# Eminent domain and payback for Souter **URL:** \ **Category:** Great Debates\ **Created:** [January 23, 2006, 6:57pm UTC](https://boards.straightdope.com/t/eminent-domain-and-payback-for-souter/341282 "2006-01-23T18:57:35Z")\ **Posts on this page:** 20\ **Page:** 5
**Author:** ![Acsenray](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/acsenray/32/4519_2.png) [@Acsenray](https://boards.straightdope.com/u/Acsenray)\ **Post date:** [January 26, 2006, 3:16pm UTC](https://boards.straightdope.com/t/eminent-domain-and-payback-for-souter/341282/81 "2006-01-26T15:16:57Z")
> [@Skott](#): > > At this point, wouldn’t it require a contitutional amendment, since any lower-level law could be considered “unconstitional” and thrown out? No, all the court said was that the Constitution does not prohibit what the state government did. A state legislature would be free to limit its own power in this area. ---
**Author:** ![saoirse](https://avatars.discourse-cdn.com/v4/letter/s/5daacb/32.png) [@saoirse](https://boards.straightdope.com/u/saoirse)\ **Post date:** [January 26, 2006, 3:23pm UTC](https://boards.straightdope.com/t/eminent-domain-and-payback-for-souter/341282/82 "2006-01-26T15:23:12Z")
> [@SaintCad](#): > > How many houses were seized and torn down to make the railroad? (My guess is close to zero) That’s a good guess. How often are there houses near the center of a small town? > [@SaintCad](#): > > Is the railroad issues over eminate domain similar to modern day freeways? (yes)? Ah, so you do believe government can condemn land and give it to private corporations. You just don’t like what the city of New London did. I guess we agree. ---
**Author:** ![Magiver](https://avatars.discourse-cdn.com/v4/letter/m/4491bb/32.png) [@Magiver](https://boards.straightdope.com/u/Magiver)\ **Post date:** [January 26, 2006, 4:10pm UTC](https://boards.straightdope.com/t/eminent-domain-and-payback-for-souter/341282/83 "2006-01-26T16:10:30Z")
> [@Zakalwe](#): > > How many times does this have to be corrected? They did NOT “legislate from the bench”. There are laws about this. They were passed by the **Connecticut legislature**. **New London’s government** used them. Someone objected to the manner of their use and asked a court to decide if the use of the law was in accordance with the Constituion. The Supreme Court said New London used them in an acceptable manner. That’s it. No legislation. No “activist” judges. No “legislation from the bench”. States cannot trump Federal law. Which is why it landed in the SC in the first place. We had accepted constitutional law regarding eminent domain and the SC tossed it. There were restrictions prior to the decision and now they’re none. That’s legislating from the bench. That is not the function of the court. ---
**Author:** ![Acsenray](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/acsenray/32/4519_2.png) [@Acsenray](https://boards.straightdope.com/u/Acsenray)\ **Post date:** [January 26, 2006, 4:18pm UTC](https://boards.straightdope.com/t/eminent-domain-and-payback-for-souter/341282/84 "2006-01-26T16:18:29Z")
> [@Magiver](#): > > We had accepted constitutional law regarding eminent domain and the SC tossed it. There were restrictions prior to the decision and now they’re none. Cites? ---
**Author:** ![Ludovic](https://avatars.discourse-cdn.com/v4/letter/l/7ab992/32.png) [@Ludovic](https://boards.straightdope.com/u/Ludovic)\ **Post date:** [January 26, 2006, 4:23pm UTC](https://boards.straightdope.com/t/eminent-domain-and-payback-for-souter/341282/85 "2006-01-26T16:23:02Z")
> [@saoirse](#): > > Ah, so you do believe government can condemn land and give it to private corporations. You just don’t like what the city of New London did. I guess we agree. Modern freeways are all private corporations? News to me. ---
**Author:** ![Polycarp](https://avatars.discourse-cdn.com/v4/letter/p/82dd89/32.png) [@Polycarp](https://boards.straightdope.com/u/Polycarp)\ **Post date:** [January 26, 2006, 4:50pm UTC](https://boards.straightdope.com/t/eminent-domain-and-payback-for-souter/341282/86 "2006-01-26T16:50:49Z")
> [@Magiver](#): > > States cannot trump Federal law. Which is why it landed in the SC in the first place. We had accepted constitutional law regarding eminent domain and the SC tossed it. There were restrictions prior to the decision and now they’re none. That’s legislating from the bench. That is not the function of the court. Where? What decisions or statutes **prohibited** taking in behalf of private