector doesn't just dump money into a project without thinking about it. Sure there have been development flops, but they weren't just undertaken willy-nilly. Real people are risking real capital. It's not like a government development project where a bunch of bureaucrats are risking someone else's money.

Bascally, your criteria of giving free reign to "carefull considered" or "well thought out" plans gives the PRIVATE setor the greenlight to take whatever they want.

ACPlayer

06-30-2005, 10:14 AM

Well, I will take the interpretation of the constitution by Supreme Court lawyer than from a hack like Sowell.

There are many ambiguities in the constitution and the definition of public use is one. I believe these ambiguities are generally a good thing. Regardless of which side of the actual decision I come down on.

This particular decision, to me, appears to meet the test. Without even getting into whether the SC should be addressing the issue in the first place.

In other words, politicians can replace your home with whatever they expect will pay more taxes than you do -- and call their money grab a "public purpose."

Politicians can do all sorts of things to you that are constritutional that you may not like. Take the Patriot Act for example.

Kick the bums out.

ACPlayer

06-30-2005, 10:22 AM

YOu are grasping.

It does not give the private parties greenlight for anything. The private party can always propose a project, the decision to invoke eminent domain is by the elected officials. The decision by the elected official can still be challenged in court. If the public officials say the private plan has merit and the courts agree that it meets the test of a carefully crafted plan for public use, then yes your house is toast.

Elect good officials. Make sure they nominate good judges, ensure that the nomination process is sound with plenty of checks and balances (and then add a few filibusters).

Democracy at work. Enjoy it while it lasts.

tylerdurden

06-30-2005, 11:03 AM

[ QUOTE ]
It does not give the private parties greenlight for anything. The private party can always propose a project, the decision to invoke eminent domain is by the elected officials.

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What's the difference in practice?

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The decision by the elected official can still be challenged in court.

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For all practical purposes, this is not true. Sure, you can go to court, but since the SCOTUS says the local officals get to define "public use" or whatever as they see fit, you've got zero chance.

[ QUOTE ]
If the public officials say the private plan has merit and the courts agree that it meets the test of a carefully crafted plan for public use, then yes your house is toast.

Elect good officials. Make sure they nominate good judges, ensure that the nomination process is sound with plenty of checks and balances (and then add a few filibusters).

[/ QUOTE ]

So you'd rather give absolute power to a small group of people, then let them bulldoze your house, then "kick the bums out" instead of just not letting them destroy your house in the first place? Obviously, the important thing in your mind is the state's ability to dominate the citizens when the state sees fit. You are just hoping for the best with your "elect good people" strategy. I've got news for you, bud. The state is not more important than the people.

ACPlayer

06-30-2005, 11:14 AM

You are wrong. Once the state is elected the state has more power then the people for as long as the state is in power.

The key is to elect good officials and MAKE SURE THE JUDICIARY IS INDEPENDENT of political affiliations.

Sure, you can go to court, but since the SCOTUS says the local officals get to define "public use" or whatever as they see fit, you've got zero chance.

I dont read the decision as you did. Any taking can still be challenged and has plenty of chances of being reversed if the use is not "carefully considered" and is not part of plan.

Remember nothing in the SCOTUS decision prevents your town from outlawing this type of taking. This is where the decision belongs in your town. You want to be safe, elect officials who will change your local laws.

slamdunkpro

06-30-2005, 11:26 AM

BUZZZZ!

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Remember nothing in the SCOTUS decision prevents your town from outlawing this type of taking.

[/ QUOTE ]

WRONG!
It’s called a precedent, - if you challenge your town or cities ruling they can tie you up in court all the way back to the SCOTUS. Because of the SCOTUS decision you’ll lose at every appellant level and since the SCOTUS is loath to go back and revisit let alone reverse one of their previous rulings, you’d most likely lose there too if they even agreed to hear your case.

tylerdurden

06-30-2005, 12:23 PM

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You are wrong. Once the state is elected the state has more power then the people for as long as the state is in power.

[/ QUOTE ]

I said the people are more important. You're justifying government thuggery by saying that the government has power, therefore it's right for them to use that power. It's a circular argument.

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I dont read the decision as you did. Any taking can still be challenged and has plenty of chances of being reversed if the use is not "carefully considered" and is not part of plan.

[/ QUOTE ]

Show me one example of emminent domain that was not "carefully considered" and part of a plan. How does having a plan make it right? Just because nine old fogeys said so? Are you so impressed with authority that you give respect to anyone that claims it?

[ QUOTE ]
Remember nothing in the SCOTUS decision prevents your town from outlawing this type of taking. This is where the decision belongs in your town. You want to be safe, elect officials who will change your local laws.

[/ QUOTE ]

So because some local governments *might* choose to NOT abuse this decision, it's OK? Sorry about your house, you should have moved to somewhere else. Hey, everyone else in this town hates blondes and wants to take all their land. The majority has spoken, you have no right to complain, you should have elected someone who's not a thug. Wow, I feel better.

tylerdurden

06-30-2005, 12:49 PM

[ QUOTE ]
You are wrong. Once the state is elected the state has more power then the people for as long as the state is in power.

...

You want to be safe, elect officials who will change your local laws.

[/ QUOTE ]

Let's get it out in the open... do you think there should be ANY limits on government power? So far, your arguments have been along the lines of "they're in charge, too bad for you, you should have elected someone who's not a sociopath." Should the government be able to arbitrarily shoot people in the head if they have a "plan"? Hey, too bad, you elected the wrong guy. Here's the bill for the bullet, too.

Does the government have carte blanche to do whatever it wants just by virtue of being elected? You seem to see the Constitution as a nusiance at best and as a warrant authorizing absolute power at worst. The constitution was intended explicitly to limit governmnet power, which you seem to think is an unworthy pursuit.

ACPlayer

06-30-2005, 11:04 PM

do you think there should be ANY limits on government power?

Yes. Plenty.

So far, your arguments have been along the lines of "they're in charge, too bad for you, you should have elected someone who's not a sociopath." Should the government be able to arbitrarily shoot people in the head if they have a "plan"?

That is what you want to hear. You are making emotion driven statements and sounding like a nut.

Does the government have carte blanche to do whatever it wants just by virtue of being elected?

No.

You seem to see the Constitution as a nusiance at best and as a warrant authorizing absolute power at wors

Hardly. The constitution is all important. However, I realize that the words are vague at best and subject to interpretation.

If you cannot understand that your rights have not really been diminished by this decision you are not thinking straight. Your rights are exactly the same as they were yesterday in this regard.

Like I said before, this decision appears to be a reasonable one. If it had gone the other way, would I be worked up about it -- No. I do however realize that a) the weakness in democracy is that the elected official has a lot of power during his term b) these decisions are best made by the local government and c) local government needs leeway to provide for the greater good (that is after all why we vote for them) and sometimes people get hurt and d) we need a good independent judiciary.

If you really think that a local government can take Souters house for a hotel project the you seem to have fallen for the line of the fear mongers with political agendas that say everybodies house is now threatened. That is hogwash and this decision does not in anyway appear to say that.

Anyway, II dont think you can see straight on this. So, you are on your own.

tylerdurden

07-01-2005, 12:38 AM

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That is what you want to hear. You are making emotion driven statements and sounding like a nut.

[/ QUOTE ]

You are the one that is hearing what he wants to hear. You're adding emotion where there is none, and doing so in an attempt to discredit me.

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The constitution is all important.

[/ QUOTE ]

Wrong. The constitution is just a piece of paper. It doesn't have any magic power that grants rights to you. It does limit the power of government, though it does not limit or grant rights to the people. You seem to think it's OK for the government to ignore the restrictions placed on it, though, which means you think the constitution isn't important. You say that you support limits on government power, but your arguments give away your true feelings.

[ QUOTE ]
If you cannot understand that your rights have not really been diminished by this decision you are not thinking straight.

[/ QUOTE ]

First of all, where did I make that statement? The government has already been stealing from the people before this decision, and they will continue to after it. The problem with this decision is that the SCOTUS has lowered the bar and made it easier to abuse the emminent domain power, one that is illegitimate to begin with.

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Your rights are exactly the same as they were yesterday in this regard.

[/ QUOTE ]

This is correct, because the SCOTUS does not determine what my rights are. The government may now violate my rights more than they did before.

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b) these decisions are best made by the local government

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All decisions at the tactical level are better made by local government (than by the federal government). That doesn't mean that this power is one that the local government should have, or that those local governments should get greater leeway in using it than they had before.

[ QUOTE ]
c) local government needs leeway to provide for the greater good (that is after all why we vote for them) and sometimes people get hurt

[/ QUOTE ]

You keep saying this as if it were an axiom. it's not. Government needs restriction, not leeway.

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If you really think that a local government can take Souters house for a hotel project the you seem to have fallen for the line of the fear mongers with political agendas that say everybodies house is now threatened.

[/ QUOTE ]

Why couldn't they? If there is a "carefully considered" plan and it will generate more tax revenue than a residence, what's going to stop them? Good conscience? That seems to be the only speed bump.

