Kelo v. New London Update
Kevin notes that things are not going well for the plaintiffs.
Marty reports that, based on the impression left by the oral arguments, the government-side is going to win today’s property rights cases overwhelmingly.
In Kelo, the plaintiffs may get as many as three votes: Scalia; Thomas (who did not ask any questions); and Rehnquist (who was not there). But it was clear to O’Connor and Kennedy that the Court would have to overrule Midkiff and Berman to rule for the plaintiffs, an approach for which there was no majority. The only possible silver lining for property-rights advocates was that Justices Kennedy, Souter, O’Connor and Breyer all expressed concern that the traditional measures of just compensation under the Fifth Amendment may be subject to reconsideration. Justice Kennedy acknowledged the question wasn’t presented in Kelo, but the Court’s opinion or a concurrence may raise the issue, opening a new avenue of property-rights litigation.
I hope not. It would really mark the end of property rights in this country.
February 23rd, 2005 at 11:17 am
he only possible silver lining for property-rights advocates was that Justices Kennedy, Souter, O’Connor and Breyer all expressed concern that the traditional measures of just compensation under the Fifth Amendment may be subject to reconsideration.
Helloooo?
The compensation is irrelevant. The price paid can never be fair if I don’t enter into the market at a time of my choosing with no ability to walk away from negotiation.
As I predicted here and on Meanderthal, it appears the justices are going to completely avoid any attempt to define “public use.” What a bunch of whores. There are several bright line definitions available.
For chrissake, New London argued that no reasonability test was required for a taking and that replacing a Motel 6 with a Ritz Carlton was a good enough reason to seize private property and transfer it to someone else.
No one on the court disagreed as far as I can tell.
They’re going to dismiss this as an issue best left to the states. Too bad it isn’t about marijuana laws or vote recounts.
Fucking bastards.
How do I apply to be a favored son of the Crony State?
February 23rd, 2005 at 11:17 am
That should be “reasonableness” test. I go to bed now.
February 23rd, 2005 at 12:02 pm
Something occurred to me while I was reading a couple of the stories on this yesterday.
A couple of stories (and I can’t remember where I saw them) mentioned that there were no concrete plans for the land in dispute, and thus could not even attempt to quantify what, if any, public benefit would result. (I know, ‘public benefit’ isn’t an acceptable reason to take private property, but bear with me here.)
Given this Court’s propensity for issuing annoyingly narrow (and, IMO, weasely) rulings, this could be their way out here. They could rule in favor of Kelo, but base it not on the fact that the land is being given to another private party, but the fact that the State can’t say what the property will be used for.
I don’t see how this would overturn the Berman v Parker decision (although I admint I haven’t read the actual decision), because the Kelo properties haven’t been declared blighted, and neither was the larger area in which they are located.
February 23rd, 2005 at 12:47 pm
no concrete plans for the land in dispute, and thus could not even attempt to quantify what, if any, public benefit would result. (I know, ‘public benefit’ isn’t an acceptable reason to take private property, but bear with me here.)
But, according to the Fifth Amendment, the standard is really “public use,” not “public benefit.”
“nor shall private property be taken for public use, without just compensation.”
It’s pretty damned clear what this means. If you take my property, then it must be for a public use. That is, the property itself will be used by the public – they will tread on it, drive on it, sit on it, sleep on it, grow food on it, shit on it, or swim in it.
If potential tax revenue generated by the property constitutes a “use,” then we are in a lot of trouble. What about employment opportunities afforded by the property? What about establishing a picturesque skyline that some hip designer tells the community will increase tourism and reduce violent crime?
What’s next, having to pass an annual best economic use test or be forced to sell your property to the municipality with an option to lease it back from the government until a developer can be found?
The Supremes are making a huge mistake.
February 23rd, 2005 at 1:48 pm
Actually, it’s not clear at all. It’s what courts have ruled, and reasonably so IMO, but it’s not there in the literal text of the Fifth Amendment. All that is is a rule that if you take my property and it is for a public use, then you must pay just compensation. If you take it for a non-public use, the Fifth Amendment by its terms does not apply at all.
February 23rd, 2005 at 3:04 pm
If you take it for a non-public use, the Fifth Amendment by its terms does not apply at all.
Maybe it’s time for another amendment to clear things up.
I’ll conjecture wildly and wager that the possibility of government seizure of property for private use was so unimaginable to the framers, that it never crossed their mind to specifically prohibit it.