entities for quasi-government-beneficial ends that were overturned? Taking in behalf of economic development has been around since at least the 1960s, when “urban renewal” was all the rage. As somebody pointed out in earlier argumentation on this, “constitutional” and “morally right” are not synonymous, much though we’d like them to be. The Connecticut state legislature empowered its municipalities to exercise eminent domain for economic development. The New London municipal government exercised those powers for what it considered ultimate public benefit. SCOTUS upheld these actions as constitutional. Where in all that do you see legislating from the bench? I completely agree that it’s ignoring the “public use” phrase – although IMO there’s a bit of balancing which might be done there. I’m not convinced that there’s a constitutional right to be a “dog in the manger” with regard to your property and to the detriment of your neighbors. That the New London case was a travesty of what eminent domain for economic development is supposed to be, I think most people would agree. That it was therefore unconstitutional? Well, for once I’m going to have to stand alongside the judicial self-restraint crew. However you may feel about the actions of the City of New London, SCOTUS was asked to review the constitutionality of their acts and upheld them as in fact constitutional. It was not asked to render its judgment as to the desirability or wisdom of them. Everybody from the Family Research Council to NAMBLA has the right to free association and advocacy of their particular agendas. You don’t have to like either group to uphold their right to do so. Same thing here: New London was acting under cover of a law that was reviewed and deemed constitutional. You don’t have to like New London’s actions to accept that. ---
**Author:** ![saoirse](https://avatars.discourse-cdn.com/v4/letter/s/5daacb/32.png) [@saoirse](https://boards.straightdope.com/u/saoirse)\ **Post date:** [January 26, 2006, 5:29pm UTC](https://boards.straightdope.com/t/eminent-domain-and-payback-for-souter/341282/87 "2006-01-26T17:29:44Z")
> [@Ludovic](#): > > Modern freeways are all private corporations? News to me. > [@saoirse](#): > > the government condemned land and gave it to private companies that operated railroads. They also “checkerboarded,” rendering adjacent proprty nearly useless, so the railroads could buy other land cheaply. Local governments would condemn land right in the middle of town in order to entice railroads to come in. Again, this is not new. I was referring to railroads, obviously. I never mentioned freeways. Bring that up with the individual who did. ---
**Author:** ![Digital\_Stimulus](https://avatars.discourse-cdn.com/v4/letter/d/aeb1de/32.png) [@Digital\_Stimulus](https://boards.straightdope.com/u/Digital_Stimulus)\ **Post date:** [January 26, 2006, 6:03pm UTC](https://boards.straightdope.com/t/eminent-domain-and-payback-for-souter/341282/88 "2006-01-26T18:03:37Z")
> [@Magiver](#): > > States cannot trump Federal law. Which is why it landed in the SC in the first place. We had accepted constitutional law regarding eminent domain and the SC tossed it. There were restrictions prior to the decision and now they’re none. That’s legislating from the bench. That is not the function of the court. Why do you gleefully continue to argue from ignorance (disregarding your factually incorrect statement about “why it landed in the SC in the first place”)? Get thee to one of my earlier posts – I think the Cornell law syllabus for this case would do. You’ll find links to the precedents there. ---
**Author:** ![Acsenray](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/acsenray/32/4519_2.png) [@Acsenray](https://boards.straightdope.com/u/Acsenray)\ **Post date:** [January 26, 2006, 6:29pm UTC](https://boards.straightdope.com/t/eminent-domain-and-payback-for-souter/341282/89 "2006-01-26T18:29:36Z")
Hawaii Housing Authority v. Midkiff, 467 U.S. 229 (1984): > [@](#): > > To be sure, the Court’s cases have repeatedly stated that “one person’s property may not be taken for the benefit of another private person without a justifying public purpose, even though compensation be paid.” … Thus, in Missouri Pacific R. Co. v. Nebraska, 164 U.S. 403 (1896), where the “order in question was not, and was not claimed to be, . . . a taking of private property for a public use under the right of eminent domain,” … the Court invalidated a compensated taking of property for