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.
That’s a good guess. How often are there houses near the center of a small town?
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.
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.
Cites?
Modern freeways are all private corporations? News to me.
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.
I was referring to railroads, obviously. I never mentioned freeways. Bring that up with the individual who did.
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.
Hawaii Housing Authority v. Midkiff, 467 U.S. 229 (1984):
Berman v. Parker, 348 U.S. 26 (1954):
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.”
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)**: 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.
[QUOTE=Magiver]
My position mirrors that of the 4 dissenting Supreme Court Justices. **From your site ** - **
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.
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.
I would add that I understand the rationale of deferring to local legislative bodies but only in the absence of Federal law.
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.
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.
Saying that you disagree with the court’s decision is very different from concluding that:
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?
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.
I don’t think this is correct.
Kelo itself says:
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.
And the next few paragraphs of Kelo say:
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 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.