Stop with the condescending red herrings and give us some specifics.

ACPlayer

07-01-2005, 01:35 AM

Here is a thought experiment for you.

First put aside your emotion about losing your home to a runaway legislature.

Now consider that you are a judge at the state level in New Hanpshire. A Mr Souter has come before you appealing the taking of his house for a hotel. The city is citing Kelo. You ask for a "carefully considered" development plan as called for by Kelo and are given a statement showing that the hotel will generate additional property taxes to the tune of whatever.

Now as the judge you compare the scope and background of the plan in Kelo vs this plan. Do you really think you would rule for the City citing Kelo?

Now, I am not interested in your answer (unless you are a lawyer), but you should consider it carefully.

As a lay person trying to evaluate this, I believe that a judge would consider the Souter taking not covered by Kelo and would rule for the plaintiff and I believe, based on reading the decisions in Kelo, that THIS suprement court would agree with this.

tylerdurden

07-01-2005, 01:53 AM

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As a lay person trying to evaluate this, I believe that a judge would consider the Souter taking not covered by Kelo and would rule for the plaintiff and I believe, based on reading the decisions in Kelo, that THIS suprement court would agree with this.

[/ QUOTE ]

There's the difference between you and me. You are putting your faith in the government not to screw you over, whereas I would prefer not to give them the option to begin with. Sorry, the "belief" that the current authorities won't do it doesn't guarantee that they (or the next ones) won't. I'm pretty sure the people in Ohio who are getting booted "believed" that some sane person somewhere along the line would stop this and they'd never actually be out on the street, but you can see how much that belief helped them now.

ACPlayer

07-01-2005, 02:01 AM

ou are putting your faith in the government not to screw you over, whereas I would prefer not to give them the option to begin with.

Well, then start working to change the laws in your local community and electing officials who will do so. The ruling from the SC does not stop this.

I'm pretty sure the people in Ohio who are getting booted

Who are you talking about here?

Meanwhile I hope you are considering the thought experiment I offered, rereading Kelo, etc.

MMMMMM

07-01-2005, 07:26 AM

ACPlayer, I suggest you read the dissenting opinions of the four justices in Kelo--and consider those dissents, and the possibility that perhaps they rather than the other five justices may have been correct.

Seriously, I think you should read and ponder the dissents.

tylerdurden

07-01-2005, 09:59 AM

[ QUOTE ]
ou are putting your faith in the government not to screw you over, whereas I would prefer not to give them the option to begin with.

Well, then start working to change the laws in your local community and electing officials who will do so. The ruling from the SC does not stop this.

[/ QUOTE ]

Again with the reactive measures. "if you don't like it, kick the bums out of office" is a intellectually weak and lazy answer. Don't take action until power is abused? You keep avoiding the fact that government shouldn't have the power in the first place!

Kicking someone out of office isn't going to unbulldoze anyone's house. It's not a remedy.

[ QUOTE ]
I'm pretty sure the people in Ohio who are getting booted

Who are you talking about here?

[/ QUOTE ]

Mental slip, you know who I'm talking about.

etgryphon

07-01-2005, 10:40 AM

There are two big issues at hand here in the Supreme Court's ruling:

1) Can the "Public Use" Clause of the 5th Amendment be expanded to include "Public Purpose" or "Public Function" with due diligence (Read: Plan) which would include private redevelopment that would include shopping malls, hotels, restaurants and so forth which will increase the tax base and create new jobs.

2) Who should decide this application of "Public Use" Clause?

The Supreme Court's majority ruled that Issue #1 from above IS SUPPORTED in the Constitution. This is in my opinion is one of the WORST rulings that the Supreme Court has ever done basis on the "stare decisis" (http://www.lectlaw.com/def2/s065.htm) principle which is one of the most powerful principles in law. We have a law of precedents and this is a very bad ruling because of the "stare decises" on ruling on the 14th amendment that has been percieved to give the Federal jurisdiction over State matters. (Thank you - Marshall Court - I hope Jefferson beats the crap out of you in the afterlife) and the Commerce Clause's "stare decisis" ruling that give Federal Jurisdiction over Commerce Matters interstate and now intrastate (See Medical Pot Ruling). So now the Court majority's interpretation has FAR REACHING jurisdiction. Now, it is perceiveable that the Federal Government can seize property as long as they do "due diligence" and have a "well thought out" plan for how they exercise "eminent domain" that would include this new definition of "Public use" to include the "Public purpose" definition. This is what O'Connor and the other justices where dissenting. And we all should!

Now for the "Silver Lining" of the ruling:

The Majority held that in Issue #2: It was not the Courts place to rule *in this particular* instance because the local government, which is accountable to the local population, is the only one that can rule whether they did "due diligence" in formulating the plan to enact "eminent domain" which includes the "Public purpose" or "Public function" redefinition (See Issue #1 above). This is GOOD because the court is moving in a FEDERALIST direction. This should be encouraged by the courts and the citizens. Most if not ALL of the justices agree on this point.

In the particular case of the developer trying to build the hotel on Justice Souters land. All the developer needs to do is write an complete area renewal plan and submit it to the zoning council and get 3 of the 5 members to agree and *WHAM* County raises the appropriate funds which can be bonds that the developer buys and then the County will sell the land to the developer and he builds it accoording the area renewal plan that he wrote.

I hope this clears things up a bit. We should ALL FIGHT this ruling because your home is no longer your castle and they have dismantled the safety of the 5th amendment. Very rarely does any ruling of the court effect EVERYONE in the US. This is one of those cases.

-Gryph

ACPlayer

07-01-2005, 10:41 AM

It is hardly reactive. Of course you cannot unbulldoze a house and frankly I am not concerned with the remedy to the individual. The question is was the majority decision a reasoable reading of the constitution and what is the remedy a community can have to avoid this problem, further the question is whether this issue should be decided by the Supreme Court or whether it should be decided by the local community.

What you guys dont seem to get is that it is possible for a supreme court decision to be a reasonable interpretation of the constitution and the result not be good public policy or not be a proper use of legislative power.

I have not said that the New London governments decision to seize the house is a good decision -- it may or may not be. I have said that the Supreme Court appears to have made a decision that is a reasonable interpretation of the constitution.

This is a nuanced position.

ACPlayer

07-01-2005, 10:42 AM

I have.

ACPlayer

07-01-2005, 10:49 AM

You keep avoiding the fact that government shouldn't have the power in the first place!

If you are saying that we should remove eminent domain powers from the government. Then I see where you are coming from and that is a reasonable position, which I may support.

As long as govt has eminent domain powers, this decision appears reasonable.

MMMMMM

07-01-2005, 10:55 AM

Changing the meaning of the phrase from "for public use" to "for a public purpose" is not reasonable in my view. It is redefining the Constitution to fit an agenda.

Even Andy Fox agrees that the five justices misinterpreted the phrase "public use". Actually, they re-invented it as something different.

slamdunkpro

07-01-2005, 11:00 AM

[ QUOTE ]
Thank you - Marshall Court - I hope Jefferson beats the crap out of you in the afterlife)

[/ QUOTE ]

LMAO! One of the best lines in this forum in months!

ACPlayer

07-01-2005, 11:01 AM

[ QUOTE ]
We should ALL FIGHT this ruling

[/ QUOTE ]

I have no quibble with fighting it.

The question that your post still does not answer is whether the decision is a reasonable interpretation of public use. Your only argument appears to be that the decision sets a precedent the public policy results of which you dont like.

I submit that if the Supreme Court had taken away New London's capacity to implement public policy decision with regards to what is good use of eminent domain that would be an activist decision. Where the supreme court was overriding the local populace's desires in an unreasonable manner.

slamdunkpro

07-01-2005, 11:07 AM

[ QUOTE ]
As long as govt has eminent domain powers, this decision appears reasonable.

[/ QUOTE ]

This view reminds me of a story a friend of mine’s mother told me . She survived Warsaw through WWII (but lost her husband)

The Nazis were hauling all the Jews out of her apartment building and the non-Jewish poles were just standing and watching. One of the Jews looked at them, asked for help since they outnumbered the soldiers 20 to 1. He was rebuffed with “they only want you, not us” His answer was “But what will you do when they come for you?”

The next day they did.

etgryphon

07-01-2005, 11:13 AM

[ QUOTE ]
[ QUOTE ]
We should ALL FIGHT this ruling

[/ QUOTE ]

I have no quibble with fighting it.

The question that your post still does not answer is whether the decision is a reasonable interpretation of public use. Your only argument appears to be that the decision sets a precedent the public policy results of which you dont like.

I submit that if the Supreme Court had taken away New London's capacity to implement public policy decision with regards to what is good use of eminent domain that would be an activist decision. Where the supreme court was overriding the local populace's desires in an unreasonable manner.

[/ QUOTE ]

I see your point...It gets back to the whole "living" or "dead" Constitution and the whole "originalist" or "interpretive" understanding of the Constitution.

As a proponent of the "Dead" constitution and "originalist" mindset, this is one of the worst ruling in judicial history.

If you are of the "living" Constitutional mindset, I can see this as a reasonable ruling...