lack of a justifying public purpose. But **where the exercise of the eminent domain power is rationally related to a conceivable public purpose, the Court has _never_ held a compensated taking to be proscribed by the Public Use Clause**. Berman v. Parker, 348 U.S. 26 (1954): > [@](#): > > We deal, in other words, with what traditionally has been known as the police power. An attempt to define its reach or trace its outer limits is fruitless, for each case must turn on its own facts. The definition is essentially the product of legislative determinations addressed to the purposes of government, purposes neither abstractly nor historically capable of complete definition. \*\*Subject to specific constitutional limitations, when the legislature has spoken, the public interest has been declared in terms well-nigh conclusive. In such cases the legislature, not the judiciary, is the main guardian of the public needs to be served by social legislation \*\*, whether it be Congress legislating concerning the District of Columbia … or the States legislating concerning local affairs. … **This principle admits of no exception merely because the power of eminent domain is involved.** The role of the judiciary in determining whether that power is being exercised for a public purpose is an extremely narrow one. > > … > > Once the object is within the authority of Congress, the right to realize it through the exercise of eminent domain is clear. For the power of eminent domain is merely the means to the end. … Once the object is within the authority of Congress, the means by which it will be attained is also for Congress to determine. Here one of the means chosen is the use of private enterprise for redevelopment of the area. Appellants argue that this makes the project a taking from one businessman for the benefit of another businessman. But the means of executing the project are for Congress and Congress alone to determine, once the public purpose has been established. … The public end may be as well or better served through an agency of private enterprise than through a department of government - or so the Congress might conclude. We cannot say that public ownership is the sole method of promoting the public purposes of community redevelopment projects. The cases that the _Kelo_ decision cites go all the way back to 1896 when _Fallbrook Iriigation District v. Bradley_, 164 U.S. 112 (1896), ruled that the “public use” in the Constitution means a “public purpose.” ---
**Author:** ![Magiver](https://avatars.discourse-cdn.com/v4/letter/m/4491bb/32.png) [@Magiver](https://boards.straightdope.com/u/Magiver)\ **Post date:** [January 27, 2006, 1:33am UTC](https://boards.straightdope.com/t/eminent-domain-and-payback-for-souter/341282/90 "2006-01-27T01:33:13Z")
> [@Digital Stimulus](#): > > Why do you gleefully continue to argue from ignorance (disregarding your factually incorrect statement about “why it landed in the SC in the first place”)? Get thee to one of my earlier posts – I think the Cornell law syllabus for this case would do. You’ll find links to the precedents there. My position mirrors that of the 4 dissenting Supreme Court Justices. \*\*From your site \*\* - \*\* [Quote] ([http://www.law.cornell.edu/supct/html/04-108.ZD.html](http://www.law.cornell.edu/supct/html/04-108.ZD.html))\*\*: Today the Court abandons this long-held, basic limitation on government power. Under the banner of economic development, all private property is now vulnerable to being taken and transferred to another private owner, so long as it might be upgraded–i.e., given to an owner who will use it in a way that the legislature deems more beneficial to the public–in the process. To reason, as the Court does, that the incidental public benefits resulting from the subsequent ordinary use of private property render economic development takings “for public use” is to wash out any distinction between private and public use of property–and thereby effectively to delete the words “for public use” from the Takings Clause of the Fifth Amendment. _ **Justice O’Connor, Chief Justice Rehnquist, Justice Scalia and Justice Thomas.** _ Their opinion that this ruling effectively removes the words “for public use” from the 5th amendment can logically be viewed as legislating from the bench. That’s my opinion. It’s not just my opinion that the court decision was wrong. 4 of 9 Supreme Court Justices felt that way. Put another way, in a court of 9 people this decision was resolved by the vote of a single person. A single, non-elected person was able to alter the meaning of the Constitution. ---
