Poetic Justice for Supreme Court Justice?

[ACPlayer]

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]

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]

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]

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]

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]

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]

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]

[ 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]

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]

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.