It is up to you which type of country you want to live in. I don't think that you can argue that the original framers meant for this interpretation or else they wouldn't have included the "public use" clause and I don't think anyone can rationally argue that the framers wanted the Constitution to change as a part of a interpretation rather than a process.

If you want "Public purpose" to be in the Constitution, make an amendment! Don't make up something along the way based on five people. That smacks democracy in the face. That is a totalitarian regime ruling...

They need to be impeached for this...

-Gryph

ACPlayer

07-01-2005, 11:21 AM

Go here and scroll down to public use (http://dictionary.reference.com/search?q=use)

If you simply read the fifth amendment it is not even clear that the government has to give a reason all it has to offer is just compensation. .

Anyone know if the courts have ever denied a taking by a local or federal governement?

Text of fifth amendment:
[ QUOTE ]
No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.

[/ QUOTE ]

ACPlayer

07-01-2005, 11:24 AM

So, do you think the government shouldhave no eminent domain power.

You realize that this is not the framers intended.

etgryphon

07-01-2005, 11:32 AM

[ QUOTE ]

If you simply read the fifth amendment it is not even clear that the government has to give a reason all it has to offer is just compensation. .

[/ QUOTE ]

Yes they do accourding to Wright v. United States principle applied to Hawaii Housing Authority v. Midkiff, and Old Dominion Land Co. v. United States

[ QUOTE ]

Anyone know if the courts have ever denied a taking by a local or federal governement?

[/ QUOTE ]

Yes.
Monongahela Nav. Co. v. United States
Armstrong v. United States

I believe.

The ruling of Wright v. United States should be your mainstay in reading the 5th Amendment or the whole Constitution for that matter.

-Gryph

ACPlayer

07-01-2005, 11:47 AM

Are there any ancilliary writings or letters on eminent domain by the founders?

I will peruse the referenced opinions.

coffeecrazy1

07-01-2005, 11:50 AM

What frightens me most about the implications of this ruling is the scenarios of enforcement that play out in my head:

1)Home is designated under Kelo for destruction. Homeowner moves out, accepts "just compensation," which, more than likely, will be the tax-appraised value of the home, rather than the market value(the MV is higher).

2)Home is designated under Kelo for destruction. Homeowner refuses to move or sell. Law enforcement officials forcibly evict homeowner, and probably place said homeowner under arrest, despite homeowner having committed no crime.

3)Home is designated under Kelo for destruction. Homeowner refuses to move or sell. Law enforcement officials move to enforce eviction notice, only to be met with threats and violence. Homeowner is shot and killed in the course of law enforcement defending themselves.

4)Home is designated under Kelo for destruction. Homeowner refuses to move or sell. Law enforcement officials move to enforce eviction notice, only to be met by threats and violence. Several law enforcement officials are wounded or killed. Homeowner is shot and killed in the course of law enforcement officials defending themselves.

Obviously, the four options above represent gradually more extreme scenarios. Honestly, though, if I were a homeowner, I cannot see myself stopping short of option 3...I feel that strongly about property rights. I am not advocating anarchy. What I am saying is that this decision is so horrendous not only because it seems to shred the meaning of the Public Use Clause(to say nothing of Search and Seizure...maybe Gryph can help on that one), but also because it puts the lives of law-abiding citizens and law enforcement officials at risk.

I know that some will see this post and think I am being overly dramatic. I don't know...maybe it's a Texan thing...but I know several people I can think of who would react the same way I would.

etgryphon

07-01-2005, 11:53 AM

[ QUOTE ]

Are there any ancilliary writings or letters on eminent domain by the founders?

[/ QUOTE ]

I'll try to find some...

-Gryph

tylerdurden

07-01-2005, 12:17 PM

[ QUOTE ]
[ QUOTE ]
We should ALL FIGHT this ruling

[/ QUOTE ]

I have no quibble with fighting it.

The question that your post still does not answer is whether the decision is a reasonable interpretation of public use.

[/ QUOTE ]

Everyone that has an opionion about this case EXCEPT for you and five supreme court justices clearly thinks this is NOT a reasonable interpretation of the 5th amendment. Have you not noticed this?

etgryphon

07-01-2005, 12:23 PM

[ QUOTE ]

Everyone that has an opionion about this case EXCEPT for you and five supreme court justices clearly thinks this is NOT a reasonable interpretation of the 5th amendment. Have you not noticed this?

[/ QUOTE ]

Don't forget the New London Lawyers and the DC Mayor are already gearing up to condemn more properties.

-Gryph

ACPlayer

07-01-2005, 12:57 PM

[ QUOTE ]
Everyone that has an opionion about this case EXCEPT for you and five supreme court justices clearly thinks this is NOT a reasonable interpretation of the 5th amendment. Have you not noticed this?

[/ QUOTE ]

.. or they are keeping quiet.

Actually in all the talk against the ruling I hear two themes:

1. The fear that someone will take his or her property. A fear that is worth respecting but not directly germane.
2. public use is different from public purpose. This at least is germane. No one has demonstrated this difference.

In fact, to 6M's statement about expanding public use to public purpose and Gryph's complaint that if the intent is to change it to public purpose then amend the consitution -- I point you to O'Connor's dissent where she upholds the principles of Berman and Midkiff with the words: "Thus a public purpose was realized when the harmful use was eliminated." Clearly she recognizes that public use and public purpose are at least interrelated and consistent. T

The question now is whether a ".. a public purpose is realized ... " by the Kelo taking.

In Berman the taking was justified as part of the Police function of the government being a public use (purpose!). In Midkiff the justification was that Public purpose of preventing an oligopoly in the ownership of land and the subsequent skewing of prices -- where the govt had a public purpose in managing economic conditions in Hawaii.

Are the opponents of the majority arguing that economic development of the area being governed is not a genuine purpose of duly elected officials.

Edit: In both Berman and Midkiff the taking resulted in transfer of ownership from one private entity to another private entity to meet a legitimate function of government.

MMMMMM

07-01-2005, 01:13 PM

Why can't you see that "for public use" is not the same as: "something that may indirectly benefit the public"?

(excerpt)"What the latest Supreme Court decision does with verbal sleight-of-hand is change the Constitution's requirement of "public use" to a more expansive power to confiscate private property for whatever is called "public purpose" -- including turning that property over to some other private party.

In this case -- Kelo v. New London -- the private parties to whom the government would turn over confiscated properties include a hotel, restaurants, shops, and a pharmaceutical company.

These are not public uses, as the Constitution requires, but are said to serve "public purposes," as courts have expanded the concept beyond the language of the 5th Amendment -- reflecting those "evolving" circumstances so dear to judges who rewrite the Constitution to suit their own tastes.

No sane person has ever denied that circumstances change or that laws need to change to meet new circumstances. But that is wholly different from saying that judges are the ones to decide which laws need changing and in what way at what time.

What are legislatures for except to legislate? What is the separation of powers for except to keep legislative, executive and judicial powers separate?

When the 5 to 4 Supreme Court majority "rejected any literal requirement that condemned property be put into use for the general public" because of the "evolving needs of society," it violated the Constitutional separation of powers on which the American system of government is based."(end excerpt)

http://www.townhall.com/columnists/thomassowell/ts20050627.shtml

This decision effectively removes any meaningful distinction between public use and private use.

ACPlayer

07-01-2005, 01:17 PM

Did you miss my quote from O'Connor's dissent regarding public use/public purpose.

Here it is again:

"Thus a public purpose was realized when the harmful use was eliminated."

She made this comment while upholding the public use/purpose of the Berman and Midkiff takings.

etgryphon

07-01-2005, 01:23 PM

[ QUOTE ]
In fact, to 6M's statement about expanding public use to public purpose and Gryph's complaint that if the intent is to change it to public purpose then amend the consitution -- I point you to O'Connor's dissent where she upholds the principles of Berman and Midkiff with the words: "Thus a public purpose was realized when the harmful use was eliminated." Clearly she recognizes that public use and public purpose are at least interrelated and consistent.

[/ QUOTE ]

Well, this gets to the heart of the definition. "Public purpose" can include "Public use" and not the otherway around. Another way of saying it is "Public Use" is a subset of "Public Purpose". With the Courts ruling, they made the two mean the same thing which is not the case. If O'Conner believed that New London was using "Public Purpose" as a valid definition of "Public Use", she wouldn't have dissented. So she must believe that they were not holding onto the correct definition.

[ QUOTE ]

The question now is whether a ".. a public purpose is realized ... " by the Kelo taking.

[/ QUOTE ]

Not really. It is whether the clear "Public purpose" and "due process" of the Kelo taking is extended by the "Public use" clause of 5th amendment.

[ QUOTE ]

In Berman the taking was justified as part of the Police function of the government being a public use (purpose!).

[/ QUOTE ]

The police function is for public use which is not the same thing. Again see my note above on the fact that "Public use" is a subset of "Public purpose". The police are funded by the public and given access by the public and created and maintained by the public. At no point is the police power in private hands. You can not say the samething for the Kelo case. Because the ultimate end of the property is private ownership.