**Author:** ![Polycarp](https://avatars.discourse-cdn.com/v4/letter/p/82dd89/32.png) [@Polycarp](https://boards.straightdope.com/u/Polycarp)\ **Post date:** [January 27, 2006, 2:11am UTC](https://boards.straightdope.com/t/eminent-domain-and-payback-for-souter/341282/91 "2006-01-27T02:11:06Z")
[QUOTE=Magiver] My position mirrors that of the 4 dissenting Supreme Court Justices. \*\*From your site \*\* - \*\* > [@](#): > > ([http://www.law.cornell.edu/supct/html/04-108.ZD.html](http://www.law.cornell.edu/supct/html/04-108.ZD.html))\*\*: Today the Court abandons this long-held, basic limitation on government power. Under the banner of economic development, all private property is now vulnerable to being taken and transferred to another private owner, so long as it might be upgraded–i.e., given to an owner who will use it in a way that the legislature deems more beneficial to the public–in the process. To reason, as the Court does, that the incidental public benefits resulting from the subsequent ordinary use of private property render economic development takings “for public use” is to wash out any distinction between private and public use of property–and thereby effectively to delete the words “for public use” from the Takings Clause of the Fifth Amendment. _ **Justice O’Connor, Chief Justice Rehnquist, Justice Scalia and Justice Thomas.** _ > > Their opinion that this ruling effectively removes the words “for public use” from the 5th amendment can logically be viewed as legislating from the bench. That’s my opinion. > > It’s not just my opinion that the court decision was wrong. 4 of 9 Supreme Court Justices felt that way. Put another way, in a court of 9 people this decision was resolved by the vote of a single person. A single, non-elected person was able to alter the meaning of the Constitution. If true, that would be worth Pitting, if not more public action. However, **it isn’t**. Read **acsenray** ’s cites from court cases, dating back **112 years**. What was reinterpreted was not **the Constitution**. It was **your opinion of what the Constitution means** that was modified. There are bills in process now, in both Congress and several state legislatures (and I think a couple of the latter have been enacted), prohibiting public funds from being spent for eminent doman processes that ultimately benefit private enterprise. Those laws too are constitutional. I’m not overly fond of the “rational basis” test. But as **Bricker** will tell you, it means that **the elected legislative bodies** get the final say on what public policy is, if the court can see any possible rational sense in what the legislature did. It doesn’t have to be **the best, right** action for the legislature to have taken, it doesn’t even have to be one that seems morally sound to the judge. What it means is, could somebody somewhere possibly have rationally decided that this was a good idea for that city/county/state to do? If it passes that very minimal test, it’s good law. So, no, one unelected person didn’t make that decision. A state legislature and a city council did. All the courts did was say that it was constitutionally acceptable. ---
**Author:** ![Magiver](https://avatars.discourse-cdn.com/v4/letter/m/4491bb/32.png) [@Magiver](https://boards.straightdope.com/u/Magiver)\ **Post date:** [January 27, 2006, 2:59am UTC](https://boards.straightdope.com/t/eminent-domain-and-payback-for-souter/341282/92 "2006-01-27T02:59:04Z")
> [@Polycarp](#): > > If true, that would be worth Pitting, if not more public action. > > However, **it isn’t**. > > Read **acsenray** ’s cites from court cases, dating back **112 years**. > > What was reinterpreted was not **the Constitution**. It was **your opinion of what the Constitution means** that was modified. My opinion and that of 4 Supreme Court Justices. They cited Constitutional law in their opinion. There is no speculation in the 5th amendment that it can be lessened through individual legislation. They reinterpreted eminent domain by extending the 14th Amendment. ---
**Author:** ![Magiver](https://avatars.discourse-cdn.com/v4/letter/m/4491bb/32.png) [@Magiver](https://boards.straightdope.com/u/Magiver)\ **Post date:** [January 27, 2006, 3:05am UTC](https://boards.straightdope.com/t/eminent-domain-and-payback-for-souter/341282/93 "2006-01-27T03:05:43Z")
I would add that I understand the rationale of deferring to local legislative bodies but only in the absence of Federal law. ---