[ QUOTE ]

In Midkiff the justification was that Public purpose of preventing an oligopoly in the ownership of land and the subsequent skewing of prices -- where the govt had a public purpose in managing economic conditions in Hawaii.

[/ QUOTE ]

The Hawaii case is one that I am not sure that I agree with either. None the less, the ruling was because the vast private ownership by a "few" was harming the public at large. This is not the case in New London. The town was not at the mercy of a few landowners who can and have dominated the market to the detriment of public at large. It was the complete opposite. Just as the "Anti-Trust" rulings broke up Standard Oil at the turn of the century because the "few private owners" were in such control of the market that they could skew the market in such a way to violate a free market economy and infringe on the public-at-large.

[ QUOTE ]

Are the opponents of the majority arguing that economic development of the area being governed is not a genuine purpose of duly elected officials.

[/ QUOTE ]

No. They are granted this privilege by zoning laws and economic encouragement and managing blighted or "unsafe" areas which is not the case in New London. The governments rule over property ALWAYS has stopped at my front door and that is the SPECIFIC purpose of the 5th Amendment.

-Gryph

MMMMMM

07-01-2005, 01:44 PM

That does not imply an equivalence between a public use, and a private use which may indirectly benefit the public.

Are "use" and "purpose" synonyms? No? Well then "public use" and "public purpose" are not synonymous either.

Are "use" and "purpose" even close to being synonyms? No? Well then neither are "public use" and "public purpose" close to being synonymous.

ACPlayer

07-02-2005, 12:11 AM

Perhaps you need to take this up with Ms O'Connor.

ACPlayer

07-02-2005, 12:27 AM

But as Justice O'Connor points out, both Berman and Midkiff were takings for a Public Purpose. The former being a police function and the latter an economic purpose.

If she is correct in her undestanding then the Supreme Court has for some time held the view that a taking for a valid publci purpose is valid and that for practical purposes the two are equivalent. It has also held the view that takings that include transfer from private to other private entities is valid.

She clearly did not believe that New London was using "Public Purpose" but her writing also implies that if she had found the facts of the case to meet her test of public purpose then the taking would have been consititutional. So, from here writing it is clear that she is not dissenting from the others because she finds that the case did not meet her test of public purpose. She however found that the public interest may actually be harmed by the taking as it may mean that the well heeled can use the this process to harm the less connected (a very valid concern, from a public policy perspective, I might add). Five other justices found that the case rose to the level of Public Purpose, as the New London govt went about its duly elected work. Perhaps a slightly different New London "plan" or "purpose" or "use" would have met Justive O'Connor's test.

[ QUOTE ]
No. They are granted this privilege by zoning laws and economic encouragement and managing blighted or "unsafe" areas which is not the case in New London.

[/ QUOTE ]

I did not follow what you are saying here. Are you saying the it is NOT a genuine function of a local government to encourage economic activity. In the case of New London to try and try and revitalize the area so that its citizens could enjoy greater economic prosperity. To me this is clearly a function of the government (When I lived in Pittsburgh, then Mayor Caliguri helped engineer a turnaround of the city a much needed task there in the early 80s, in NY Guiliani engineered a turnaround in the Times Square area, etc). This taking was clearly in support of this government function for the benefit of its citizenry and in addition would provide a new public area for the use of the populace.

coffeecrazy1

07-02-2005, 12:37 AM

Yeah...but then you get into the notion of what constitutes "blight." Is one house a blight, where others are not? Is an entire neighborhood a blight, or just parts. This movement of eminent domain, while having a very innocent sound, actually has rather dire ideas behind it, anyway.

With eminent domain for infrastructure, the need is fairly easy to understand...citizens need roads to move more efficiently around the locale, etc...but blight is something else...something far more vague.

It's the vagueness that causes so much disturbance in some of our minds...because that same legal vagueness is how dictators slip through the loopholes into power. In terms of the framers' intent, I think that this was ever-present on their minds, given the tenor of the Declaration of Independence, and the precision of the language of the Constitution.

MMMMMM

07-02-2005, 12:40 AM

ACPLayer, you AND certain judges need to learn how to read.

"Use" does not equal "purpose". End of story--except for those whose desire is to subvert the Constitution.

ACPlayer

07-02-2005, 01:18 AM

Instead of repeating this mantra, how about addressing the point about the usage iof Public Purpose that Justice O'connor makes in her dissent when upholding Berman and Hawaii.

Are you saying that she does not know how to read?

MMMMMM

07-02-2005, 01:36 AM

You have stated that O/Connor said those takings were for a "public purpose".

I'm not arguing that she didn't. I'm saying "use" does not equal "purpose". etgryphon explained this to you in terms of sets and subsets, and I suggest that that is the only proper way to look at it. One is the subset of the other and therefore they are not synonymous.

ACPlayer

07-02-2005, 01:55 AM

So, if Berman and Hawaii takings were for a public purpose, at a minimum you must concede that this ruling does not expand on the interpretation of the constitution. It is consistent with the interpretation of the constitution in Berman and Hawaii, subject to whether the particular facts in Kelo meet the test of a Public Purpose(Use). The majority opinion actually lays out a series of considerations against which a future taking could be considered (and the Souter taking would not qualify) -- this is specially true when you read the Kennedy filing.

Having read the Hawaii decision, I think that is a far worse decision then this one. Not only was the taking to transfer the property to another party and for the benefit of the other party, the recipients were identified, and the proposed benefits more illusory.

I suggest that you ensure that your mountain cabin be located where the local govts have passed eminent domain laws that alleviate your fears.

This does not make me fearful in anyway. Nor particularly outraged.

etgryphon

07-02-2005, 08:08 AM

I don't think that you can really include the Berman case in the "Public Purpose" debate. The Berman case includes a public entity (namely the Police) which is clearly and element of the public-at-large which makes it a more reasonable ruling in the "Public Use".

The Hawaii Decision is a VERY slippery slope and to a strict adherence to the orginality of the Constitution, it would not past muster. BUT, it does make sense in light of "Anti-Trust" laws which is a much better filter to look at the case through. And in that case, the ability of a few private citizens who are able to actively "harm" the rights of the public-at-large is a much more understandable ruling. I still think that I disagree with the Hawaii ruling, but it is clearly a "dispersal" event rather than a "consolidation" even.

O'Connors dissent to the Kelo ruling is that the only reasons that the private citizens home where taken is that some else came in and said "I can use their land better" and then the govt. says "OK" THAT is the reason why she dissented because that is clearly not what the framers of the Constitution meant by "Public Use". The Hawaii ruling weakened the Constitution. This ruling clearly BREAKS it!.

-Gryph

MMMMMM

07-02-2005, 09:41 AM

So...you think the Hawaii decision was a clearly worse decision, yet you are arguing it should be used a precedent, and that therefore the Kelo decision is OK?

If I lived inside your head I would be confused. Very, very confused.

ACPlayer

07-02-2005, 11:56 AM

If you read the majority opinion you find:

It reaffirms that A purely private taking could not withstand the scrutiny of the public use requirement; it would serve no legitimate purpose of government and would thus be void

it also states: Nor would the City be allowed to take property under the mere pretext of a public purpose, when its actual purpose was to bestow a private benefit.

It restates the century old interpretation as: Accordingly, when this Court began applying the Fifth Amendment to the States at the close of the 19th century, it embraced the broader and more natural interpretation of public use as "public purpose." See, e.g., Fallbrook Irrigation Dist. v. Bradley, 164 U. S. 112, 158-164 (1896).

and Kennedy summarizes it accurately with:
This is not the occasion for conjecture as to what sort of cases might justify a more demanding standard, but it is appropriate to underscore aspects of the instant case that convince me no departure from Berman and Midkiff is appropriate here. This taking occurred in the context of a comprehensive development plan meant to address a serious city-wide depression, and the projected economic benefits of the project cannot be characterized as de minimus. The identity of most of the private beneficiaries were unknown at the time the city formulated its plans. The city complied with elaborate procedural requirements that facilitate review of the record and inquiry into the city's purposes. In sum, while there may be categories of cases in which the transfers are so suspicious, or the procedures employed so prone to abuse, or the purported benefits are so trivial or implausible, that courts should presume an impermissible private purpose, no such circumstances are present in this case.

Clearly the court acted within the precedent, the established interpretation of the constitution and a thorough review of the particulars of the case (the findings of the lower courts and the investigations of the lower courts being the documents they rely on) and issued the ruling within the fact that this was in fact a valid public purpose.

ACPlayer

07-02-2005, 12:06 PM

The Hawaii case is part of the background under which the court has been interpreting the public use clause. It is possible for the more intelligent to accept that the public use clause was applied to both the cases and disagree on the outcome based on their interpretation of the facts of the case and not on their particular ideological tendencies (as you seem to do).

Your mantra of public use not being public purpose under the fifth amendment has been held to be invalid for at least a hundred years.

Note that ideologically, I am opposed to favoring big biz interests over individual interests (not exactly what liberals want). I am also aware that big biz may try to use this to furhter their interests at the expense of the individual. However, I can put aside my ideology to try and understand the decision.

Understanding and living with nuances requires great mental acuity. It is living on the edge.

MMMMMM

07-02-2005, 12:36 PM

[ QUOTE ]
Your mantra of public use not being public purpose under the fifth amendment has been held to be invalid for at least a hundred years.

[/ QUOTE ]

That is a craven view (to say the least) even if it first appeared 100 years ago--and an affront to the very principles upon which our country was founded.

If synonymizing "public use" and "public purpose" dates back to a court decision 100 years old, I would not think it a bad thing if those responsibe for that court decision were to be exhumed, tarred and feathered, ridden out of town on rails, and hanged at the crack of dawn the next morning--before being properly buried once again with stakes of holly through their hearts.

ACPlayer

07-02-2005, 11:39 PM

.... emotionalism run rampant.

etgryphon

07-04-2005, 07:49 AM

Can you give me a link to the bradley case.

Thanks.

-Gryph

ACPlayer

07-04-2005, 11:04 AM

Bradley (http://caselaw.lp.findlaw.com/cgi-bin/getcase.pl?court=us&vol=164&invol=112)

The opinion makes for very interesting reading and in my mind supports the interpretation of the majority in Kelo.

Two specific quotes of interest:

There is no specific prohibition in the federal constitution which acts upon the states in regard to their taking private property for any but a public use. The fifth amendment, which provides, among other things, that such property shall not be taken for public use without just compensation, applies only to the federal government, as has many times been decided. Spies v. Illinois, 123 U.S. 313 , 8 Sup. Ct. 21; Thorington v. Montgomery, 147 U.S. 490 , 13 Sup. Ct. 394. In the fourteenth amendment the provision regarding the taking of private property is omitted, and the prohibition against the state is confined to its depriving any person of life, liberty, or property without due process of law.

It is obvious, however, that what is a public use frequently [164 U.S. 112, 160] and largely depends upon the facts and circumstances surrounding the particular subject-matter in regard to which the character of the use is questioned.

As a lay person, I can say that the second quote pretty much accurately describes why I think the Kelo taking was reasonable. The second quote also validates the statement that the proposed Souter "taking" would not meet the test, regardless of the plan offered as the taking's purpose was to try and make a political point (even if the taking increased the tax base of the local community).

Also given that the CT legislature has specifically said that property can be taken for economic development, then the Federal taking issue should simply not apply. The first quote backs up that issue. I think ElwoodBlues pointed that out way back.

lehighguy

07-04-2005, 11:11 AM

I'm not sure how the second quote makes taking Souter's house any different from taking someone elses.

ACPlayer

07-04-2005, 11:16 AM

The second quote says that it depends on the facts of the case.

THe facts of the Souter taking, includes for example, that the proposal was made in response to Souter's decision in this case. That would make the increased taxes a pretext and the majority in Kelo (backed by the Bradley) case have made it clear that a tax increase as a pretext for other motives is not sufficient to allow the taking.

lehighguy

07-04-2005, 11:22 AM

Isn't increasing the tax base/commerece and employment the reasoning in the Kelo case.

ACPlayer

07-04-2005, 11:28 AM

Increased taxes by itself is not enough.

Have you read the cases or just listened to the political hacks that pass for analysts on Fox?

Here is my summary again (which is quite accurate):

THe facts of the Souter taking, includes for example, that the proposal was made in response to Souter's decision in this case. That would make the increased taxes a pretext and the majority in Kelo (backed by the Bradley) case have made it clear that a tax increase as a pretext for other motives is not sufficient to allow the taking.

lehighguy

07-04-2005, 12:03 PM

It was part of an economic revitilization scheme. In addition to increasing the tax base it would increase economic developement and employment.

However, the same could be said for the hotel. The hotel would employ more people then souter's house would. It would provide more economic benefit to the community. If it was really successful other business's might open up to cater to the hotels visitors: cafes, museums, bookstores.

ACPlayer

07-04-2005, 12:42 PM

If you read the opinions it specifically says that if a taking can be shown to have some doubts about the underlying motivation, a pretextual case built around economic development is not enough.

In the Souter case, I would predict an 8-0 vote against the city -- while upholding Kelo.

lehighguy

07-04-2005, 03:11 PM

Read the dissent. The underyling motivation arguement makes absolutely no sense.

ACPlayer

07-04-2005, 11:02 PM

OK. So have you accepted that the majority has said that the actual facts of the taking and the motivation are the basis that they made for this ruling. And that based on the majority opinion the Souter taking would not be accepted by this same court?

Note, I am not asking whether the minority agree or disagree with the majority (which of course we know they disagree) I am asking whether you have understood the application of the majority opinion on the Souter taking.

lehighguy

07-05-2005, 08:00 AM

I disagree with your assertion that the majorities opinion, especially the "motivation" clause, makes any logical or practicle sense. As the dissenters point out in their arguement the "motivation" clause doesn't function as an effective limitation on eminient domain nor is it even relevent when viewed in the context of constitutional restrictions on eminient domain.

The conclusion you come to after examining the ruling is that there are essentially no effective limits on eminient domain powers. I will post exact passages from the dissent arugeing this later today or tommorrow when I get the time.

ACPlayer

07-05-2005, 10:20 AM

Just a reminder that what we are looking for is argument why the majority opinion could result in your house being taken with a plan that is a pretext for the taking. The Souter taking is a good example as it is a pretext. So the assignment is to create a plan that rises to the type of plan that the majority has allowed.

tylerdurden

07-05-2005, 10:49 AM

[ QUOTE ]
Just a reminder that what we are looking for is argument why the majority opinion could result in your house being taken with a plan that is a pretext for the taking. The Souter taking is a good example as it is a pretext. So the assignment is to create a plan that rises to the type of plan that the majority has allowed.

[/ QUOTE ]

You continue to move the target and argue in circles. You're now basically saying that the new expanded emminent domain can't be abused because the ruling says it can't be abused. Local governments will be able to spin any taking into a conforming "pretext" with very little difficulty.

If you really think this ruling hasn't expanded government power any, how can you explain the flood of emminent domain activity since the Kelo ruling, in which many local governments are specifically siting Kelo, saying that without the Kelo ruling they wouldn't be able to proceed??

http://www.ij.org/private_property/connecticut/6_29_05pr.html

[ QUOTE ]
Ronald M. Kreitner, executive director of Westside Renaissance, Inc., a private organization coordinating the project with the city’s development corporation, told the Baltimore Sun, “If there was any hesitation because of the Supreme Court case, any question is removed, and we should expect to see things proceeding in a timely fashion.”

[/ QUOTE ]

[ QUOTE ]
BDC Executive Vice President Andrew B. Frank told the Daily Record the Kelo decision “is very good news. It means many of the projects on which we’ve been working for the last several years can continue.”

[/ QUOTE ]

[ QUOTE ]
Officials told the Associated Press that the Mulberry Street project could have been killed if the U.S. Supreme Court had sided with the homeowners in Kelo.

[/ QUOTE ]

[ QUOTE ]
Lodi Mayor Gary Paparozzi called the Kelo ruling a “shot in the arm” for the town. He told the Bergen County Record, “The trailer park is like a poster child for redevelopment. That’s the best-case scenario for using eminent domain.”

[/ QUOTE ]

ACPlayer

07-05-2005, 11:00 AM

I said in an earlier post that big biz will use this ruling to try and force individuals to sell the properties. I realize this.

What I am saying is that not all of these will or should hold up to judicial review. I did predict a flood of takings and I predict a number of additional court cases that will help define the boundaries.

Technically it applied an existing power to a specific case in a way that had not been considered before.

etgryphon

07-05-2005, 11:51 AM

OK...After reading the Bradley Case, I remember looking in to this. It is a bit of a red herring. This was a case that was specifically based on the 14th amendment and not the 5th Amendment. In the Kelo case, the City of New London was not taking the private citizens land based off of a legislative act that would ahve made the 14th amendment applicable. They were using the specific power of the 5th amendment power of "eminent domain".

Bradley doesn't really directly addess the issue of the 5th amendment except in the quote which you have stated. And then it only goes to confirm that the 5th Amendment applies to the Federal government only and not the states respectively. The States are bound by their state constitutions first and then the 14th Amendment which is the Constitutional argument of Bradley case. The Bradleys where arguing that their right to "Due Process" were violate by the forced sale of their land to pay the irrogation assessments. It was a question of "due process" not eminent domain. The Bradley Case even confirms the true nature of "Public Use" to be just that a "Public Use". Not once was it compromised in the Bradley Descision.

Now, back to the Kelo Case. The City of New London was using the power of "eminent domain" under the auspices of "Public Use" to sieze the citizens property. The question before the SCOTUS is that in the reading of the 5th amendment does "Public Use" include any and all aspects of "Public Purpose". It was being argued under the 5th Amendment not under the 14th Amendment so the Bradley Case has less bearing on the matter.

The SCOTUS should have said part 2 of my original post that the Federal Court doesn't have the jurisdiction and can't make the decision in specific cases whether it is really for a public good. And if CT felt that in this case, their was a good reason to make the leap based on the STATES constitution, then it is their problem and the people of CT to impeach the judges who ruled that way.