**Author:** ![Digital\_Stimulus](https://avatars.discourse-cdn.com/v4/letter/d/aeb1de/32.png) [@Digital\_Stimulus](https://boards.straightdope.com/u/Digital_Stimulus)\ **Post date:** [January 27, 2006, 4:00am UTC](https://boards.straightdope.com/t/eminent-domain-and-payback-for-souter/341282/94 "2006-01-27T04:00:44Z")
> [@Magiver](#): > > My position mirrors that of the 4 dissenting Supreme Court Justices. > \ > It’s not just my opinion that the court decision was wrong. 4 of 9 Supreme Court Justices felt that way. Yes, it is your _opinion_, and that of many others. However, let’s look at what you said: > [@Magiver](#): > > States cannot trump Federal law. I would ask you for a cite to the specific Federal law that clearly specifies the meaning of “public use”. Furthermore, I challenge you to find any reputable cite that says that the SC would not defer to State law in eminent domain cases, if such were in play. And note, please, that I’m not trying to split hairs; my point is that _there is no codified federal law containing that definition_. Rather, there are only court decisions, for which arguments on both sides can be found (as **ascenray** showed). In other words, there is some ambiguity on the matter – if I had my druthers, a Constitutional amendment would be enacted that settled the issue once and for all so that this form of injustice could not continue. Perhaps you’re simply overstating your case a tad; a little inexactness is understandable. But as much as opinion may play a penultimate role in court decisions, it is not fact and should not be put forth as such. ---
**Author:** ![Apos](https://avatars.discourse-cdn.com/v4/letter/a/838e76/32.png) [@Apos](https://boards.straightdope.com/u/Apos)\ **Post date:** [January 27, 2006, 7:07am UTC](https://boards.straightdope.com/t/eminent-domain-and-payback-for-souter/341282/95 "2006-01-27T07:07:44Z")
If a judge rules that regulation of smoking is a state issue, not an issue to be controlled by the federal courts, does that mean a reasonable response is to rush to pass a state law forcing Scalia to allow people to smoke on his own property? These people are acting like fools. The law is not a tool for carrying out revenge for someone disagreeing with which branch or level of government regulates what. ---
**Author:** ![Acsenray](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/acsenray/32/4519_2.png) [@Acsenray](https://boards.straightdope.com/u/Acsenray)\ **Post date:** [January 27, 2006, 2:30pm UTC](https://boards.straightdope.com/t/eminent-domain-and-payback-for-souter/341282/96 "2006-01-27T14:30:32Z")
> [@Magiver](#): > > My position mirrors that of the 4 dissenting Supreme Court Justices. Saying that you _disagree_ with the court’s decision is very different from concluding that: > [@](#): > > We had accepted constitutional law regarding eminent domain and the SC tossed it. There were restrictions prior to the decision and now they’re none. That’s legislating from the bench. I’m not sure I agree with the court’s conclusion either, but your characterisation of what the court did is fundamentally dishonest, unduly alarmist, and, most probably, intended to serve as propaganda to paint the left (or, really, the center) of American political opinion in a way that fundamentally makes no sense. Do you honestly think that members of the Supreme Court are sitting there plotting how to overturn Constitutional law? In any case, it would make no sense. What secret cabal does the _Kelo_ decision serve to empower? It’s not giving local governments any new power – they’ve been doing this kind of thing for decades – and, anyway, what nefarious end could they possibly be serving by doing so? ---
**Author:** ![Polycarp](https://avatars.discourse-cdn.com/v4/letter/p/82dd89/32.png) [@Polycarp](https://boards.straightdope.com/u/Polycarp)\ **Post date:** [January 27, 2006, 2:58pm UTC](https://boards.straightdope.com/t/eminent-domain-and-payback-for-souter/341282/97 "2006-01-27T14:58:01Z")
> [@Magiver](#): > > My opinion and that of 4 Supreme Court Justices. They cited Constitutional law in their opinion. There is no speculation in the 5th amendment that it can be lessened through individual legislation. They reinterpreted eminent domain by extending the 14th Amendment. My long post last night seems to have turned into hamster chow. In sum, though: SCOTUS has **always** declined to incorporate the Bill of