But, the SCOTUS didn't stop there. They MADE a ruling in a case that they had no jurisdiction on the 5th Amendment to expand its powers which in turn makes it impact across ALL OF THE US rather than just localized to CT.

That is the problem that I and EVERYONE should have. It was a terrible ruling and they need to be impeached for it.

We need to start impeaching judge who make extra-constitutional rulings like this. Where are the checks and balences for the SCOTUS? It is in the people and the other two branches ability to IMPEACH the judge for making a mockery of the Constitution.

-Gryph

etgryphon

07-05-2005, 11:59 AM

[ QUOTE ]

Your mantra of public use not being public purpose under the fifth amendment has been held to be invalid for at least a hundred years.

[/ QUOTE ]

This has not and never been the case. The Hawaii Case is the case that started to blur the line between "Public Use" and "Public Purpose".

You can't use the Bradley Case because it is a 14th Amendment issue and not a 5th amendment issue.

-Gryph

ACPlayer

07-05-2005, 12:12 PM

How does this quote from the SCOTUS opinion fit in:

[ QUOTE ]
To effectuate this plan, the city has invoked a state statute that specifically authorizes the use of eminent domain to promote economic development.

[/ QUOTE ]

etgryphon

07-05-2005, 12:27 PM

[ QUOTE ]
How does this quote from the SCOTUS opinion fit in:

[ QUOTE ]
To effectuate this plan, the city has invoked a state statute that specifically authorizes the use of eminent domain to promote economic development.

[/ QUOTE ]

[/ QUOTE ]

I think we maybe talking in circles. That quote is fine and dandy to apply to the STATES Supreme Court NOT the nation-at-large.

SCOTUS should have stated: "Sorry this is a local matter we have no way of applying the State's eminent domain powers or a ruling on it so the local and state level ruling shoudl stand."

But, they said the above and that the FEDERAL Constitution also grants the local and States ruling to the whole of the country.

I just think if the state of CT wants to screw up their Constitution and people...I just wont live in CT. Now I live in the NATION that has been ruled this way.

So unAmerican that FIVE PEOPLE who I dont elect will stay for life and effect what the government can or can't do.

IMPEACH THEM! That is how I get my power back.

-Gryph

ACPlayer

07-05-2005, 12:27 PM

[ QUOTE ]
The SCOTUS should have said part 2 of my original post that the Federal Court doesn't have the jurisdiction and can't make the decision in specific cases whether it is really for a public good.

[/ QUOTE ]

In essence has not the decision said that the New London decision should go forward because the local authorities want it to and believe that it is in the public good. This was my lay takeaway from the case.

Here is another quote from the opinion:

[ QUOTE ]
The Court declines to second-guess the wisdom of the means the city has selected to effectuate its plan.

[/ QUOTE ]

I suspect that there are consequences of the interplay between the 5th and 14th amendments that I am missing and that may have consequences that will need to be refined in future cases.

ACPlayer

07-05-2005, 12:31 PM

[ QUOTE ]
So unAmerican that FIVE PEOPLE who I dont elect will stay for life and effect what the government can or can't do.

[/ QUOTE ]

I cant tell if you are being serious as the tone here belies the reasoned nature of the rest of your responses.

Obviously we all live with the consequences of five unelected person's decisions whether we agree with their interpretation or not.

BTW are you a lawyer or just someone who reads these cases for amusement?

etgryphon

07-05-2005, 01:16 PM

[ QUOTE ]
[ QUOTE ]
So unAmerican that FIVE PEOPLE who I dont elect will stay for life and effect what the government can or can't do.

[/ QUOTE ]

I cant tell if you are being serious as the tone here belies the reasoned nature of the rest of your responses.

[/ QUOTE ]

I only meant that as far as making legislative rulings from the bench and usurping power that has been delegated elsewhere by the Constitution. If you want to make "Public Use" mean any an all meanings of "Public Purpose" put it in the Constitution. I am just a strict constructionist. Judges can only make a rulings based on the text of the document not an interpretation of what it "should" say.

[ QUOTE ]

BTW are you a lawyer or just someone who reads these cases for amusement?

[/ QUOTE ]

I wanted to be a lawyer, but it didn't pay enough /images/graemlins/tongue.gif

So I guess you could say that I'm a highly active civilly minded voter. I find that I don't believe the Republicans and I don't believe the Democrats and I don't believe commentaries will tell me the whole story so I must read it for myself.

I belive that the Founding Fathers did a stellar job on the Consitution and I hate see it bastardized by people who don't want to go through the process. I think it is lazy and to the detriment of all the lives that were lost to create this great nation.

-Gryph

tylerdurden

07-05-2005, 08:42 PM

[ QUOTE ]
I said in an earlier post that big biz will use this ruling to try and force individuals to sell the properties. I realize this.

[/ QUOTE ]

But you disputed that this ruling expanded government power, and we now see a bunch of local officials emboldened by the decision. What else but newly expanded power would have them salivating like this? Big business isn't the problem - the local governments that bend over for big business are the problem.

ACPlayer

07-05-2005, 10:19 PM

Govts at all levels routinely "bend over" for business interests, with or without this case.

Is a clarification of a law an expansion of the rights? If we agree that it is constitutional (and I know you dont but just assume for a moment that it is) and has never been applied like this before does that mean that this application expands the power? Not in my book.

tylerdurden

07-06-2005, 12:19 AM

[ QUOTE ]
Is a clarification of a law an expansion of the rights?

[/ QUOTE ]

No, but that's not what happened in Kelo. Local officials across the country agree that they will win court battles that they would have lost before. That's CLEARLY more than just a "clairification."

ACPlayer

07-06-2005, 12:32 AM

Considering that Kelo was upheld at all the levels of the judiciary (I guess citing Berman and Hawaii) how can one conclude that they would have lost before?

Were there cases of economic development type public use takings that were denied before?

It is certainly true that local officials may be more likely to use eminent domain than they did not before.

ACPlayer

07-06-2005, 12:50 AM

There is also a rush by state officials from states that either allow eminent domain takings for economic development or that have not said anything on this subject to clarify the scope of economic development takings.

The right way to do things rather than have judicial activists (like the dissenters in Kelo) override the will of the local duly elected officials by trying to apply a federal taking restriction to state and local govts. Note that the majority, essentially, allowed the States to hang themselves or save themselves while the minority were the ones overriding state will.

I guess that Thomas was the "liberal" in this case.

natedogg

07-06-2005, 12:57 AM

[ QUOTE ]
There is also a rush by state officials from states that either allow eminent domain takings for economic development or that have not said anything on this subject to clarify the scope of economic development takings.

The right way to do things rather than have judicial activists (like the dissenters in Kelo) override the will of the local duly elected officials by trying to apply a federal taking restriction to state and local govts. Note that the majority, essentially, allowed the States to hang themselves or save themselves while the minority were the ones overriding state will.

I guess that Thomas was the "liberal" in this case.

[/ QUOTE ]

The case didn't have anything to do with states' rights, as there was never a question about should the states/cities be able to define "public use" as they see fit. The court ruled on the constitutionality of the "public use" claim in Kelo, that is all.

Your take on the case is not only incorrect, but at odds with all legal precedent on the issue of constitutionally protected rights. States don't have the option of redefining your rights away.

And the court affirmed the New London's claim that our constitutional right not to have land seized by the govt except for "public use" includes instances where the govt simply wishes to give it to someone who will pay more taxes.

natedogg

ACPlayer

07-06-2005, 01:17 AM

Are you suggesting that if a state tomorrow passed a law/amendment outlawing eminent domain use for economic development -- that law would be invalidated by the Kelo ruling. If so you have not read the ruling where the majority specifically suggest that the state officials address the matter.

natedogg

07-06-2005, 01:28 AM

[ QUOTE ]
Are you suggesting that if a state tomorrow passed a law/amendment outlawing eminent domain use for economic development -- that law would be invalidated by the Kelo ruling. If so you have not read the ruling where the majority specifically suggest that the state officials address the matter.

[/ QUOTE ]

No, I'm not suggesting that and it is a tangential issue. States may certainly *choose* not to seize, but that is irrelevant to the issue of when they *can* seize.

The court has ruled on when the states can seize, which is so expansive that it amounts to no restriction whatsoever. This is the ruling in the case and the issue at hand. NOT states rights.

The court could have ruled the other way. Either way the states are bound by the court's interpretation of the constitutional clause on "public use". It just so happens that the ruling on "public use" effectively leaves no limits on it.

So the court included a suggesting that states and local govts take it upon themselves to limit the seizings, since there are no limits anymore.

natedogg

lehighguy

07-06-2005, 02:39 AM

AC Player:
Start on page 35 with "The Court protests that is does no sanction the bare transfer to A from B for B's benefit." Continue until the end of O'COnner's dissent.

http://www.ij.org/pdf_folder/private_property/kelo/kelo-USSC-opinion-6-05.pdf

These are the passages I spoke of. He goes over how the "motivation" clause in the opinion is both unworkable and irrelevant. Then he goes into how today's ruling places zero limitations on the use of eminient domain.