Rights _carte blanche_ into the Fourteenth, accepting principles selected from it on a case-by-case basis. In a couple of cases: jury trial and grand jury felony indictment, it has flat-out refused to consider them binding on the states, so long as the equivalent state process preserves what the Supremes consider “due process of law,” the “fundamental right” which those two Bill of Rights provisions make specific in Federal court. That you may not be deprived of property except by due process of law is a right guaranteed as against both Federal and state action. That you must receive just compensation and that the land must be taken for public use are Fifth Amendment rights which are guaranteed against Federal action only. Like you, I would have thought that the guarantees would be incorporated in the Fourteenth as against state action as well. But SCOTUS didn’t so conclude. So you may rest assured that the Feds. can’t take your house for a Haliburton project. But that doesn’t mean the state politicos can’t take it for whatever happens to warm the cockles of their hearts. ---
**Author:** ![Acsenray](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/acsenray/32/4519_2.png) [@Acsenray](https://boards.straightdope.com/u/Acsenray)\ **Post date:** [January 27, 2006, 3:37pm UTC](https://boards.straightdope.com/t/eminent-domain-and-payback-for-souter/341282/98 "2006-01-27T15:37:36Z")
> [@Polycarp](#): > > That you must receive just compensation and that the land must be taken for public use are Fifth Amendment rights which are guaranteed against Federal action only. I don’t think this is correct. _Kelo_ itself says: > [@](#): > > Two polar propositions are perfectly clear. On the one hand, it has long been accepted that the sovereign may not take the property of A for the sole purpose of transferring it to another private party B, even though A is paid just compensation. On the other hand, it is equally clear that a State may transfer property from one private party to another if future “use by the public” is the purpose of the taking; the condemnation of land for a railroad with common-carrier duties is a familiar example. Neither of these propositions, however, determines the disposition of this case. Remember, we’re talking about the action of a local government, so the “sovereign” and the “State” referred to in this case is the State of Connecticut. I infer that the state government is subject to the requirement of compensation. ---
**Author:** ![Acsenray](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/acsenray/32/4519_2.png) [@Acsenray](https://boards.straightdope.com/u/Acsenray)\ **Post date:** [January 27, 2006, 3:41pm UTC](https://boards.straightdope.com/t/eminent-domain-and-payback-for-souter/341282/99 "2006-01-27T15:41:29Z")
And the next few paragraphs of _Kelo_ say: > [@](#): > > As for the first proposition, the City would no doubt be forbidden from taking petitioners’ land for the purpose of conferring a private benefit on a particular private party. … 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**. The takings before us, however, would be executed pursuant to a “carefully considered” development plan. … The trial judge and all the members of the Supreme Court of Connecticut agreed that there was no evidence of an illegitimate purpose in this case. … Therefore, as was true of the statute challenged in Midkiff …, the City’s development plan **was not adopted “to benefit a particular class of identifiable individuals.”** > > On the other hand, this is not a case in which the City is planning to open the condemned land–at least not in its entirety–to use by the general public. Nor will the private lessees of the land in any sense be required to operate like common carriers, making their services available to all comers. But although such a projected use would be sufficient to satisfy the public use requirement, **this “Court long ago rejected any literal requirement that condemned property be put into use for the general public.”** … Indeed, while many state courts in the mid-19th century endorsed “use by the public” as the proper definition of public use, that narrow view steadily eroded over time. Not only was the “use by the public” test difficult to administer (e.g., what proportion of the public need have access to the property? at what price?),… but it proved to be impractical given the diverse and always evolving needs of society… 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.”** … Thus, in a case upholding a mining company’s use of an aerial bucket line to transport ore over property it did not own, Justice Holmes’ opinion for the Court stressed “the inadequacy of use by the general public as a universal test.” … **We have repeatedly and consistently rejected that narrow test ever since.** … > > The disposition of this case therefore turns on the question whether the City’s development plan serves a “public purpose.” Without exception, our cases have defined that concept broadly, reflecting **our longstanding policy of deference to legislative judgments in this field.** ---