ACPlayer

07-06-2005, 07:58 AM

What the court said in effect was dont look to the courts to set the limits (beyond an interpretation of the facts to see if the reasons offered are pretextual in nature as opposed to well thought thru) the limits should be set where they belong in the state legislatures and by duly elected officials.

THis is as non-activist and conservative a decision as possible.

I happen to think that the reasons and facts of the Kelo taking are a reasonable use of emiinient domain, is consistent with state law and are of public use. I am not so sure that the Hawaii taking is reasonable use of eminent domain. I am sure that the alleged Souter taking is not and any local official who acts on that is doing it for political reasons rather than economic reasons and should be kicked out of office.

Why on earth should 9 judges define the limits of public use for the rest of us? Were these guys elected to do that? Can we kick them out because the community thinks this was a bad use of eminent domain.

lehighguy

07-06-2005, 08:13 AM

We in fact do look to the court to set limits. That is what the constitution is. It is meant to limit the power of the legislator so that there are things that it can't do. Take the patriot act. Does it violate the first amendment? If so, then it should not be allowed.

The court should not make its own laws, but it also shouldn't shirk its own responsibility, to defend the constitution. By interpreting the meaning of "public use" in the way they have they have effectively said that this article of the constitution offers no effective protection against eminient domain. The reason offered in the majority opinion, the "motivation" clause you keep referring too, is flimsy, unworkable, and ultimately logically flawed since motivation is mentioned no where in that article of the constitution.

The supreme court should not take to changing the meaning and spirit of constitutional articles as it pleases. It should interpret them the way they were meant to be interpreted at the time they were written. If the public wishes to change the meaning they have to change the constitution. It is not up to judges to do this. The problems that arrise from such an approach are numeous, it effectively makes judges legislators. It seems clear to me that "public use" was not defined in the way used by the court at the time it was ratified into the constitution.

ACPlayer

07-06-2005, 08:49 AM

THat is exactly what the majority has done. They have said that, in their opinion (and mine), this taking is allowed as a public use which of course is exactly what this is -- a taking for public use.

Now it is the local officials to define what is acceptable to their community. What is right for New London may not be right for Stamford. The homeowner still has the right to appeal the court, to offer evidence that the taking is motivated by other than public purpose (such as the Souter taking).

So, to me, this ruling says that public officials have a right to eminent domain for public use as long as compensation is paid. Duly elected officials should define what they consider reasonable and in the best interest of the community (and one competing interest is to provide some level of peace of mind to homeowners).

While not exactly sanguine about the decision, I think it would have been a travesty for the New London community (based on the discussions in the opinions) if a plan that would help the community as a whole was to be held up even though the dissenters, find that this a public use

To summarize -- the dissenters agree that:

1. Public use is the same as public purpose based on long established interpretation of that term.
2. The role of the judiciary in this process is to examine if a particular case meets the public use requirement. Again according to established interpretation.

They however take a further step in saying that all economic development public purposes are not allowed. This is not their job.

In effect, both are saying that this is a public use and Ms O'Connor is dissenting because in her opinion this will cause widespread takings as there are inadequate guidelines of when a purely private taking should be allowed (allowed in Berman and Hawaii but not Kelo according to her).

THomas' dissent is more principled as he seems to reject Berman and Hawaii and would outlaw all private takings. The others accept private takings, accept public purpose, but want to reject this, self admited, public purpose taking.

A side bars:

-- It is amusing to see that liberal groups and conservatives groups have both found this to be a bad ruling. Only business groups like it -- this is definitely a pro-business ruling by a group of judges that are supposedly liberal.

lehighguy

07-06-2005, 09:27 AM

In the warm-up to the O'Conner segment I highlighted he talks about the differences between pervious decisions and the current one. In previous decisions the court held that eminient domain could be used in cases where the properties themselves were harming the public by thier very nature (delapidated and dangerous buildings in Bermann, monopoly over property in Hawaii). Therefore, thier taking into custody by the state fulfilled the public purpose requirement in and of itself.

However, it is wrong to believe that this situation was the same as the other two. The nieghboorhood in question does not endanger the public through its very existence. They are well maintained homes within a secure community. The City of New London is essentially proposing that it can make even more properous use of already prosperous private property. As Justice O'Conner points out, is there a single property owner among us that can prove beyond a shadow of a doubt that he makes the best possible use of the property in his possession. As a result this case represents a significant increase in the scope of the meaning "public purpose".

Should judges be able to determine what is meant by "public use", I think so. Those words were put into the constitution for a reason. And it is the job of the supreme court to interpret the constitution. That is why we have it as a seperate branch of government, to balance the power of the legislator (though I feel they should interpret the constitution according to original intent, rather then changing the meaning to suit thier viewpoints and beliefs, thus becomming legislators themselves. In other words, I would not expand the meaning of public use to include public purpose, but I will not need to make this case to show Kelo expands government power).

O'Conner makes a case for why he believes this new definition of "public purpose" effectively reduces the "public use" clause of the article to virtual meaninglessness. Making it so that no property is save from the use of eminient domain. The majority has said that this is not the case because of the so-called "motivation" clause you keep referring too.

However, Justice O'Conner takes apart this Motivation clause piece by piece as both being completely unworkable (how are judges to determine motivation) and also theoretically flawed as the constitution itself makes no reference to the motivation of why eminient domain is used. Officials could use eminient domain for entirely selfish reasons, but so long as they could make a case that it would benefit the public, there is absolutely nothing in the constitutional article to forbid it. It seems more likely that the majority has expanded the role of eminient domain and then tried to place restrictions on it of thier own choosing, that have not been detailed at all within the constitution. This is what I would call "activist", redefining constitutional meaning to expand government power when one sees fit and adding constitutional limitations that aren't actually in the constitution.

Side Bar:
I would also strike down Bermann and Hawaii, but I have focused on O'Conner's dissent because it stays within precedent.

Yes, it is a huge boon for businesses and the powerful. Whose influence over politics will only grow as they can now use the government to do things they were never allowed to do before. This was noted in O'Conner's dissent.

ACPlayer

07-06-2005, 09:45 AM

First your use of the pronoun he is jarring when referring to Sandra Day O'Connor.

I think that Kelo follows from Berman and Hawaii in that it is public purpose takings. The limits of what is public purpose is not clear from the Precedent. Kelo is clearly within any reasonable interpretation of public purpose, if you accept that one of the purposes of local government is to improve the economic conditions of the locality.

Should judges be allowed to determine public use -- sure and that is what the majority are saying. The judiciary can still determine whether a particular case is public use by reviewing the facts and backgrounds of that case (the proposed Souter taking is for political not public purpose even with a economic pretext).

An interesting question is whether it is the Supreme Court's job to define a workable limitation of public purpose. I and the majority think that once we accept that this is for a public purpose it is the job of the elected officials (ie the people) to define what is public purpose and whether the public purpose purported in a particular case is sufficient to condemn the property.

Now, as I said, Thomas' decision is more consistent. If you deny that this public purpose you must overturn Berman and MidKiff and essentially say that you cannot transfer property to a private party (which is what bothered me about Hawaii).

lehighguy

07-06-2005, 12:25 PM

I really didn't see much response to the issues O'Conner raised about the "motivation clause" and how it isn't really a clause at all. That's what I was really hoping to get a response on.

Second, I think that you are missing how the "public purpose" defined in Bermann and Midkiff was a significantly narrower definition then the one used in Kelo. This is the point O'Conner tries to make about how this expands govnerment power (he beliefs wrongly).

I do think it is the supreme courts duty to place limitations on "public purpose" It is a constitutional issue and the supreme court is obligated to provide guidance, not kick it down to the legislator or lower courts while providing no real explanation of the courts intent (the majority opinion fails in this regard for reasons mentioned in O'Conners dissent).

I also agree Thomas's decision is much better. It is obviously clearer and relies more closely on the actual words in the constitution. I would overturn Bermann and Midkaff myself, but since judges are hesitent to throw away precedent I have tried to frame debate within O'Conner's viewpoint.

ACPlayer

07-06-2005, 12:45 PM

My response is a direct response to O'Connor.

Consider a question before the court and the court decides that it will decide yea or nay not on the merits of the case in the light of the constitution and legal precedent but on whether or not there is a workable set of tests already established. Denying the question without allowing the legislatures to establish or at least attempt to establish a set of guidelines would be activist. Allowing the activity at least gives the people a chance to speak on what the tests should be. When a particular test is presented in court the courts will rule again.

Consider abortion. The tests of when abortion should be allowed are constantly being debated and refined by the legislatures and the courts. Abortion is constitutional (at least according to present precedent and interpretation) and the tests surrounding the boundaries are being tested constantly, as they should be. If Roe V Wade had said we disallow Abortion because it is not clear what the public policy boundaries are would be a silly argument. If the court had decided it was unconstitutional that would be a different story.

The O'Connor objection to the caveats in the majority are just that. Either go with Thomas or not. Three of the judges including the conservative favorite Scalia chose instead to take away the local communities flexibility while still agreeing that transfer to another private party is acceptabele.

lehighguy

07-06-2005, 01:33 PM

Abortion is not addressed in the constitution. Therefore, it is not a place in which court guidance is required. I have not read Roe v Wade (abortion isn't something I particulury care about), but I imagine that the court found that the constitution didn't prohibit it, therefore the court had no reason to rule it illegal.

Eminient domain is in the constitution. Therefore, the court has an obligation to offer guidance on it. However, the "motivation" clause used by the majority is not in the constitution. You can't add something to the constitution that isn't there without amending it. No where in the article does it stipulate that the motivation of the parties has any bearing on the governments right of eminient domain. As per my example a politician may use eminient domain for entirely selfish reason, but in the process do good for the community. As far as the constitution is concerned his purpose behind doing so doesn't matter, it is not mentioned.

WHat has happened is that the court has steadily increased government eminient domain powers and now seeks to place its own artificial limits upon it. By going from "public use" to "public purpose" to the extended "public purpose" presented in Kelo the court has redefined the original purpose of the article. Now, realizing the potential problems arrising from this redefinition (which was wrong in the first place as per Thomas's arguement) they have attempted to place thier own limits on the power of eminient domain based on thier own moral and ethical judgements, rather then looking to the constitution. Activism to fix the original activism.

"nor shall private property be taken for public use, without just compensation"

Don't see anything about motivation in there.

ACPlayer

07-06-2005, 11:23 PM

You missed my point with the abortion analogy.

The analogy is it would be crazy for the supreme court to say we will disallow abortion becaseu we dont know what subset of abortions should be allowed and which disallowed. They can find to allow or disallow based on the constitution, not on how practical the restrictions on abortions would be. This is essentially what O'Connor has said in Kelo. We should ban it not because it is unconstitutional but because we dont know which economic development taking would be OK and which would not, so just stop the whole thing. She and the other two dissenteres clearly accepts Hawaii, private transfers and the public purpose interpretation of public use. She should have either joined with the majority or with Thomas -- who would vote to overturn Berman/Midkiff.

Which is why O'Connor rejection of the motivation issue is logically invalid.

natedogg

07-06-2005, 11:27 PM

[ QUOTE ]

Why on earth should 9 judges define the limits of public use for the rest of us? Were these guys elected to do that?

[/ QUOTE ]

You know, you're right! Why should the US Supreme Court be allowed to decide the limits of our rights and protections from the state? That's crazy!

Why on earth should 9 judges define the limits of free speech for the rest of us?

Why on earth should 9 judges define the limits of privacy rights for the rest of us? (including abortion)

Why on earth should 9 judges define the limits of due process for the rest of us? (including civil rights legislation).

AC, You're grasping at straws in defense of your untenable position. You are making the same ridiculous arguments I hear from Sean Hannity when he talks about "activist" judges.

natedogg

ACPlayer

07-07-2005, 12:37 AM

You are not following the point.

If you rule that public use is the same as public purpose and you accept Berman and MidKiff as the three dissenters other than Thomas appear to have done (at least in part) then you must say that Kelo is OK. The reasoning that the dissent offers that going with the majority because we dont know which economic development case would be OK and which not (as the majority proposes) makes little sense.

THomas at least comes out and says that the public use is not applicable in this case and backs it up.

I think Gryph's comment that the supreme court should have said they dont have jurisdiction may be the most appropriate.

lehighguy

07-07-2005, 03:56 AM

Look I'm on board with you that the supreme court should have gone with Thomas and overturned those decisions. But let us return to the original discussion:

Can they take Souter's house? You claim they can't because of the so-called "motivation" clause. As pointed out in the defense, the majority has no grounds by which to limit the definition of "public purpose" (once accepted) with the motivation clause. No where in the article is the motivation for the use of eminient domain mentioned. As far as the article is concerned, the motivation for the taking is irrelevant. On what grounds does the majority start writing things into the constitution that aren't there.

etgryphon

07-07-2005, 10:58 AM

[ QUOTE ]
You missed my point with the abortion analogy.

The analogy is it would be crazy for the supreme court to say we will disallow abortion becaseu we dont know what subset of abortions should be allowed and which disallowed. They can find to allow or disallow based on the constitution, not on how practical the restrictions on abortions would be. This is essentially what O'Connor has said in Kelo. We should ban it not because it is unconstitutional but because we dont know which economic development taking would be OK and which would not, so just stop the whole thing. She and the other two dissenteres clearly accepts Hawaii, private transfers and the public purpose interpretation of public use. She should have either joined with the majority or with Thomas -- who would vote to overturn Berman/Midkiff.

Which is why O'Connor rejection of the motivation issue is logically invalid.

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The abortion issue is completely different. Roe v. Wade ruled that a LAW preventing abortions was unconstitutional because their is an inalienable "right to an abortion" that is clearly /images/graemlins/confused.gif stated in the Constitution. The "right to an abortion" comes from the inalienable "right to privacy" which is implied in the in the Constitution. It is not really a part of the Constitution unless you combine the 3rd, 4th, 5th and 9th Amendments and then you can say that it is a right.

Roe v. Wade opins that a LAW and an ACT OF THE STATE was unconsitutional. Kelo rules that an ACT OF THE LOCALITY is within the bounds of the Consitution. Really different.

-Gryph

etgryphon

07-07-2005, 11:04 AM

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I think Gryph's comment that the supreme court should have said they dont have jurisdiction may be the most appropriate.

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Thanks AC. I just think that we as the public need to say "butt out" of states' affairs to the SCOTUS. If the Supreme Court of CT says that the Kelo Case is part of the CT State Constitution's "Public Use". Bummer. I guess that I won't live in CT ever (Sorry Foxwoods) Or if I do I will fight to have the state constitution changed.

How do we tell Justices to butt out? By impeaching them when they overstep their authority. Which is happening more and more.

-Gryph

ACPlayer

07-07-2005, 11:25 AM

[ QUOTE ]
Roe v. Wade opins that a LAW and an ACT OF THE STATE was unconsitutional

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Yes, but if they had said that we will allow abortion because we dont know how and when to limit it. That is by opining on the public consequences rather than by the consitutionality.

That is what O'Connor did. She (and rehnquist/scalia) opined that the public consequences of Kelo would be harmful (rich get to run over the common person). I would have to say that logic is flawed for a court but totally acceptable for a legislature. The majority recognized that threat but were unwilling to legislate from the bench on how to mitigate that threat.

lehighguy

07-07-2005, 01:41 PM

Is abortion really considered a constitutional right?
If congress made it illegal would the supreme court therefore have to overturn that ruling?

I have not read Roe v Wade so give me full background.

etgryphon

07-07-2005, 02:02 PM

[ QUOTE ]
Is abortion really considered a constitutional right?
If congress made it illegal would the supreme court therefore have to overturn that ruling?

I have not read Roe v Wade so give me full background.

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Yes. It is considered an inalienable right.

It was a growth out of the "Right to Privacy" which is implied by the 3rd, 4th, 5th and 9th Amendments. The "Right to an abortion" is an extension saying that the Government has no right to outlaw what goes on in a person namely the woman's body during a pregnancy including termination. And by extension using the "Commerce Clause" and the 14th Amendment the States are prohibited from limiting this right as well. They ruled that States and the Federal Government can regulate the practice of abortion as long as it doesn't produce an unjust burden on the woman to get an abortion should she so choose. That is why certain Parental Notification\Consent rules are allowed.

That is why all those partial-birth abortion laws are overturned. They are overturned because they pass constitutional muster of exemptions of health of the mother and unjust burden.

-Gryph

lehighguy

07-07-2005, 02:13 PM

That seems like an awfully rediculous web they've had to construct to make abortion a "right". Where do they get of telling the legislator they can't pass laws on the subject when it isn't mentioned at all in the constitution.

I had always thought that the constitution didn't forbid abortion and that was what they found. This ruling is rather rediculous. Why even bother using the constitution at all anymore, just write your own damn laws as you please.

etgryphon

07-07-2005, 02:26 PM

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That seems like an awfully rediculous web they've had to construct to make abortion a "right". Where do they get of telling the legislator they can't pass laws on the subject when it isn't mentioned at all in the constitution.

I had always thought that the constitution didn't forbid abortion and that was what they found. This ruling is rather rediculous. Why even bother using the constitution at all anymore, just write your own damn laws as you please.

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Exactly. I just think that it is impressive anytime a new "right" is "discovered" that has escaped the notice of people for hundreds of years.

That right may exist and if it does lets go through the process to put it in the Constitution. I'll fight for it right along side of you if I believe in it.

That is democracy. That is the beautiful country that we have been given. Not the rapid decay to judical tyranny that America is rapidly becoming.

Just like the push to make a Constitutional Amendment on Flag Burning. I hate flag burning but I will fight its inclusion in the Constitution because I think it is a valid expression of Freedom of Speech. But if it passes I wont argue that it is unconstitutional or wrong because the democratic process was followed.

-Gryph