**Author:** ![Magiver](https://avatars.discourse-cdn.com/v4/letter/m/4491bb/32.png) [@Magiver](https://boards.straightdope.com/u/Magiver)\ **Post date:** [January 27, 2006, 4:04pm UTC](https://boards.straightdope.com/t/eminent-domain-and-payback-for-souter/341282/100 "2006-01-27T16:04:09Z")
> [@Digital Stimulus](#): > > Yes, it is your _opinion_, and that of many others. However, let’s look at what you said: > > I would ask you for a cite to the specific Federal law that clearly specifies the meaning of “public use”. Furthermore, I challenge you to find any reputable cite that says that the SC would not defer to State law in eminent domain cases, if such were in play. And note, please, that I’m not trying to split hairs; my point is that _there is no codified federal law containing that definition_. Rather, there are only court decisions, for which arguments on both sides can be found (as **ascenray** showed). In other words, there is some ambiguity on the matter – if I had my druthers, a Constitutional amendment would be enacted that settled the issue once and for all so that this form of injustice could not continue. > > Perhaps you’re simply overstating your case a tad; a little inexactness is understandable. But as much as opinion may play a penultimate role in court decisions, it is not fact and should not be put forth as such. OK, let me start by saying you’re not splitting hairs regarding the depth of what “public use” means. I will grant that it wasn’t spelled out to a degree that makes it easy to use. My line of logic, which I believe the dissenting Judges were trying to convey, is that it was specifically mentioned in a Federal amendment for the purpose of protecting the right to own property. That is a singular purpose unto itself. The intent of the clause is not ambivalent even if the directives are. In this case, the “public use” qualifier for eminent domain was left to interpretation on a local level. Per Justice Stevens remarks: “that local governments should be afforded wide latitude in seizing property for land-use decisions of a local nature”. (Wikapedia). The right to own property is as basic a concept as freedom of speech. Such laws operate under the premise that we are a Democratic Republic. Government agencies exist to serve the people, not the other way around. In this instance, local profit was held above a personal right. I think [Justice O’Connor](http://en.wikipedia.org/wiki/Kelo_v._New_London) nailed it when she suggested that the use of this power in a reverse Robin Hood fashion—take from the poor, give to the rich—would become the norm, not the exception: “Any property may now be taken for the benefit of another private party, but the fallout from this decision will not be random. The beneficiaries are likely to be those citizens with disproportionate influence and power in the political process, including large corporations and development firms.” She argued that the decision eliminates “any distinction between private and public use of property — and thereby effectively [deletes] the words ‘for public use’ from the Takings Clause of the Fifth Amendment”. (Wikapedia). I understand the court’s reluctance to codify “public use”. That’s a legislative function. Congress may eventually act on it. However, when finding for a decision that involves Constitutional law they not only didn’t act in their capacity, they redefined the law downward to a local level instead of redirecting it back to Congress. I agree with the dissenting Judges on a fundamental basis. I take the right to own property seriously. Any legal deference to this should side on the concept of owning property, not the right to take it away. [Previous page](https://boards.straightdope.com/t/eminent-domain-and-payback-for-souter/341282.md?page=4) [Next page](https://boards.straightdope.com/t/eminent-domain-and-payback-for-souter/341282.md?page=6)